Next month, I have a law review article coming out, specifically focused on how much innovation is held back and hindered when courts rule against new and innovative technologies based on the claim that they are infringing copyrights. This goes well beyond just the technology on trial itself, but many follow-on innovators who are held back or hindered in either designing their innovations or receiving investments for those same innovations. Markham Erickson, a telecom and internet lawyer, has written up a blog post that highlights this same point in looking at the recent ruling in the Aereo caes and how important the Cablevision case was in driving the innovation that led to Aereo, and to a variety of other investments in online services, and cloud computing in particular. First, Erickson notes that both the Cablevision and Aereo rulings helped create legal symmetry such that the length of a cable should not impact whether a technology is legal or not (i.e., a remote device is treated the same as a device in or on your home), and then he talks about the wider impact of that clarity:

In reaching this conclusion, the court placed utmost importance on certain technological designs such as the use of an individual antennae and copies unique to the individual. The court also made clear that Cablevision’s holding was not confined to particular, pre-approved technologies: “[W]e see no support in Cablevision or in this court’s subsequent decisions for the Plaintiff’s argument that Cablevision’s interpretation of the Transmit clause is confined to technologies similar to the VCR.” Aereo, 2013 WL at *11.

This rejection of a technology-specific reading of Cablevision should be heartening to cloud service providers. The reliance of cloud service providers on Cablevision is hard to overstate. After the Cablevision decision, the average quarterly investment in cloud computing in the United States increased by 41 percent. By one estimate, the certainty provided by Cablevision led to an additional incremental investment in US cloud computing firms of anywhere between $728 million and $1.3 billion in the 2 and 1/2 years following the decision. As the Second Circuit observed in Aereo, “many media and technology companies have relied onCablevision as an authoritative interpretation of the Transmit Clause. One example is cloud media services, which have proliferated in recent years.”

And yet, he notes, this clarity and ability to invest and to innovate may be at risk. As we noted at the time, the stunning dissent in the Aereo case actually indicated that designing a system to be within the clear boundaries of the law as explained in the earlier case should be seen as intent to infringe. That's a rather incredible interpretation when you think about it. Following the explicit nature of the law should be seen as trying to subvert it? Talk about a way to chill innovation. If that became the law, the chilling effects on innovation would be tremendous. Not only would innovators be fearful of creating new services that might be sued for infringement, they wouldn't even know how to make sure their technologies were considered legal, due to a court system that explicitly argued that any attempt to obey the law may be seen as an attempt to subvert it!

Meanwhile, other courts seem to be attacking these basic principles, which may result in more stifling of significant innovation and investment. We've avoided covering what's now called either the "AereoKiller" or "BarryDriller" cases, because the service, which used to be known as FilmOn, seems much more focused on doing stupid promotional stunts, rather than something serious. His lawsuit against CBS, as well as changing the name of FilmOn to AereoKiller/BarryDriller, highlights the sort of focus that David seems to have. And, unfortunately, when you have someone more focused on publicity stunts and acting like a clown, rather than mounting a serious legal defense, you get bad rulings. AereoKiller is a somewhat similar service to Aereo, but may actually end up killing Aereo and a ton of other important innovations, not because it's better/more innovative, but because it's mounting a horrible defense on a similar issue, and has already lost at the district court. The impact on innovation could be huge. With a split decision and concerns about Aereo's future success, investment in key innovations, including various cloud services, may be held back, while other countries continue to invest in such companies.

It's incredible that we have a legal process, and a tool in today's copyright law, that is being actively used to scare off key investment in new innovations at a time that we should be much more focused on innovation.

Back during the fight for the America Invents Act -- the big patent reform effort from a couple years ago -- Senator Chuck Schumer was able to add in an amendment that made it easier to get the USPTO to review business method patents. As we noted at the time, this amendment also effectively killed off some specific financial patents. This was a good step, though we wondered why it was limited just to business method patents. The general answer that we got back from those involved in the process was that this would be a "test bed." That test bed is now known as Section 18 of the America Invents Act, which makes it easier for those sued to get the patent reviewed by the USPTO, and also makes it more likely that a court will put a lawsuit on hold while the USPTO reviews the patent. Given how often re-exams by the USPTO lead to claims being rejected, this process can certainly help dump some really bad patents before a defendant has to go through an incredibly pricey court case (and appeals and such).

It's now being reported that Schumer is set to introduce a new bill that will expand Section 18 to cover technology patents, rather than just limiting it to business method patents (the more cynical among you will note the rapid growth of New York's tech sector as a reason for this expansion). This is definitely a big step in the right direction. If something like this was also combined with the SHIELD Act, which shifts fees to the trolls for bogus patent lawsuits, it would really help limit some of the most egregious activities of trolls.

That said, this is only one step. There are some limitations and oddities within Section 18 which may have been necessary to get it into law, but which also limit the overall effectiveness of the bill against trolls. While we're extremely encouraged that Congress and other parts of the federal government appear to finally be taking the issue of patent trolling seriously, there is still much more to be done. Thankfully, there are indications from a bunch of Senators and Representatives that they know this is a problem and they intend to do something to fix it. Kudos to Senator Schumer for jumping in with this fix, and we look forward to more efforts to fix our broken patent system and to limit innovation-hindering patent trolling.

A few weeks back, we wrote about the Indian Supreme Court's rejection of Novartis's attempt to use "evergreening" to prolong its patent on Gleevec, sold as Glivec in India. That term refers to the trick of making small changes to a drug, usually one about to come off patent, in order to gain a new monopoly that extends its manufacturer's control over a medicine. But how does that work in practice?

A recent story in The New York Times answers that question for us. It concerns the painkiller OxyContin, produced by Purdue Pharma. The main ingredient was supposed to be released gradually, for extended pain relief, but some inventive types started crushing the pills in order to get a big, single hit -- often with fatal results. So in 2010, Purdue Pharma came up with a new physical formulation that was designed to make it harder to mis-use in that way, and obtained a patent on it. Fair enough, you might think: surely it's just trying to stop the abuse of its products and save lives? Well, maybe, but as The New York Times story now tell us:

In a major policy move, the Food and Drug Administration [FDA] said Tuesday that it would not approve generic versions of the powerful narcotic OxyContin, the painkiller that symbolized a decade-long epidemic of prescription drug abuse.

That's because there was apparently a fear that the generic versions would be abused in the same way as the older formulation from Purdue. What's interesting here is the FDA's timing:

The decision by the F.D.A. came on the day when the patent for the original version of OxyContin was set to expire. That would have allowed generic producers to introduce their own version of the formulation. F.D.A. officials said that several producers had applications to sell a generic form of OxyContin pending before the agency.

Of course, now there won't be any generic versions -- at least, not immediately -- and so the price of OxyContin probably won't drop precipitously, and Purdue will keep making a nice profit from it.

That is a perfect demonstration of how evergreening works. Getting a new patent on a tweaked version of a drug that effectively extends a company's monopoly control beyond the original patent term is not enough on its own; what's then needed is some reason why the much cheaper generic versions of the original drug without the tweak are kept from the market. In this case, it's because they don't offer a formulation that combats mis-use.

Of course, it's good news that tamper-resistant versions will now be the norm, since that is likely to save lives. But as the New York Times article writes:

While companies like Purdue Pharma insist the public's health is their main concern, others note that producers introduced tamper-resistant versions of their products just as the drugs were about to lose patent protection.

I suspect we may see more of these interesting coincidences as other profitable drug patents are about to expire, and their manufacturers start to come up with yet more ways to "evergreen" them.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Via Groklaw, we learn of Barnes & Noble's excellent filing with the FTC and DOJ concerning the problems of today's patent system, and some suggestions on how to fix it. You can read the full filing on the FTC's site. In recent years, the FTC has grown increasingly concerned about our broken patent system, in particular about patent trolls -- which they prefer to call "patent assertion entities" (i.e., businesses who exist solely to use patents in to seek money from others). And, more recently, the FTC has teamed up with the DOJ to see if there's anything that can be done to help fix the situation.

As Groklaw notes, the B&N filing is clear, concise and highly readable. It outlines the problem directly:

The patent system is broken. Barnes & Noble alone has been sued by "non practicing entities"—a/k/a patent trolls—well over twenty-five times and received an additional twenty-plus patent claims in the last five years. The claimants do not have products and are not competitors. They assert claims for the sole purpose of extorting money. Companies like Barnes & Noble have to choose between paying extortionate ransoms and settling the claim, or fighting in a judicial system ill equipped to handle baseless patent claims at costs that frequently reach millions of dollars.

As they point out clearly, even when they have a very strong case -- either when they don't infringe and/or when the patent is bogus, a lawsuit is incredibly costly in terms of time, money and effort.

In the current system, patent trolls overwhelm operating companies with baseless litigation that is extremely costly to defend. Patent cases generally cost at least $2M to take through trial, and frequently much more. Litigating, even to victory, also entails massive business disruption. Companies are forced to disclose their most sensitive and top-secret technical and financial information and must divert key personnel from critical business tasks to provide information and testimony. The process is exceptionally burdensome, especially on technical staff. Document discovery and depositions seem endless.

Patent trolls know this and as a result, they sue companies in droves and make settlement demands designed to maximize their financial take while making it cheaper and less painful to settle than to devote the resources necessary to defeat their claims. The current system lets them do so even with claims that are unlikely to prevail on the merits. That is because, whether win lose or draw, the rules effectively insulate trolls from negative consequences except perhaps a lower return than expected from any given company in any given case. They can sue on tenuous claims and still come out ahead. And so the broken system with its attendant leverage allows trolls to extract billions in blackmail from U.S. companies and, in the final analysis, consumers.

One of the great things about the filing is that it reminds the FTC and the DOJ of the constitutional underpinnings of patent law -- not that patents are required or guaranteed, but that their purpose is to promote the progress of the useful arts. If that is not happening, then the use of patents in such a manner should be seen as unconstitutional.

The Patent and Copyright Clause grants Congress the power "[t]o...promote the Progress of Science and useful Arts," not science fiction and litigious arts. (Article 1, Section 8, Clause 8 (emphasis added)). But the current system allows trolls to pursue fantastic allegations—claims that would be laughed out of the room in actual scientific or technical circles—in endless litigation that taxes and taxes true innovators while making no meaningful contribution to society. Barnes & Noble's experience exemplifies this and industry data confirms it. See, e.g., James Bessen & Michael J. Meurer, "The Direct Costs from NPE Disputes" at 2, Boston Univ. School of Law Working Paper No. 12–34 (June 28, 2012) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2091210) (estimating direct costs of troll litigation on economy at $29 billion for 2011 based upon study that included data from 82 companies and finding additional empirical support for earlier conclusion that "much of the cost borne by technology companies as they defend against NPE lawsuits is a social loss and not a mere transfer"). The system has lost its true north.

As the company notes, while it's been sued by more than two dozen trolls, and has spent tens of millions of dollars defending itself against them in court, not a single court ruling has come out against Barnes & Noble and in favor of the trolls. Whenever we talk about patent trolls, some troll supporters show up in the comments to insist that the companies complaining have clearly infringed and should just pay up. And yet, once again, we see that's clearly not true. But Barnes & Noble still has to spend all that money defending itself, and not innovating and providing more value to the public.

Barnes & Noble goes on to point out not just how ridiculous some of the patents are, but also how the trolls keep on fighting and demanding money, even after they have lost the case:

Even the most plainly baseless lawsuits are expensive and can take years to defeat. In at least four cases, Barnes & Noble has faced litigation by patentees asserting the same theories on which they previously lost. In one case, for example, Barnes & Noble is alleged to infringe patents because BN.com uses the HTML language and returns search results other than exact matches. The patentee asserted these allegations against Barnes & Noble despite having tried and lost a case against other ecommerce retailers based on the same functional allegations levied against their websites. In two of these four cases, the patentees ceased pursuing claims against Barnes & Noble once the United States Court of Appeals for the Federal Circuit affirmed their earlier losses. But in two others, the appeals are not yet final and although Barnes & Noble has filed dispositive motions, the litigations have carried on actively for years.

In two other recent cases, Barnes & Noble achieved victory at the district court level on summary judgment. In one such case, the Court awarded Barnes & Noble its costs—but the total awarded was less than $50K. The company expended millions to achieve that victory, but attorneys’ and expert fees are not recoverable as a matter of course.

Appeals routinely follow summary judgment victories, and Barnes & Noble's experience has been no exception. The Federal Circuit now has a mandatory mediation program. In that program, Barnes & Noble has received demands for substantial settlement payments—even in cases that it won below. One such demand, for example, exceeded $3M. The settlement demands that patent trolls make on appeal, particularly in the wake of complete defeat, have nothing to do with the merits. They underscore the uncertainty and expense that accompany appeals and potential retrials in patent cases.

In a growing number of cases, patentees sue Barnes & Noble on multiple patents only to drop one or more of them before trial. This practice underscores that many patent claims are not made in good faith. Rather, plaintiffs frequently assert patents for additional leverage to force companies to expend significant resources mounting a defense on multiple fronts even when they know they will not ultimately prevail.

Barnes & Noble and other technology companies see countless lawsuits in which the asserted patents purport to cover products and technologies common to the entire industry. We face repeated allegations that anyone using Wi-Fi, anyone using 3G, anyone using MP3, anyone with an e-commerce website, anyone using Ethernet, and, recently, anyone using InfiniBand technology, to name a few, is infringing and must pay a hefty price to license purportedly essential patents. The allegations sweep far beyond specific innovations to which a patent might legitimately lay claim.

I recognize I'm quoting extensively from the filing, but it really is that good and deserves to have so much of it highlighted.

At the end, Barnes & Noble suggests five specific fixes that it believes would help minimize the problems of the patent system. I agree with many of the suggestions, though still think they could go somewhat further. Let's look at the five suggestions.

Require Losing Patentees to Pay Costs and Expenses, Including Attorneys' Fees

This is basically B&N coming out in support of the SHIELD Act, the law currently proposed in Congress that would do exactly what's described above. Obviously, this would help in the situations where trolls are asserting clearly bogus patents hoping that companies will settle to avoid the cost of the litigation. It is not a perfect solution, but one that would likely hold back some of the worst trolling activities. It's interesting to note that the filing also suggests allowing such fee shifting for situations in which a troll files a lawsuit over a particular patent, but later drops that patent from the lawsuit. Often, we've seen that such bogus claims are made merely to drive up the cost of defending the lawsuit, even though even the trolls know the patent in question has nothing to do with the actions of whoever is being sued.

Require Actual Reduction to Practice and Commercialization

I know this one is popular among many patent system critics, and I can understand the argument for it. It would, certainly limit significant amounts of patent trolling. My main concern with this one, however, is that if you can envision a good patent (and I know some argue there's no such thing, but let's assume it's possible), perhaps the patent holder isn't in a position to commercialize the invention. Where I would support this is with a small tweak: that the either the patent holder has commercialized it or they've partnered with someone else who has done so. That one tweak would make this quite useful in stamping out patent trolling.

Also, as B&N points out, this requirement serves another important purpose: limiting outrageous attempts to stretch what a patent really covers, including taking a very minor thing and pretending that it's of central importance to a completely different invention. When a defendant can point to how the patent holder actually commercialized the offering, it's much easier to highlight how the patent holder clearly wasn't trying to cover what the defendant eventually did.

Cap Damages at the Amount Paid to Acquire a Patent

This is another interesting suggestion -- and one that I haven't seen much discussion about. Barnes & Noble's argument appears to be that a troll, who has purchased the patent and has no interest in bringing a product to market, doesn't have any real "damages" other than the cost it took to acquire the patent. Furthermore, since the nature of patent trolling usually involves paying a rather small amount for the patent itself, before spinning around and claiming hundreds of millions in "damages," this would certainly help take away a big incentive to patent trolling.

That said, frankly, this one is a bit less compelling. Patent system supporters will argue, perhaps reasonably, that the "damages" are the loss of relevant licensing revenue. And that could possibly make sense, though in most trolling cases, it's unlikely that there's any real likelihood of licensing fees making sense.

Require Clear and Convincing Proof that an Invention is New and Non-obvious for a Patent to Issue

I've been a big supporter of this argument for years. The Patent Office is just really bad on this front, issuing all sorts of bad patents on a regular basis. In part, this is because there is no such thing as an adversarial hearing in determining if a patent should be issued. There's just one side. On top of that, the incentives for the patent examiner is to approve patents, not to reject them. So we get a ton of bad patents. If we raised the bar for what's patentable while also putting the burden on the patent applicant to provide a high level of proof, that would help to reject many bad patents.

And this wouldn't be a real "change," rather it would be bringing the patent system in line with where it's supposed to be. Already, patent law requires that an invention be both new and non-obvious. Yet, patent examiners don't really do a good job making sure it is both of those things. They may look at some prior art, but often miss tremendous amounts of compelling prior art showing that the invention has already been done before.

My bigger complaint has been the lack of real "obviousness" testing by the Patent Office. Right now, they mostly just look at prior art to see if they can show if the new invention was anticipated by previous inventions. But patent art is really what applies to whether or not something is new, not whether or not it's "obvious." While the two may seem related, they may not be. As an example to help illustrate the differences: imagine a world in which lots of people are thinking about how to stream video online, but they're held back by a lack of bandwidth. As bandwidth naturally increases over time, the video streaming becomes technologically feasible. In that case, the technology to create the stream is not complicated -- the factor that was holding it back wasn't the lack of a compelling invention or breakthrough, but rather waiting for an ancillary technology -- broadband -- to catch up.

In that case, you could argue that the "invention" is new, but that it's also obvious. That's harder to show via prior art, but should be clearly understandable to those with actual knowledge or experience in the field.

On this point of obviousness, I'd also go one step further, as I've advocated in the past: introducing both an independent inventor's defense and the ability to use evidence of independent invention as evidence of obviousness, since multiple players all reached the same place separately. This makes sense in that it also stops the patent system from destroying the value of the work that every other innovator, who was not the patent holder, did to get to that point.

Keep Trolls Out of the ITC

This is another good one. As we've talked about for years, patent holders get a ridiculous two cracks at making life difficult for those they claim are infringing. First in the courts, and a second time at the ITC, where the rules are different. The ITC can't order monetary fines, but it can issue injunctions that will block products from being imported into the US, which can be a very big deal for many companies. Not too long ago, trolls rarely went to the ITC, as it was believed that you had to be actually selling the invention in question to make use of that path -- but after trolls convinced the ITC that patent licensing itself could be counted as having a "domestic industry" that needs protecting, patent trolls have been flooding the ITC.

Barnes & Noble reasonably suggests a return to the previous way things were where the ITC can only take part when there's an actual product being produced.

All in all a really great filing and some fantastic suggestions, though personally I'd push for that independent inventor defense, combined with independent invention being evidence of obviousness. Hopefully, the FTC, DOJ and others pay attention.

One of the reasons why 3D printing is suddenly on the cusp of going mainstream is the expiration of some key patents that have held the technology back for decades. And yet, of course, with any area of the market that is getting hot, there is suddenly a rush to get more patents. In fact, we've already seen a few patent fights begin concerning the new generation of 3D printing companies. Recently, the EFF has decided to try to try to put a stop to a series of patent applications that, if granted, would have the potential to again hold back the 3D printing market even further.

As of today, we've now challenged six pending patent applications that you helped us identify as applications that, if granted, would particularly threaten the growing field of 3D printing technology. Harvard's Cyberlaw Clinic hand delivered the first two submissions to the Patent Office earlier this year, and we've since sent in four more.

The prior art we’ve submitted so far thanks to your submissions ranges from patents and blog posts to research papers and symposium proceedings. Each prior art document gives the Patent Office tools to reject patent claims for obviousness. That in turn helps protect the diverse, exciting uses of 3D printing that are gaining in popularity each day, from small hobbyist printers to large-scale, high-quality commercial fabrication using materials ranging from titanium to chocolate.

Hopefully, they'll be able to hold off the worst, and we can see a new industry develop cleanly, without too many patent fights, or too many such issues holding back further development in the space.

It really is quite incredible to see such a clear case of patents hindering key innovations. The market is developing today not because of patents, but because people see the demand in the market and the opportunities to provide something. We have a competitive market, where different providers seek to out-innovate each other, not because of the ability to get patents, but because of the nature of competition and the desire to provide for an emerging and compelling market. Hopefully that spirit of innovation won't get stamped out due to bad patents.

Ever since Google decided to stick with Motorola Mobility's existing patent fights with various companies, I've been wondering why they did so. Here was a chance for Google to take the high road and actually live up to what it had been claiming concerning the problems of patents. But, instead, it's basically continued to try to use patents as a weapon. The fight against Microsoft has been particularly silly. While Microsoft did initiate things, Motorola's decision to fight back had seemed dubious from the start. Being a patent bully is no way to run a long-term business, and that's doubly true when you're a company telling people how broken the patent system really is.

And yet, Motorola Mobility pushed on against Microsoft... and it's not going well. On Friday, a judge knocked the damages down to next to nothing, basically siding with Microsoft. Microsoft had argued that if there were any infringement, the amount owed should be about $1.2 million. Motorola Mobility had argued for... $4 billion. The judge came down at just $1.8 million.

I recognize, of course, that the whole reason that Google bought Motorola Mobility was to get access to these patents. And, on top of that, Microsoft did strike first here. However, Motorola Mobility had hit back quite strongly, and even once Google was in control, it seemed to have little interest in pulling back. The whole thing makes Google look a bit hypocritical, and it certainly hasn't helped the company win any of these legal battles.

Even up here in Toronto, winter is starting to give way to spring. Among other things, that means getting around is becoming a lot easier — and a lot more fun. It's the time of year that cities start to fill up with people on bikes, boards and blades, all of which are things that people keep on tinkering with, coming up with new improvements and twists on old ideas. Whatever your manual wheels of choice, here are three innovative new ideas that could change the way you roll:

Wheels In Your Pocket: The ABGO
Sometimes, circumstances preclude you from bringing your chosen ride along somewhere. It can be downright infuriating, as you realize how woefully slow your legs are without some mechanical assistance. Enter the ABGO, a short-distance quick-fix that fits in your pocket.

I'm sure some people will have the reaction that this is pointless, and ultimately it's hard to pass judgement on something like this without getting to try one out — but as a cyclist, the sight of this immediately spoke to all my memories of crossing a distance without my bike and wanting nothing more than to roll. There have been various attempts at wheeled shoes over the years, but none that are very compelling. If it works even reasonably well (and the video suggests it does once you get the knack of it) it could actually fill a nice little gap: a wheeled device that isn't bulky like a skateboard or hard to get on and off like rollerblades.

Wheels Where You Want Them: The Beercan Board
About 10 years ago, I worked in a skateboard store for a couple of years. I was never very good at the sport itself, but I sure got lots of practice putting them together, and at convincing skeptical parents to stomach the price tag. Two things I noticed about skateboards was that there is very little variety in their configuration, and also that they all break — often quickly. The Beercan Board changes both those things.

It's not the first aluminum longboard, but it's a great design, and its central feature is pretty innovative: sliding mounts for the trucks, so the wheelbase can be easily adjusted. Judging from the video, it looks like it's accomplished with a combination bolt that allows quick changes without removing the whole assembly (and of course without drilling new holes, which is the only option on most boards). Neat.

Wheels That Work Better: Loopwheels
Folding bikes and other compact cycling options have been around for a long time, and they can be excellent for certain uses — but there's just no denying that the riding experience is much more frustrating and tiresome on those little 20" wheels. The Loopwheel is a shot at alleviating that problem.

As the project page admits upfront, this is nothing less than an attempt to reinvent the wheel. Using springs instead of spokes could open up a whole new level of suspension for compact bike designs that aim to keep size, weight, and bits-that-stick-out to a minimum. The creators claim a distinct advantage over suspension forks, the current solution for compact suspension: Loopwheels offer tangential suspension that cushions impacts from all directions. Again, it's hard to say how big the difference is without trying it, but that assertion makes sense based on the design, and in the video the wheels appear to be quite effective. Nothing could make small wheels as luxurious to ride on as big ones, but any innovation that succeeds in making folding bikes more pleasant is bound to be a hit.

That's all for this week's awesome stuff — thanks for coming along for the ride.

We've talked many times about how patents are often used as weapons to kill innovative startups that threaten legacy players. Ryan alerts us to a perfect example of this in practice. 1-800-CONTACTS, the giant online contact lens/glasses space, is trying to kill off an upstart innovative competitor called Ditto. And, no, this is not a case of Ditto copying something that 1-800-CONTACTS invented. The details are astounding. First of all, Ditto's main innovation is doing something that 1-800-CONTACTS does not do (though it has since announced plans to introduce something similar), which is to let buyers of glasses take a quick webcam video of their face, and then be able to see what they would look like in various pairs of glasses. That's pretty cool. The 15 person startup got some funding for this... and then promptly got sued by the bigger company. And 1-800-CONTACTS' actions in this case show that it set out, deliberately, to kill off this innovative startup:

It appears that 1-800-CONTACTS' CEO went onto Ditto's website the very day it launched, presumably to investigate the upstart competitor's new technology. Having seen Ditto's product, 1-800-CONTACTS then went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user's face.

But here's the thing: 1-800-CONTACTS does not appear at all interested in licensing the patent to Ditto. Rather, it seems determined to put Ditto out of business. Period. So it's suing Ditto in federal court in Utah, hundreds of miles from Ditto's headquarters in California.

Yes, you read that right. First, the CEO went and saw the site, then sought out and bought a patent that could be used against the company (in this case, US Patent 7,016,824), then brought suit in a very inconvenient jurisdiction and, finally, isn't even entertaining the idea of licensing the patent. And, of course, the patent itself seems highly dubious in quality. Ditto thinks it would win the lawsuit, but spending what little money it has on litigation will almost certainly kill the company anyway. Even if it wins, it will likely lose by using up its money not on innovating, not on delivering a great service to people who want it, but on fighting a bully.

The EFF is asking for help in finding prior art for this patent, via StackExchange's prior art section, in the hopes that the patent can be invalidated quickly. In the meantime, though, shame on 1-800-CONTACTS for being an anti-innovation legal bully. Of course, this isn't the first time we've written about 1-800-CONTACTS doing dubious things against competitors. In the past, it's sued competitors for keyword ads, despite having lost similar cases and despite buying keywords on competitors itself. It seems that the company is willing to use the legal system to crack down on competition whenever it can, which makes it seem like a company worth avoiding when looking for any kind of corrective lens solutions.

ChurchHatesTucker points us to the latest news about Aereo, the service that has been facing endless opposition and jumping through countless legal hoops just to be able to offer a simple service that lets people watch public TV broadcasts online. Undaunted, Aereo recently announced plans to launch in Boston, which spurred an analyst to ask CBS (which is engaged in a lawsuit against Aereo in New York) how it would respond:

McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.

It didn't end there, either:

After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."

Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."

The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?

The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.

The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.

But doing any of that from slightly further away? 'Illegal!' cry the networks.

Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.

Here are two words that have no business hanging out together: "used MP3s." If you know anything about how computers work, that concept is intellectually offensive. Same goes for "ebook lending", "digital rental" and a host of other terms that have emerged from the content industries' desperate scramble to do the impossible: adapt without changing.

These concepts are all completely imaginary, and yet we treat them as if they are real, and have serious discussions about every last detail of how they function — like a debate about the best mutant superpower, but with multimillion dollar lawsuits. Copyright necessitates that we all pretend we don't know any better. It makes us act stupid.

Take "used MP3s" for example. The idea is instantly nonsensical, and proposing it seems on par with asking how all those people fit inside the television. A "used MP3" is indistinguishable from a "new" one, and on the internet there's no such thing as an individual, discrete copy of an MP3 that gets "moved" from one person to another anyway. Speaking even more broadly, a "file" is not a "thing" at all — it's a concept that we use to help organize and visualize the even more abstract concept of "information" in many different places and states, whether magnetically inscribed on a hard disk platter or being transmitted via radio waves (not to mention the internal operation of a computer, where pieces of the information are shunted around between multiple different components and caches).

A "file" is an analogy, and like all analogies, it's incomplete. It breaks down when taken too far, and then it must be discarded, because analogies only exist for our convenience. "Moving" a file is also an analogy — in reality, we are copying it and then deleting the original. Even deleting a file is usually an analogy — the data is still recoverable, the computer has just been instructed to pretend it's not there anymore.

The purpose of these analogies is not to impose limitations on reality. We don't give up the ability to copy a file because we simulated the ability to move it. We don't have to pretend information degrades like physical objects just because we chose to conceptualize it that way. If we want to describe something as "the size of 10 football fields", we don't demand there be gridiron lines painted on it. There's a reason that stubbornly sticking with analogies is referred to as torture, and every discussion about "used files" or the difference between moving and copying is another turn of the screw.

Because of copyright, we are constantly asked to pretend that these analogies are binding. When we "lend" a Kindle ebook, we must pretend that we gave a thing away and don't have it for a while, when in fact our device is just refusing to let us access it. When a library wants to lend out ebooks, they must pretend they have a "limited number of copies available." When we buy software with an activation code, we must pretend that we "only bought one" and thus can only have it in one place at a time. When we rent a digital movie, we must pretend that we "have to give it back". We have to pretend we're stupid and that our devices have limitations which don't actually exist.

But here's the real kicker: the moment there might be any benefit to the consumer, the content companies toss the analogy out the window, and suddenly want to talk about reality. Thus you get things like ReDigi, the would-be used MP3 market that recently lost in court. ReDigi attempted to make MP3s simulate discrete items by enforcing the analogy of "moving a file" using a monitoring system, such that when you sold an MP3 to someone, it would make sure you deleted your own copy. Though we always suspected it was doomed, it was at least rather fascinating from a legal and policy perspective, potentially creating a clash between copyright and first sale rights. After all, if we are expected to treat digital files like physical property, we should at least be getting the rights that come with that.

But this time the record labels wanted to focus on the fact that there's no such thing as moving a file, and pointed out that ReDigi involved making copies whether or not it also involved deleting other copies — and the judge agreed. This is actually correct, technically and realistically — just don't tell them that next time, when it doesn't benefit them and they're back to calling infringement theft. As if to underline their masterful doublethink when it comes to the nature of property, the labels are all about having their cake and eating it too.

ReDigi is hardly the only example. We've written before about the insane situation with TV and movie streaming, where companies do things like set up a warehouse full of separate DVD players that stream from individual discs, or install a separate TV antenna on the same rooftop for every customer who wants an online stream. They are forced to willfully ignore technological capabilities, engineering principles and simple common sense just to conform to all these broken analogies — and they still face massive opposition from content owners and broadcasters every step of the way.

The real issue, when you get down to it, is that copyright itself is imaginary. A "song" or a "novel" is just as analogical as a "file". Originally, copyright law was very concerned with separating the expression of an idea from the idea itself, and in theory that's still the case, but in practice the line has proven almost impossible to draw. So first we conceptualize an abstract thing like "content" as discrete pieces, then we conceptualize all the abstract rights associated with those pieces, and then we conceptualize the discrete units of distribution and ownership within those rights.

These are all imaginary concepts, built on top of other imaginary concepts, built on top of still more imaginary concepts. It's turtles all the way down.

This does not necessarily mean that there's no place for copyright in the world. But in order for it to function, we have to remember that it's an analogy — it's something chosen and used to achieve a purpose, not something that binds and shapes reality, or that we must conform to at the expense of our better judgement. Originally, copyright was just that: a choice by society to employ the analogies of ownership and property in limited, specially-tailored ways in order to achieve a desired result — a flourishing intellectual and artistic economy. Today, copyright is worlds away from what it was then, and it does more to hinder that goal than help it... but many people seem to have forgotten that it's a just a tool, and we can always put it down.

In all the discussion about the various reasons people give for violating copyright, I think there's one that goes unmentioned: a lot of people just refuse to pretend to be stupid.