Forty five years ago Judge Lumbard of the United States Court of Appeals for this circuit called a case a "Frankenstein monster posing as a class action." ... The description fits the class aspects of this case.

The putative class consists every person and entity in the world who own infringed copyrighted works, who have or will register them with U.S. Copyright Office as required, whose works fall into either two categories: they were subject of infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the "repeat infringement class"), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the "music publisher class"). Plaintiffs assert that there are "at least thousands of class members" the Repeat Infringement Class, and "hundreds" in the Music Publisher Class...

Here to make resolutions which advance the litigation will require the court to determine, for each copyrighted work claimed to have been infringed, whether a copyright holder gave notices containing sufficient information to permit the service provider to identify and locate the infringing material so that it could be taken down. That requires individualized evidence. Further, the analysis required to determine "fair use," and other defenses, is necessarily specific to the individual case.

All AT&T Mobility customers can use any video chat app over cellular that is not pre-loaded on their device, but which they download from the Internet. For video chat apps that come pre-loaded on devices, we offer all OS and device makers the ability for those apps to work over cellular for our customers who are on Mobile Share, Tiered and soon Unlimited plan customers who have LTE devices. It's up to each OS and device makers to enable their systems to allow pre-loaded video chat apps to work over cellular for our customers on those plans.

It's not unusual for government officials -- the very people we disagree with regarding civil liberties issues -- to agree with us on consumer privacy issues.

But don't forget that this person advocated for full-body scanners at airports while on the payroll of a scanner company.

Imagine a world in which every major company in America flew hundreds of thousands of drones overhead, 24 hours a day, seven days a week, 365 days a year, collecting data on what Americans were doing down below. It's a chilling thought that would engender howls of outrage.

Now imagine that millions of Americans walk around each day wearing the equivalent of a drone on their head: a device capable of capturing video and audio recordings of everything that happens around them. And imagine that these devices upload the data to large-scale commercial enterprises that are able to collect the recordings from each and every American and integrate them together to form a minute-by-minute tracking of the activities of millions.

So, who owns and what happens to the user's data? Can the entire database be mined and analyzed for commercial purposes? What rules will apply when law enforcement seeks access to the data for a criminal or national security investigation? For how long will the data be retained?

Ubiquitous street video streaming will capture images of many people who haven't volunteered to have their images collected, collated and analyzed. Even those who might be willing to forgo some degree of privacy to enhance national security should be concerned about a corporate America that will have an unrestricted continuous video record of millions.

We need to consider what rights consumers have, and what rights nonparticipant third parties should have.

Maybe the market can take care of this problem. But the likely pervasiveness of this type of technology convinces me that government must play a regulatory role.

The new data collection platforms right in front of us are much more likely to affect our lives than is the prospect of drones overhead surveilling American citizens.

The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to the explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”

Cable and satellite channels, which traditionally rely on a dual revenue stream model, are eyeing YouTube’s subscription service to generate revenue from older shows and new programming, according to another person familiar with the project.

American Photographic Artists (APA) is joining the 15 plaintiffs in a lawsuit against Google. By joining the suit, APA alleges the “Google Book Search” program violates the copyrights of numerous photographers and other visual artists. The lead plaintiffs include: The American Society of Media Photographers, Graphic Artists Guild, Picture Archive Council of America, North American Nature Photography Association, Professional Photographers of America, National Press Photographers Association, Leif Skoogfors , Al Satterwhite , Morton Beebe , Ed Kashi , John Schmelzer , Simms Taback and Gail Kuenstler Taback Living Trust, Leland Bobbe , John Francis, Ficara, and David W. Moser.

[Clip]

Copyright protection and licensing images are two elements that ensure the sustainability of a professional photographer’s career,” notes APA National President, Theresa Raffetto. “APA membership consists of professional photographers who rely on these elements and is why APA advocates fearlessly for copyright protection. Holding Google Books responsible for their flagrant copyright infringement is something APA has been working on and we’re pleased to continue this fight in conjunction with the other plaintiffs.”

"A situation has been created by which illegally submitted documents can be easily viewed," chief judge Hisaki Kobayashi was quoted as saying by the Mainichi Shimbun newspaper.

Apparently, this is the infringing post: http://googlesystem.blogspot.com/2008/02/lyrics-for-youtube-music-videos.html (Google Cache). It's a post about a Greasemonkey script that allowed you to show music lyrics in the YouTube interface.

...

I've managed to find the DMCA notice: "The URL listed below is one of nearly 20 song lyrics sites who have attempted to post lyrics for the song titled 'Alden Howell' by the artist Inspection 12. The lyrics posted on this and other sites are not accurate and the artist has not given them permission to post lyrical content. Inspection 12 has been making efforts to contact these websites directly in order to have the content removed. We are attempting to have this URL and others like it to be excluded from google search results for the name 'Alden Howell'."

Unfortunately for Inspection 12, that blog post doesn't include their lyrics. In fact, it only includes a screenshot with lyrics from a much more popular punk band. Inspection 12 has never contacted me and no post from this blog mentions 'Alden Howell' (except for this post, obviously).

As Tim Cushing wrote in a recent headline, "in the long history of specious DMCA claims, this is definitely one of them." Chitu, unlike many people who are rightfully too intimidated by potential liability, filed a counternotice... and it was rejected.

So we've got an obviously non-infringing post that has been wiped off the web and, at the time of writing, is still gone. That's not okay, and it's time to ask how it happened. There's no shortage of reasons.

Firstly (or more accurately lastly), we've got Google's handling of the DMCA request. As Chitu points out, it was just a search result takedown, but Google chose to actually take the post off of Blogspot as well. That wasn't an accident, it's their process:

From time to time, the Search team may receive copyright removal requests for search results that link to other Google products like Blogger or YouTube. In these cases, we forward these requests to the appropriate teams to evaluate the allegedly infringing material.

Actually, maybe "process" is too generous. If they "evaluate" the requests (twice, apparently—once at Search and then again at Blogger), surely they would filter out a takedown like this one that doesn't even pass the laugh test. And not only did these two evaluations fail to catch it, the review they supposedly conducted after receiving a counternotice still didn't catch the error. Given the nature of the law and the requirements it places on Google, all of this is somewhat understandable, and would be somewhat excusable but for one thing: Google's terrible customer service. Blanket, form-letter rejections that ignore all reason and logic, sent by a faceless monolith, are among the most infuriating things a customer can receive. Good luck getting actual help with a human being.

But the buck hardly stops at Google. It doesn't even really land there. After all, why did Inspection 12 file this takedown in the first place? Chitu asked them just that:

I've contacted Inspection 12 and they say "that must have been submitted in error. not fully understanding the DMCA notice. our intent wasn't to post on a blog or complaints about a blog. it was to submit a complaint to google about websites that are posting lyrical content that is falsely described as Inspection 12 lyrics in order to sell ringtones."

That's a lot better than some of the furious missives we've seen in the past when copyright holders have been called on their shenanigans, but there are still some big problems. If you're "not fully understanding the DMCA notice," then you are not allowed to file it. How can you sign your name to say you have a "good faith belief" in something if you knowingly don't understand what it means? Inspection 12 is clearly guilty of abusing the DMCA process. But one thing they're probably not guilty of is perjury.

And that brings us to the final problem, where the buck really does stop: the DMCA itself. As we've discussed before, the prescribed text of a DMCA takedown notice employs some clever wording to imply (intentionally or otherwise) that it's more strict on the rightsholder than it actually is. The "under penalty of perjury" language is surgically separated from the bulk of the notice—it applies only to the statement that you are the copyright holder or an authorized agent of the copyright holder. As for the statement that the material you are targeting is in fact infringing, that's just made under a good faith belief. That is a much lower bar, and while it's not great to stand in court and have it demonstrated that you asserted a good faith belief when there was none, it's hardly a clear-cut and substantial safeguard against abuse the way "penalty of perjury" is.

So let's be clear on this: the DMCA is harsh on anyone messing with copyright holders by incorrectly claiming rights they don't own, but lenient on copyright holders abusing the public.

Nobody is blame-free here, except Chitu and his blog. Google needs to handle these requests better, and Inspection 12 should never have sent that notice (nor should they be wasting their time on a DMCA campaign against lyric websites in the first place). But the real culprit is the DMCA itself, which is constantly pushing companies like Google in this regrettable direction, and makes it all too easy for rightsholders like Inspection 12 to abuse the law. Until we get a system that holds both sides of the equation to the same standard, and until copyright holders demonstrate that they can use the takedown system judiciously and responsibly, all their protestations about online services not doing enough to fight infringement will fall on deaf ears (or be drowned out by laughter).

Though Google has mostly wrapped up the issue in the US, it is still dealing with the governments in other countries, and the latest news is that it has been fined €145,000 in Germany. Since that's pocket change to Google, frustrated regulators are calling for bigger weapons with which to slay the giant:

The country's data chief called it "one of the biggest known data protection violations in history".

But the regulator admitted the amount was "totally inadequate" as a deterrent to the company.

...

Under European regulations, the maximum fine for an accidental violation is 150,000 euros - but data protection supervisor Johannes Caspar called for that amount to be increased in future.

In a statement, the regulators said: "Among the information gathered in the drive-bys were significant amounts of personal data of varying quality. For example, emails, passwords, photos and chat protocols were collected."

Like so much of the response to the situation, a lot of this is political grandstanding spread by media outlets that are perfectly willing to make people paranoid about Google. Scrutinizing Google's privacy practices is definitely a good thing—this is a company a lot of people trust with a lot of data—and when they screw up, as they did here, they should face the consequences. But assuming they have villainous intentions in everything they do is foolish, and misrepresenting what happened here is wrong.

For starters, people love to list off the things Google collected—emails and passwords and the like—to imply that this was some sort of organized spying scheme. What they leave out is that the Street View cars were just arbitrarily recording bits of data they picked up from the open wi-fi networks, and while it certainly did include sensitive bits and bytes, there was no system or plan for actually looking through the contents of this data or making use of it. You might as well say the garbagemen have been collecting financial and government information, since there are plenty of sensitive documents in the trash.

Note the careful choice of words in calling this "one of the biggest known data protection violations in history." Maybe it is the biggest, in terms of sheer scale, but it earns no further superlatives. It's not the worst, nor the most damaging, nor the most secretive, nor even the most technologically advanced. Just the "biggest" in the most technical sense, which doesn't really mean much at all.

Then there's this idea that the fine is inadequate to deter Google. While any law based around fines is going to face the potential problem of rich people ignoring it, things are once again being blown out of proportion here. The regulators want to tell the story of the big, bad, deep-pocketed company that can defy the law with impunity, so that they can level bigger fines with more impressive headline dollar figures in the future—but that leaves out any discussion of whether the fine itself is appropriate. You can't tailor a fine to the richest potential violator of a law... What if it had been a small German startup hoping to create a local competitor to Street View that had made this mistake? Would privacy regulators still be calling for higher fines? For that matter, would they have pursued it at all, or just told them to knock it off?

Conversely, if Google or another company had actually made use of all that sensitive data—if they had read people's emails, or stolen anyone's credit card info ,or even made a text-file list of logins and passwords that was clearly intentional—then there would be other things to go after them for. You can bet they'd be facing big lawsuits and much more serious charges if there was even a hint of genuine fraud or hacking—but despite the best efforts of investigators in several countries, no such hint has been found. Google is facing a limited fine for the limited charge of collecting data because that's all it did. And let's still not forget that this was data on open wi-fi networks—no more secure than a CB radio, despite the tech-mystique that may surround it.

So let's keep holding Google to the highest standards of privacy, but let's not turn it into a witch-hunt. Accusing them of flagrant data-theft for what was in fact a technical oversight is bad for everyone. Apart from the fact that disinformation is always bad, placing all the blame on Google means failing to teach people about the nature of open wi-fi, meaning many of them are probably still leaving their data out there for anyone to see. And if nothing else, we certainly don't want to provoke that "well, if they're going to say we did it anyway...." mentality in Google.

Viacom's argument that the volume of material and "the absence of record evidence that would allow a jury to decide which clips-in-suit were specifically known to senior YouTube executives" (Viacom Opp. pp. 9-10) combine to deprive YouTube of the statutory safe harbor, is extravagant. If, as plaintiffs assert, neither side can determine the presence or absence of specific infringements because of the volume of material, that merely demonstrates the wisdom of the legislative requirement that it be the owner of the copyright, or his agent, who identifies the infringement by giving the service provider notice. 17 U.S.C. § 512(c)(3)(A). The system is entirely workable: in 2007 Viacom itself gave such notice to YouTube of infringements by some 100,000 videos, which were taken down by YouTube by the next business day. See 718 F. Supp. 2d 514 at 524.

Thus, the burden of showing that YouTube knew or was aware of the specific infringements of the works in suit cannot be shifted to YouTube to disprove. Congress has determined that the burden of identifying what must be taken down is to be on the copyright owner, a determination which has proven practicable in practice.

Here, the examples proffered by plaintiffs (to which they claim YouTube was willfully blind) give at most information that infringements were occurring with particular works, and occasional indications of promising areas to locate and remove them. The specific locations of infringements are not supplied: at most, an area of search is identified, and YouTube is left to find the infringing clip. As stated in UMG Recordings v. Shelter Capital Partners, LLC, No. 10-55732, 2013 WL 1092793, at *12 (9th Cir. Mar. 14, 2013) ("UMG III"),

Although the parties agree, in retrospect, that at times there was infringing material available on Veoh's services, the DMCA recognizes that service providers who do not locate and remove infringing materials they do not specifically know of should not suffer the loss of safe harbor protection.

The Karim memorandum states that infringing clips of some well-known shows "can still be found," but does not identify the specific clips he saw or where he found them. The Wilkens declaration submitted by plaintiffs asserts that there were over 450 such clips on YouTube at the time, and presumably some of them contained the infringing matter seen by Mr. Karim. To find them would require YouTube to locate and review over 450 clips. The DMCA excuses YouTube from doing that search. Under § 512(m), nothing in the applicable section of the DMCA shall be construed to require YouTube's "affirmatively seeking the facts indicating infringing activity."

Mr. Karim's memorandum does not tie his observations to any specific clips. Application of the principle of willful blindness to his memorandum thus does not produce knowledge or awareness of infringement of specific clips-in-suit, out of the 450 available candidates. Nor does any other example tendered by plaintiffs.

YouTube's decision to restrict its monitoring efforts to certain groups of infringing clips, like its decisions "to restrict access to its proprietary search mechanisms," do not exclude it from the safe harbor, regardless of their motivation.

This Panel Opinion is a classic case of bad facts making bad law. Amicus Electronic Frontier Foundation does not file this brief to dispute the Court's factual conclusions regarding the conduct at issue in this case. However, the Panel Opinion went far beyond what was necessary to address that conduct. As a result, it has created new legal uncertainty for online service providers and their customers, undermining over a decade of legislation and jurisprudence designed to help reduce that uncertainty. A predictable legal environment has proven to be crucial not only the growth of the Internet generally, but the growth of innovative platforms for free expression, in particular. This case should not provide a vehicle to impede that development.

Most important, the Panel Opinion adopts a "loose causation theory" that disconnects the scope of inducement liability from the defendants' acts—raising the troubling possibility that a single inducing act (such as a message to one customer) could open the floodgates to liability for third-party infringement entirely unrelated to that act. The Opinion's loose causation theory conflicts with fundamental common law principles of proximate cause essential to both predictability and fairness. The Panel's decision to depart from those principles was apparently based on the unfounded assumption that the Supreme Court's decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) requires it. Not so. First, Grokster expressly recognized that secondary liability under copyright derives from common law principles. Second, given that Grokster's specific inducement standard was imported from patent law, it is more likely that the Court also intended to import the analytical framework patent law applies where, as here, a service is capable of both infringing and non-infringing uses.

There is a danger that this passage could be misconstrued to stand for a broader proposition that we do not believe the panel intended: that any time an online service provider is found to have exercised "substantial influence" over any user-submitted content on its service—no matter what that finding was based on—it thereby loses its DMCA safe harbor protections for all user-submitted content on the entire service. This is how some copyright plaintiffs have already tried to read the panel's ruling. In a recent submission to the Southern District of New York in the Viacom v. YouTube case, for example, the plaintiffs have asserted, citing the panel opinion, that this Court “made clear that where DMCA eligibility is unavailable due to the right and ability to control prong of the safe harbor, the DMCA defense is broadly lost as to all clips in suit.” Ltr. from Paul M. Smith to Hon. Louis L. Stanton at 2 (March 22, 2013) (attached as Ex. 1).

Imagine, for example, a video-hosting service that was otherwise eligible for the section 512(c) safe harbor, but that on one occasion commissioned a particular user to upload a video that, unbeknownst to the service, turned out to be infringing. A court might conclude that the service exerted a “substantial influence” over that instance of infringement and, if the service earned a direct financial benefit from it, there would be grounds for denying the safe harbor for a claim based on that video. But it would make no sense to thereby disqualify the service provider from DMCA protection across the board—even for countless other videos whose posting it did not control or from which it earned no benefit.

Likewise, consider a search engine eligible for protection under the section 512(d) safe harbor for linking to infringing material online. If one of the millions of links provided by the search engine pointed users to infringing material that had been authored by the search engine itself and that users were charged to view, a finding of control plus financial benefit might be warranted for that particular link. But, again, there would be no plausible basis for categorically depriving the service of the safe harbor for the millions of unrelated links it delivers to material that it does not control or financially benefit from.

I called to cancel U-Verse because Time Warner offers Docsis 3.0 speeds for far cheaper in the Austin area. Uverse told me that select FTTH customers can now get 24/3 instead of the previous cap of 18/1.5. They just have to send a "special" technican to upgrade my equipment. I am letting them come and try because I don't believe it.

While AT&T took the cheaper route when upgrading portions of their network to fiber to the node, the company has historically offered fiber to the home to a few locations (less than a few hundred thousand), primarily in upscale housing developments. While those lines are capable of significantly higher speeds, AT&T has traditionally capped those users at the same speed as other U-Verse users. The company told me in 2007 this was to create a "more consistent experience."

That means you have users on cutting-edge fiber infrastructure, in some places seeing downstream speeds of just 6 Mbps -- and upstream speeds of just 1.5 Mbps.

Given these past speed issues, this is why most AT&T customers will believe 1 Gbps only when it's up and running.

Today, AT&T announced that in conjunction with its previously announced Project VIP expansion of broadband access, it is prepared to build an advanced fiber optic infrastructure in Austin, Texas, capable of delivering speeds up to 1 gigabit per second. AT&T's expanded fiber plans in Austin anticipate it will be granted the same terms and conditions as Google on issues such as geographic scope of offerings, rights of way, permitting, state licenses and any investment incentives.

“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data,” said Thomas Vinje, Brussels-based counsel to the FairSearch coalition. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

[....] Google achieved its dominance in the smartphone operating system market by giving Android to device-makers for ‘free.’

LAST month, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper than domestic editions. Until now, courts have forbidden such activity as a violation of copyright. Not only does this ruling open the gates to a surge in cheap imports, but since they will be sold in a secondary market, authors won’t get royalties.

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

That culture is now at risk. The value of copyrights is being quickly depreciated, a crisis that hits hardest not best-selling authors like me, who have benefited from most of the recent changes in bookselling, but new and so-called midlist writers.

Take e-books. They are much less expensive for publishers to produce: there are no printing, warehousing or transportation costs, and unlike physical books, there is no risk that the retailer will return the book for full credit.

But instead of using the savings to be more generous to authors, the six major publishing houses — five of which were sued last year by the Justice Department’s Antitrust Division for fixing e-book prices — all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts. That is roughly half of a traditional hardcover royalty.

Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it. But writers whose works sell less robustly find their earnings declining because of the new rate, a process that will accelerate as the market pivots more toward digital.

And there are many e-books on which authors and publishers, big and small, earn nothing at all. Numerous pirate sites, supported by advertising or subscription fees, have grown up offshore, offering new and old e-books free.

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.

If I stood on a corner telling people who asked where they could buy stolen goods and collected a small fee for it, I’d be on my way to jail. And yet even while search engines sail under mottos like “Don’t be evil,” they do the same thing.

Google says this is a “fair use” of the works, an exception to copyright, because it shows only snippets of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the revenue with the author or publisher.

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries.

An even more nightmarish version of the same problem emerged last month with the news that Amazon had a patent to resell e-books. Such a scheme will likely be ruled illegal. But if it is not, sales of new e-books will nose-dive, because an e-book, unlike a paper book, suffers no wear with each reading. Why would anyone ever buy a new book again?

Last October, I visited Moscow and met with a group of authors who described the sad fate of writing as a livelihood in Russia. There is only a handful of publishers left, while e-publishing is savaged by instantaneous piracy that goes almost completely unpoliced. As a result, in the country of Tolstoy and Chekhov, few Russians, let alone Westerners, can name a contemporary Russian author whose work regularly affects the national conversation.

YouTube enters into agreements with certain music copyright owners to allow use of their sound recordings and musical compositions.

In exchange for this, some of these music copyright owners require us to handle videos containing their sound recordings and/or musical works in ways that differ from the usual processes on YouTube. Under these contracts, we may be required to remove specific videos from the site, block specific videos in certain territories, or prevent specific videos from being reinstated after a counter notification. In some instances, this may mean the Content ID appeals and/or counter notification processes will not be available. Your account will not be penalized at this time.

The type of generalized guesswork that Viacom engages in bears no resemblance to the showing of specific knowledge of clips-in-suit that the Second Circuit demanded.

It is not Viacom's burden to prove specific knowledge or awareness. That factual issue is relevant only to the affirmative defense that YouTube is asserting; knowledge of specific infringements is not an element of Viacom's copyright infringement claims against YouTube. At trial, it will be enough for Viacom to prove that the clips-in-suit were on the website, along with some other elements of infringement liability.

Viacom does not even try to make the showing of clip-specific knowledge required by the Second Circuit’s ruling. It instead reverses course and claims that it is YouTube’s burden to affirmatively establish its lack of knowledge as to each specific clip-in-suit. Viacom’s novel burden-shifting argument is wrong. It is contrary to the Second Circuit’s decision, all the case law, and the structure of the DMCA itself. Viacom also ignores the record. YouTube has identified more than sufficient evidence of its lack of knowledge of infringement— including the very fact that the voluminous record in this case contains no evidence of such knowledge. Viacom’s inability to offer any evidence from which a jury could find that YouTube had actual or red-flag knowledge of even a single clip-in-suit requires that summary judgment be entered in YouTube’s favor.

At Google we believe that open systems win. Open-source software has been at the root of many innovations in cloud computing, the mobile web, and the Internet generally. And while open platforms have faced growing patent attacks, requiring companies to defensively acquire ever more patents, we remain committed to an open Internet—one that protects real innovation and continues to deliver great products and services.

Today, we’re taking another step towards that goal by announcing the Open Patent Non-Assertion (OPN) Pledge: we pledge not to sue any user, distributor or developer of open-source software on specified patents, unless first attacked.