Dajaz1 is a fairly clear cut example where due process has been violated. http://www.techdirt.com/blog/?company=dajaz1
The site was taken down for a year, without an opportunity to argue beforehand, and the DOJ never provided evidence nor filed charges. The claim was dismissed, but if a year's worth of censorship is considered acceptable, then something is rotten in the state of due process.
This is really more of a privacy issue than a copyright one though. If you breach a confidentiality agreement or trespass onto someone's property to take a photo, there are other legal remedies. There's no reason to screw around with fair use and copyright law to protect privacy.
This is less crazy than you think. It reminds me of the argument that anyone who leaves their WiFi unsecured is negligent and is therefore liable for any copyright infringement that happens over that network.
So if IV ever goes a small impoverished nation that is distributing IV's patented bug zapper, can we throw this in his face? Better yet, can someone ask him what he thinks about patenting life-saving drugs and charging a 1st world mark-up in the 3rd world?
When your fresh new product gets hit by a patent troll with it's coffers full of 10-15 year old patents they will most certainly argue that back in 1998 this was cutting edge research
Sometimes true. But this is actually a feature IMHO. This solves the variable patent length problem -- i.e. what gets 10 years? What gets 20? If your invention is novel now, but will be so obvious in ten years that anyone can independently invent it, then you effectively get a 10 year patent.
I'd argue that this would more efficiently "promote the progress." Under the current system, the incentive is to make small incremental advances, because they're cheaper yet still get the same patent protection as larger advances. With an independent patent defense, the amount of protection would scale with the magnitude of the advance, thereby rewarding larger jumps.
In short, it's thanks to the troll that you were able to come up with that fine product "on your own" last year.
Maybe. Let's suppose the troll's publication actually contributed some indirect insight. One compromise is to permit juries to scale patent damages accordingly. So if the troll's insight contributed to 1% of your product, they get only get 1% of the award they normally would.
Some folks might say that whatever percentage the jury picks is somewhat arbitrary, but juries do this all the time already and it works well enough. For example, in most states, if there's a car accident between two drivers, a jury can decide that one driver is 60% at fault and the other 40%, and divide up damages accordingly.
Even if you prevail over the troll, with all the publicity of a court case, no one else can claim ignorance of the invention after that so the independent defense will only let one inventor across the bridge.
This conflates notice of a patent with notice of the actual invention. Patent holders often point out that the specifics of a patent are often more complicated than the one-liner the press assigns to them -- e.g. Apple might say that while "universal search" has been around for a while, what makes their patent novel is a non-relational database scheme, dynamic linking, insert-technical-jargon-here.
An independent invention defense lets the inventor flip that argument on its head -- why yes, I was aware that Apple has universal search in the iPhone, but universal search been around forever. What makes it special in my product is this technical implementation that wasn't disclosed by all the press reports surrounding the lawsuit.
Another approach, and one Mike sometimes suggests, is that independent invention is really just a proxy for obviousness. In that case, if you win independent invention, you win obviousness, and that kills the patent, thereby letting everyone across the bridge.
Here's who the negotiations leave out -- the companies that don't exist yet.
5 years from now, a start up may create an amazing new piece of technology, yet run afoul of the current patent thicket. Will any of negotiating parties adequately represent the interests of a not-yet-existing competitor? Doubtful.
Re: Hard for me to see how that could work in practice
If you could get around federal preemption, I could see this being asserted as a pure state law claim. Think of it this way: If you let a guy in a ski mask borrow your gun, which he then uses to rob a bank, the bank might sue you for negligence.
Here's the kicker though - under a pure negligence theory, you don't get statutory damages. You only get actual losses (plus punitives, which are still limited relative to statutory damages). Which is probably why copyright holders haven't tried rolling it out more often.
I think you're being a little too hard on the judge Mike. The whole point of a patent is that you don't have to compete. With the exception of FRAND patents, it's difficult to quantify the "damages" incurred from competition. Hence, injunctions banning competition.
That's not to say the patent itself was valid (or should be valid) or that Samsung was infringing. But I wouldn't chalk up the injunction itself as a crazy-activist-judge-ruling.
The current Supreme Court seems to take a fairly broad view of the First Amendment -- e.g. Citizens United -- so I wouldn't be too surprised if the argument got upheld.
To take it to an extreme, Verizon's argument is this: Imagine I own a billboard, which I permit Democrats to put ads on, but not Republicans. Net neutrality is like the government mandating that I have to host Republican ads as well. That seems to raise something of a First Amendment concern.
Obviously, the distinction is that Verizon is making "expressive choices" based on commercial rather than political concerns, but Citizens United makes that line a little murkier than it used to be.
The government subsidy argument is interesting, but I'm not sure how far it'll go. One of the arguments being advanced against Citizens United was that states had the right to regulate corporate speech as a condition of the "subsidy" corporations get in terms of limited liability, favorable tax treatment, etc. That argument didn't quite work out.