First, patents in fields where innovation moves fast and is relatively cheap—like computing—should have shorter terms than those in areas where it is slower and more expensive—like pharmaceuticals. The divergent interests of patent-holders in different industries have held up reform, but there is no reason why they should not be treated differently: such distinctions are made in other areas of intellectual-property law. Second, the bar for obtaining a patent, particularly for software or business methods, should be much higher (as it is in other countries), and the process of re-evaluating bad patents should be more open and efficient. Finally, there should be greater disclosure requirements of the ownership of patent portfolios, and patent cases should be heard by specialised courts (as happens in other areas of law), rather than non-expert juries in advantageous jurisdictions in Texas. That would make life harder for trolls. These fixes would help America’s patent system encourage innovation rather than litigation.

This had the unintended consequence of dramatically increasing the influence of the patent bar over patent law. Not only do Federal Circuit judges spend all their time hearing arguments from patent attorneys, but some of them are former patent attorneys themselves. In its first two decades, the Federal Circuit gradually shifted patent law in the pro-patent direction favored by most patent attorneys. Patents became easier to get and harder to invalidate. The courts allowed tougher punishments against infringers. And the Federal Circuit unilaterally eliminated traditional limits on patenting software and “business methods.”

But when the Federal Circuit became the only court ruling on patent cases, there were no more circuit splits and no more competing legal precedents. That might be why the Supreme Court seems to have barely noticed that the Federal Circuit was dramatically reshaping patent law in the 1990s. The high court reviewed only about a dozen Federal Circuit decisions between 1982 and 2004, and the ones it did review tended to be on narrow, technical issues. The Supreme Court finally began to give the Federal Circuit’s handiwork some serious scrutiny when Chief Justice John Roberts took the bench. And the justices did not like what they saw. In the Chief Justice’s first three terms, the high court heard five different patent cases, and all of them resulted in unanimous or near-unanimous reversals of pro-patent decisions by the Federal Circuit.

But a lot of the damage had already been done. Hundreds of thousands of low-quality patents had been approved under the permissive rules the Federal Circuit had developed during the 1990s. Those patents may be technically invalid under recent Supreme Court decisions, but that’s of little help to a small company that can’t afford to litigate the question.

• Create an independent invention defense: We've been arguing this for years. If the patent system is supposed to protect innovators, the fact that it blocks even those who invented something entirely independently goes entirely against the principles of the patent system. Even in copyright law (generally seen as more strict than patent law) there's a defense based on independent creation. If you haven't copied someone's patents or were completely unaware of someone's patent, it's ridiculous to claim you were infringing on that patent.
  
  If you understood how infrequently patent disputes involve anyone actually copying a patent (or a patented invention), you'd realize how much of the problems of our patent system this would solve. Unfortunately, patent holders and the press (especially) frequently mislead on this point, claiming that patent infringement suits are about companies "copying" or "stealing" from the patent holder. That's almost never the case. Studies have shown over and over again, that even though you can get treble damages for showing someone willfully copied a patented invention, it's almost never asserted.
  
  
• Recognize that independent invention is a sign of lack of patentability: This one is a bit more controversial, but the point of the patent system is supposedly only to reward patents on inventions that are non-obvious to those skilled in the art. If multiple people, skilled in the art, are coming up with the same thing independently at the same time, it seems like pretty strong evidence that, in fact, the ideas were obvious to those skilled in the art. There has been a lot of work done lately showing that nearly all major inventions are independently invented at around the same time by multiple people. And there's a view that's gaining support that basically what fuels such innovation is not patents at all, but just that all the factors necessary for the "next step" are in place, and those skilled in the art can just take that last step.
  
  Thus, in such cases where there is independent invention, it shouldn't just be a defense against infringement, but it should be evidence that any such patent is invalid, as it doesn't qualify as non-obvious to those skilled in the art.
  
  
• Patent examiners should seek out input from those actually skilled in the art: Since the very standard for patentability is those skilled in the art, they should at least be able to weigh in on the patentability and obviousness of the solution in question. As it stands, patent examiners may be smart in a particular field, but since they don't actually work in that field, their knowledge is not always really up to date. I'm sure they try their best, but there's a difference between those who actually build stuff and those who don't.
  
  Patent system supporters hate this suggestion, and they often claim that "jealousy" will lead others to claim that an invention is obvious. There are easy ways to control for this however. We're not saying that if anyone says, "this is obvious," the patent is automatically rejected. Rather, we're saying that it's another source of data and input for the examiner to make a determination of obviousness. That is the person actually skilled in the art could present an explanation for why something is obvious, and the examiner can then take it into account, and use that as another bit of information.
  
  
• Drop the assumption of validity and allow for greater post grant review: This is the one that really upsets patent system supporters, as they would like to go in the other direction. But, really, the arguments for assuming patent validity are really, really weak. As we've discussed before, the patent system gives one entity a full government-granted monopoly based on one person spending an average of about 16 to 17 hours on a single patent, and only hearing from the side who wants the patent. They almost never hear an adversarial position during the review.
  
  That's kind of insane when you think about it. If we're going to approve patents on such a flimsy system, the least we can do is admit that they can be opened up for review much more easily. Hell, why not use the system described in the point above (creating a panel of actual people skilled in the art) to evaluate patent appeals on any patent in dispute. It doesn't even have to be done during the initial examination if we get rid of the assumption of validity and the difficult current process to get post-grant review.

In this case, the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley. Although the Court declines to conduct an exhaustive inventory of the 150 allegedly infringing images, a representative sample illustrates and confirms this result.

But there the similarity ends. The Gordon Image is black and white and vertical, while the McGinley Image is in full color and horizontal. The Gordon figure is clothed in a short-sleeve T-shirt, dark pants, and tennis shoes; his hair is closely shorn. The McGinley figure is clothed in a longsleeve shirt and shorts and is barefoot; his hair is medium-length. Plaintiff attempts to obscure these “peripheral” differences by cropping and rotating the Gordon Image and converting the McGinley image to black and white. (Pl.’s Opp’n 18.) But not even these alterations can reconcile the “total concept and overall feel” of the two images. The Gordon figure is muscular and taut, with not one but both arms splayed in a gesture of virile triumph. The look on his face is intent, perhaps even defiant. The McGinley figure is slender and his posture relaxed, with both legs floating apart rather than clenched together. His head drapes to one shoulder and a dreamy look inhabits his face as he falls through the frame. Thus, the overall feel of the McGinley Image is that of a passive figure simply surrendering to gravity, while the overall feel of the Gordon Image derives from a dynamic figure jumping into the frame. No dissection of the images is required to discern the “utter lack of similarity” between the two.

Moreover, the substance of the expert affidavits simply underscores the infirmity of Plaintiff’s infringement claim. Several experts profess a belief that Plaintiff should prevail in this action while disavowing any familiarity with copyright law. (See Pl.’s Opp’n, Ex. B, Aff. of Dan Cameron, June 27, 2011, ¶ 4 (“I do not pretend to understand all the legal complexities of Ms. Gordon’s case”); id., Ex. F, Aff. of Volker Diehl, June 29, 2011, ¶ 9 (“I am unfamiliar with laws surrounding this issue, in particular the laws of the United States as it pertains to such causes of action”).) Another opines on the contours of “fine art ethics” (id., Ex. D, Aff. of Heather Holden, June 24, 2011, ¶ 12) and acknowledges that art expertise “may be needed” to discern the relationship between the images at issue (id., Ex. D., Holden Aff., ¶ 11). What is clear from the foregoing expert testimony is not that Plaintiff should prevail in this action, but that the remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court.

Plaintiff's apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression.

One might have hoped that Plaintiff - an artist - would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law.

• About 60% of people (surveyed by the WateReuse Research Foundation) don't want to drink water that has ever had direct contact with sewage. The other 40% are wastewater engineers. [url]
• Manufacturing plants are apparently releasing lots of pharmaceuticals into wastewater streams. And wastewater processing facilities aren't catching the drugs before releasing them into rivers... [url]
• Oklahoma is responding to its ongoing drought after seeing more than its fair share of triple digit temperatures. Unfortunately, some predictions say this "exceptional drought" could last a bit longer, maybe until autumn. [url]
• To discover more related links on stuff we eat or drink, check out what's brewing on StumbleUpon. [url]  

• Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
• Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
• Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230's broad grant of immunity. This the Court may not do."
• Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

Benjamin Burnley – The group’s front man put the entire controversy in motion. Essentially, Burnley was under the impression he fired fellow band members Aaron Fincke and Mark Klepaski. Stated in their Band Agreement, any internal dispute would be handled via arbitration. If you don’t know what this means, arbitration is a method of settling disputes outside of court. This route is extremely common in the music industry because arbitration records typically remain private unlike court documents that can be publicly accessed. Burnley, via his legal counsel Brian Caplan and Jonathan Ross, requests to activate the arbitration clause in the band agreement and demands an award of $250,000. More on the amount later.

Aaron Fincke and Mark Klepaski, through counsel, James Oschal of Rosenn, Jenkins and Greenwald LLP, claim the Band Agreement is null and void therefore making an arbitration clause irrelevant. They request that the Pennsylvania state court hear the case and dismiss the validity of the arbitration clause. At this time, they are not seeking any monetary damages. Believe me that’s coming.

Hollywood Records – Currently they are a non-factor but I promise they’ll become the star of this dispute in no time. Basically all the label wants is to release the album(s) allegedly agreed upon between the label and band. Sideline this thought for a minute as it will become a significant legal stance later on.

• January 2009 – Burnley, Fincke, and Klepaski enter into a Band Agreement.
• March 2010 – Breaking Benjamin allegedly enter into a Recording Agreement with Hollywood Records.
• March 2010 – Burnley allegedly communicates to band members, Fincke and Klepaski, along with the band's attorney, Nick Farrara, that he didn’t want to proceed with the Recording Agreement.
• March 2011 – Burnley dismisses Fincke and Klepaski from the band.
• June 6 2011 – Burnley seeks arbitration and a remedy of $250,000 from Fincke and Klepaski.
• DATE UNCLEAR ON COURT DOCUMENTATION – Fincke and Klepaski request a declaratory judgment from the Pa. State Court.

1. Is the Band Agreement valid because the Band Agreement essentially dictates who entered into a contract with Hollywood Records? Meaning – Did Breaking Benjamin as a collective group OR as Finckle and Klepaski acting as individuals and unauthorized representatives of the band sign the Recording Agreement.
2. Who owns the Breaking Benjamin trademark? The trademark dictates how the band proceeds with future recordings.
3. What happens to the Hollywood Records Agreement?
4. Bonus: Because label haters probably want me to dissect the Recording Agreement into a bloody carcass, due to the cyber-bullying and arm-pulling, I’ll reluctantly do so. However, I warn you that during this time of the legal dispute, the Recording Agreement is somewhat irrelevant as the Band Agreement and the Breaking Benjamin internal drama must unravel first.

1. “In our reasonable effort”
2. “Unique Services”
3. “Notice must be mailed”
4. “Members will be joint and severally liable”

• $200 for innocent infringement
• $200 for contributory infringement
• $1 to pay off the conspiracy charge... while not admitting to any conspiracy (another theory presented is that in using BitTorrent, you enter into a "conspiracy" -- a claim we won't debate this time around, but may revisit another time)
• $10,000 for the negligence of having an open router

Perhaps hoping to avoid this limitation, the essay suggests that operators can be held liable under a general tort theory of negligence (meaning, it's not a copyright claim, just a general injury claim). But that approach immediately crashes against another legal wall. Section 230 of the Communications Decency Act offers broad immunity from tort claims (including negligence) to providers of “interactive computer services” for claims arising from the activities of their users. The statute’s broad definition of interactive computer service includes “specifically a service or system that provides access to the Internet.” (emphasis added).

The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid). So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage. If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?

That’s what negligence is: It is the law saying “You really should have seen that coming.” When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence.

And the kind of person who would steal wifi is more likely to steal something else, isn’t he? So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.

Thilo Weichert, who works for the data protection centre of the northern German state of Schleswig-Holstein, said the social network’s application allowing internet users to express their appreciation of something online, illegally cobbled together a profile of their web habits.

“Facebook can trace every click on a website, how long I’m on it, what I’m interested in,” he said. According to Weichert, all the information was sent to the US company even if someone was not a Facebook member.

Saying this contravened both German and EU privacy laws, Weichert demanded websites in Schleswig-Holstein remove the ‘like’ button from their offerings by the end of September or face a fine of up to €50,000.

It has become clear that the only limiting factor on how much value I am to a case is how much responsibility I am given: the more responsibility I am given, the better the outcome. I am in kind of an uncomfortable position at the firm because although I am a “first year,” I have 15 years business and real world experience, as much as many senior associates. When I first got here I did not know what to expect, but after working here for several months now it has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing, and a superior legal mind to most I have met.

After conquering Silicon Valley, he decided to take his talents in a new direction, and in 2007 began law school at the University of Pennsylvania Law School in Philadelphia, PA

Mr. Berry’s communications were, as Ms. Conroy knew, entirely proper under the duties of his employment. Upon information and belief, refusing her project nonetheless angered Ms. Conroy and she lashed out by maliciously "reporting" Mr. Berry's e-mail to Mr. Marks.

Such vindictiveness is outside the scope of Ms. Conroy’s employment.

Complaining to Mr. Marks had no purpose other than to harm Mr. Berry and interfere with his employment.

We've heard your feedback regarding the permanent internet connection requirement for Driver and have made the decision to no longer include it. So this means that Driver PC gamers will only need to sign in at game launch but can subsequently choose to play the game offline.

[W]hat Driver's DRM has been reduced to is almost pointlessly different. Before if your internet connection went down while you played, the game would stop, and it wasn't possible to play anywhere without an internet connection at all. Now, er, if your internet connection is down you still can't play, and you still can't play anywhere without an internet connection.

Always On is by far and away the most egregiously stupid and unfair DRM to have ever been included with a game... It's something Ubisoft have boasted, without providing any proof whatsoever, has reduced piracy. While the claim without proof is meaningless, it also ignores the rather larger issue that so would locking the only copy of the game in a concrete block buried beneath the sea reduce piracy. It would also make it even more inconvenient for a paying customer.

But Ubisoft - if you're genuinely listening to the reaction against your DRM, then please actually hear what's being said. With DRM that requires an internet connection to launch, every time, you are once again mindlessly and needlessly punishing your legitimate customers in a way that will not affect those with pirated copies. You will, once again, be selling a product with a serious and significant defect, that those who download it for free will not be encountering. There's no logic or rationale that makes that okay. By requiring an internet connection for launch, on every launch, you punish anyone whose internet isn't working, who wants to play away from home (on a train, on a plane, on a holiday in Cornwall, at their grandparents' house, in their barracks...), or who cannot afford a broadband internet connection. It is cruel. It is stupid. It doesn't work on any level. If you are listening, really listening, then stop this. Stop treating customers like criminals, and start showing respect to those who pay you significant amounts of money for your products.

Inspired by responses to Let’s Make More Regulations.

1. Don't destabilize the domain name system
2. Leave search engines and hyperlinks out
3. No private enforcement
4. Correct ongoing abuses by DHS
5. Clearly define "rogue" Web site

"However you feel about Twitter, it makes a big difference," says Kevin Strickland, owner of Ziggy's Bar & Grill and an avid Twitter user, who runs the account for both of his restaurant's locations. "I depend on it. It allows me to have a dialogue with my customers, and they'll usually get a response from me."

Strickland emphasizes that Twitter should not be used by restaurateurs eager to take a crack back at unruly diners. "I've done the opposite," he points out, referring to times when he's seen patrons Tweet about a bad meal elsewhere, and inviting them in to have a better meal at Ziggy's on him.

5. Innovation Is Being Squelched

Software innovation depends heavily on the exchange and iterative development of new ideas, but such exchange is precisely what software patents are designed to prevent. Numerous patents have been granted that are excessively broad, too, making it virtually impossible to develop original software without fear of infringing.

6. Small Companies Are Being Shut Out

For all of the above reasons, you could be the most brilliant and creative software developer ever, but if you don't have pockets deep enough to pay hefty licensing fees and start a patent war chest of your own the way Google is being forced to do, you are simply out of luck. End of story.

7. Consumers Pay the Price

Small businesses suffer as a result, but ultimately the even bigger loser--as always--is the consumer. Under this system, control of ideas is falling into the hands of the companies that are big, fat and unable to innovate, simply because they have the money and no other easy way to earn more. That, in turn, means the little guys--the innovative ones--can't bring to market the next big thing that could change consumers' lives, at least not without a heavily inflated price.