Over the summer, we wrote about the bizarre and protracted legal dispute concerning whether or not eBay actually had the rights to the core technology in Skype. Skype's founders, Janus Friis and Niklas Zennstrom, claim that they retained the right to the core technology in a separate company called Joltid, and that they terminated eBay's license to that technology. There's a legal battle already underway about that, but apparently that's not enough, as Joltid has now filed a separate copyright infringement lawsuit against eBay and the list of investors who recently bought out a big chunk of Skype from eBay. The thing that still amazes me is that pretty much everyone realized right away that it made no sense for eBay to buy Skype. That was a bad idea from the very beginning. But finding out that the purchase price didn't even include the core technology, and that Joltid had the ability to revoke the license, makes the purchase almost monumentally bad.

Plenty of studies have shown, over and over again, that in an emerging market, the last thing you want is patent protection. It slows down innovation and adoption drastically. That's because in a brand new emerging market, the bigger issue is actually figuring out how to get the market established -- and that means a lot of different efforts getting thrown at the wall, and the ability for multiple parties to try different approaches to getting things to work in a way that the market wants. Often this means a lot more sharing of ideas (even among competitors), as everyone begins to recognize that getting over that adoption hurdle is a much bigger deal than hoarding IP. And that's a key point. With these emerging markets, the incentive is often the realization that when the market need is actually met, it will make a lot of people very wealthy, not by hoarding IP, but by selling product. This is a perfect example of a market where patents make no sense at all. There's no need for monopoly protections where the market can accurately reward the innovators.

The clean tech market has been an interesting one to watch, because it certainly has not needed patents to keep people interested. Lots of companies have been jumping into the market, realizing that the world needs better energy solutions, and recognizing that those who successfully crack that nut won't have to worry about patents, but about being able to actually serve the demand. But, those who look at innovation entirely through the spectrum of patents would like to paint a different picture. Reader bretton points out that a recent document sent around by a big law firm is pushing the idea that patents will be essential for "fostering innovation" in clean tech (pdf). Of course, studies (and history) have shown exactly the opposite... but, of course, more patents would be good for the law firm and its business.

At almost the same time as that link was sent over, Michael Koch alerted us to a discussion of how some big companies are suddenly very interested in patents on clean tech. It notes that, prior to this year, there was very little interest in the clean tech community for patents or patent issues, but as the new administration talked up the importance of working together and sharing information (even across borders) to further the goal of actual innovation (rather than the hoarding of ideas), suddenly the US Chamber of Commerce unleashed its lobbying muscle to demand that patents be a big part of this:

However, this situation changed dramatically in the spring and summer of 2009 with the advent of the Obama administration making public statements about sharing technology related to energy. In reaction, the United States Chamber of Commerce, a leading lobby representing businesses, is expressing growing concern that moves to spread new energy technologies to developing countries could erode the IP rights that have driven commercial efforts to innovate for generations.

Late in May 2009, the group and representatives of General Electric, Microsoft and Sunrise Solar gathered in Washington to launch the Innovation, Development & Employment Alliance, or I.D.E.A. The initiative is aimed at pressing Congress and the Obama administration to ensure that global climate-treaty talks do not weaken protections on who can profit from new technologies that provide abundant energy without abundant pollution. The creation of I.D.E.A. has been widely noted, with some alarm, in the IP "watchers" community, and likely means the status of alternative energy as a less-observed IP sector is finished for good....

The new Secretary of Energy, Steven Chu, a Nobel Prize winner, has publicly supported collaborating with developing countries - in particular China - and sharing all IP rights of the resulting technologies. He has already pushed forward with a new U.S.-China Clean Energy Research Center, developed with $15 million dollars each from the U.S. and Chinese governments, and designed to create innovative technologies for building energy efficiency, clean coal (including carbon capture and storage) and clean vehicles. In addition, Secretary Chu is advocating for the development of open-source building energy-efficiency software that will make it cheaper and easier for developers to implement energy saving measures in new buildings, both in the U.S. and in emerging economies like China and India.

Such an effort could certainly help advance some of the important scientific research and innovation in clean tech issues... but of course, this new lobby is having none of it:

In reaction, I.D.E.A.'s first act was to back the Larsen-Kirk Amendment to the Foreign Relations Authorization Act (H.R. 2410). The amendment calls on the President, the Secretary of State and the Permanent Representative of the United States to the United Nations to uphold the existing international legal requirements for IP rights and avoid any weakening of them for the UNFCCC in the context of energy and environmental technology. The Amendment passed the House with a 432-0 vote. It was described as an amendment to protect U.S. green jobs and U.S. technology innovation.

Of course, the reality is exactly the opposite. If we don't make the necessary innovation breakthroughs then there won't be that many US green jobs at all. It's stunning in this day and age that politicians can still be convinced that such protectionist policies protect jobs rather than limit them. Getting serious innovation in the clean tech market will create tremendous job opportunities. Focusing on who gets to own the patents (and blocking foreign collaboration) at this stage only delays the ability for the US to create those jobs and to move to better energy options.

What a shame.

As you know, eBay bought Skype for a ton of money a few years back, without having any real plan for what to do with it. There were no synergies between the two, and about the best that can be said for eBay's ownership of Skype is that they didn't kill it (though, frankly, the new UI is so bad, it makes me wonder what they were thinking) and let it continue to grow organically. Earlier this year, eBay finally announced plans to spin off Skype. Fair enough. It can probably do a lot more outside of eBay than from within. However, it turns out that there may be a bit of a legal hitch, as Skype's founders claim that eBay/Skype no longer have the legal rights to Skype's underlying technology. Apparently, the claim is that Niklas Zennstrom and Janus Friis and a separate company they ran, Joltid, only licensed the underlying technology to eBay/Skype for a limited time -- and that deal has now concluded. The two companies are scheduled to fight this out in court.

There are a few interesting asides to all of this. First, it reminds me of how Zennstrom and Friis ended up in another lawsuit a few years back, also involving questions about licensing the core underlying technology of Skype. There's a lot of background here, and not all the details are clear (at all), but that original case involved the claim that Zennstrom and Friis used the same core underlying technology that they used to build Kazaa to build Skype. Way back, Zennstrom and Friis had created two operations: Kazaa and FastTrack, which created the underlying tech used in Kazaa. However, they also licensed FastTrack to a company called Streamcast, that made a product called Morpheus that competed with Kazaa in the file sharing space. Got that?

The folks at Streamcast insist that part of their contract with FastTrack was that they had a right of first refusal on buying the underlying technology. But then, all sorts of stuff happened, with Kazaa being sold off to a group in the South Pacific, but Zennstrom and Friis supposedly retaining some core technology which (Streamcast claims) they used to build Skype. Then, once Skype sold, Streamcast claimed that the whole thing was an elaborate shell game, but in selling the Skype underlying technology, Streamcast claimed that Zennstrom and Friis violated their agreement on having a right of first refusal on purchasing the technology.

Yet, now I'm left wondering if that original claim was true. If the current claim is that Joltid still "owns" the original technology and Skype/eBay only licensed it, then the technology itself might never have actually been sold (unless, we're talking about two separate core underlying technologies... which is possible).

Still... the bigger question? How the hell did eBay make a deal and not make sure it had either purchased (entirely) the core underlying technology or had a guaranteed perpetual license that couldn't be revoked? The eBay Skype purchase was bad enough already. Could it be even more ridiculous in that eBay didn't even properly purchase the technology in question? It seems preposterous to believe that a company could screw up an acquisition that monumentally, so you have to wonder if it's actually true.

In the meantime, since there are questions about how eBay can rebuild Skype's underlying core technology without violating the many patents in the space, it makes you wonder if eBay may be forced to simply buy someone else's technology. Maybe it's time to call up the Gizmo Project (which has built a very Skype-like product) to see what they're up to these days. Though, can you imagine eBay needing to buy another company just to power Skype so it can be spun off again? Yikes!

Earlier this year, you may recall that strict new "anti-piracy" legislation went into effect in Sweden, which required ISPs to hand over IP addresses and other info they had on people. Because of this, some ISPs have been proactive in deleting log files. But, a bigger question may be whether or not such rules violate user privacy. It appears that the Swedish courts are going to need to sort this out. The first ISP who was asked for IP address info in Sweden under this new IPRED law, Ephone, is appealing the court order to hand over the data, even though it faces huge fines for not complying. The case is a little different than a typical file sharing case in that it involves an attempt to find out who's running a particular server on which certain content was stored. However, Ephone points out that the server itself required a password to access, and thus the content was not made publicly available -- and thus, was not copyright infringement. Not surprisingly, Ephone's customers have made it clear to the company that they support it in protecting their privacy.

As you probably recall, the Obama Department of Justice includes many of the content industry's favorite lawyers. Now, thanks to the $410 billion omnibus spending bill approved by Congress and Obama, the FBI has nearly $10 million more dollars to spend on intellectual property enforcement. The money will fund 2 field officers at each existing Computer Hacking and Intellectual Property unit as well as the creation of a new unit at FBI headquarters to work specifically on multi-district IP cases. This news comes soon after Obama spoke warmly about innovation and start-ups -- two things which hardly need more IP headaches -- so it will be important to watch carefully who he appoints as the newly created IP Czar (though things hardly look good thus far).

In the WTO fight between the US and China -- in which the US declared victory recently, despite losing most of its arguments -- Canada had joined the fight on the US's side. However, as Michael Geist has discovered, by accessing government documents using the Access to Information Act in Canada, Canadian officials didn't see any reason to get involved at all, not believing the dispute impacted Canadians in any manner. However, it appears US officials didn't like that very much, and a rather heavy attempt to pressure Canadian officials into signing up ensued, with both US officials and the Canadian Recording Industry Association (often seen as basically a puppet of the RIAA) applying the pressure. While Canadian officials continually expressed doubt about participating, noting little evidence that China's practices had any impact on Canadians, eventually they signed on in support. As Geist notes, the end result has been quite damaging to Canada. Since the main points of the case were won by China, Canada signed up with the wrong side of the arguments and the effort has damaged Canadian relations with China. That's what you get for getting pushed around by the IP bullies...

One of our readers, Virginia, alerted us to a report concerning a gathering of US IP Attaches (basically, the US gov't's international copyright cops that we send around the world to try to enforce draconian IP policy), in which they spend most of the time complaining about how countries around the world don't agree with the US's view on intellectual property and are quick to ignore it when possible. In fact, those countries often don't even want to invite their US counterparts to meetings because they're "too aggressively pro-IP."

Of course, rather than take this as a sign that maybe their views are too aggressively pro-IP, they instead want to blame anyone who is pointing out the dangers of being so aggressively pro-IP. The article quotes US Chamber of Commerce President Tom Donohue, saying that US IP cops can't just focus on pirates and counterfeiters, but need to start worrying about those of us crazy enough to point out the dangers and downsides of aggressively pro-IP policies:

"[There is a] second threat [from] a growing movement of anti-IP activists drawn from universities, foundations, non-governmental organisations (NGOs), ideologically driven interest groups, and even governments."

You see, we're not a part of the debate and the conversation -- perhaps showing how their strong belief in stronger IP is dangerous -- but we're a "threat" that needs to be dealt with. Nice to know that the US's worldwide IP enforcers have such open minds.