Microsoft co-founder Paul Allen has filed a patent lawsuit that is breathtaking in scope - even by the ridiculous standards of modern patent claims. Defendants include Google, Apple, Yahoo, Netflix, Facebook, AOL, eBay, Youtube, Office Depot, OfficeMax and Staples. He alleges the companies violated patents owned by his now-defunct idea lab Interval Research.

As Wired reports:

The four patents at issue allegedly cover basics of online commerce, including recommending products to a user based on what they are currently looking at, and allowing readers of a news story to see other stories based on the current one. Two other patents relate to showing other information on a web page, such as news updates or stock quotes.

Obviously, the less-than-clarifying Bilski decision from the Supreme Court isn't deterring him.

Read more details (and see a copy of the lawsuit itself) at Wired.com here:

http://www.wired.com/epicenter/2010/08/paul-allen-patent-lawsuit/

The NY Times has a review of the latest book arguing for less restrictive copyright regimes.

Read it (the review) here:

http://www.nytimes.com/2010/08/22/books/review/Darnton-t.html?pagewanted=1&_r=2&ref=science

For those who think that the "parody" defense has always provided a clear and fair outlet of escape from copyright's harsh restrictions, you might want to read up on the time in the 1950's when Jack Benny was banned from airing a parody of the 1942 film (and 1939 play) "Gaslight" for a television show he was doing.

Original news coverage after the 1958 Supreme Court decision can be found here:

http://news.google.com/newspapers?id=tX8PAAAAIBAJ&sjid=-YcDAAAAIBAJ&dq=jack%20benny%20supreme%20court&pg=5150%2C2765550 [The Victoria Advocate]

and here:

http://www.time.com/time/magazine/article/0,9171,937550,00.html [Time Magazine]

Classic lines from Time's coverage:

From now on, Benny intends to get permission of anybody he parodies. Gloomed he: "I suppose now they won't even let me do Birth of a Nation. They're afraid we'd hurt the picture."

While I regretfully cannot find an on-line link to a copy of the article, AP television writer Charles Mercer wrote in his syndicated column that week (March 22, 1958):

"Actually, television felt the effects of the suit long before the Supreme Court ruling. If memory serves, we have not seen an all-out parody of any copyrighted work on television since the suit was filed. Television, as everyone knows, is a mighty cautious industry.

Issuing a personal opinion on the ruling, I'm sorry as a television viewer that Benny has lost the case. It's one more nail in the coffin that fate prepares for TV comedians. It further limits the area in which they are permitted to try to make us laugh.

Parody is one of the most ancient and honorable forms of public entertainment. Suddenly to find it illegal is astonishing - and a little frightening in the area of freedom of expression."

Well said. Here is one of the nation's most prominent television critics at the time effectively admitting that a single copyright suit prevented countless of creative comedic works from being produced at the time - a shameful fact that is surely ignored in most law school and history classes today.

The 9th Circuit decision dealing with the jack Benny case can be read here:

http://openjurist.org/239/f2d/532/benny-v-loews-incorporated-columbia-broadcasting-system

The subsequent and brief (4-4) Supreme Court decision simply read without explanation:

PER CURIAM.

The judgment is affirmed by an equally divided Court.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

You can find a copy of it here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=356&invol=43

A subsequent parody case which cast criticism on the decision makes for interesting reading here: http://cip.law.ucla.edu/cases/case_berlin_ec.html

The bottom line is that the so-called "parody" protection from copyright has always been an opaque crock. It is no clearer now than it has been in the past, but creative works are still being stifled from fear of treading on copyright's parameters:

http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vis=1&oi=scholarr

http://blogs.law.harvard.edu/yuminemma/files/2009/12/cat-not-in-hat1.jpg

http://grove.ufl.edu/~techlaw/vol9/issue1/collado.html

ADDENDUM: I recently came across yet another Jack Benny-related copyright outrage here:

http://boingboing.net/2010/01/18/cbs-uncovers-rare-ja.html

Oh, the irony. Even in death, the copyright regime still torments him.

David Post over at the Volokh Conspiracy has thoughts on the matter worth reading here:

http://volokh.com/2010/08/18/the-high-cost-of-copyright/

Interesting discussion on the struggle to maintain monopolies over classified information in the digital age here:

http://www.newyorker.com/online/blogs/newsdesk/2010/08/chasing-wikileaks.html

Mike Masnick over at Techdirt highlights some interesting musings from the Copyright Office which suggests a slowly shifting emphasis on how to determine Fair Use (a legal test which is notoriously slippery and can be bent in many cases to suit any preconceived result a judge wants to reach ahead of time):

http://techdirt.com/articles/20100804/04102010491.shtml

Hopefully, this will signal a (too slow and small, but still valuable) move away from the very disingenuous "market" test, or the effect of copying on the work's "value". This factor is almost always applied in a fraudulent manner since many courts don't only consider the markets which currently exist, but also potential future markets that the original author could potentially exploit. This becomes a tautological argument since the author can ALWAYS say that he/she intended to exploit a new product market in the future, even though they made no steps to do so in the past. Under this scenario, any copying of a work in any context becomes a per se harm to some hypothetical market which might exist in the future.

Proof here:

http://www.nytimes.com/2010/08/03/us/03fbi.html

http://graphics8.nytimes.com/packages/pdf/us/20100803-wiki-LetterFromLarson.pdf [PDF]

http://www.scpr.org/blogs/johnrabe/2010/08/03/jrblog-fbi/

Indeed. Hopefully, this will get even more people to start to contemplate the bigger picture here:

http://claytonecramer.blogspot.com/2010/07/outrageous-lawsuit.html

[H/T: Instapundit]

Details here:

http://www.wired.com/threatlevel/2010/07/copyrightfiltering-scribd/

The fact that the lawsuit was dropped does not diminish the illustration of how insane the copyright lawsuit industry has become. Its own logic begins to fold in on itself.

The (pro-patent) Patently-O blog does a good job in an objective analysis of what the Bilski decisions means in its practical application.

Two important posts to read from there:

http://www.patentlyo.com/patent/2010/06/bilski-v-kappos-business-methods-out-software-still-patentable.html

http://www.patentlyo.com/patent/2010/06/bilski-v-kappos-and-the-anti-state-street-majority.html

Naturally, I'm disappointed. Although Bilski got his specific patent application rejected, and there is some hopeful wording in the opinion on the narrowing of patent eligibility, the decision for how it will practically shape future patent applications is far narrower than I had hoped for.

Like many others, I was wrong in my prediction that Justice Stevens would be writing the majority decision. He writes a lengthy and noteworthy concurring opinion, but the main decision went to Justice Kennedy, the one Justice who consistently muddies the law, rather than clarifies it with his opaque and hair-splitting opinions.

The Court punted on a once-in-a-generation opportunity. The Patent Bar must be breathing a sigh of relief.

Time for me to eat crow regarding my specific predictions on this case and think about the best way to carry the fight for meaningful reform forward.

ADDENDUM: The Christian Science Monitor provides one of the best easy-to-read quick summaries of what went down with the Bilski decision here:

http://www.csmonitor.com/USA/Justice/2010/0628/Which-innovations-deserve-patents-Supreme-Court-gives-scant-direction