by Mike Masnick
Wed, May 16th 2012 7:35pm
by Glyn Moody
Wed, May 9th 2012 7:30pm
from the yes,-hard-to-believe dept
The damage that software patents cause to innovation in the computer world is a constant theme here on Techdirt. But as a fascinating new paper by James Boyle explains, the threat to open source, particularly from patent injunctions, is even greater because of the special characteristics of that software development methodology:
If open source innovation has great social benefits in fostering competition and innovation, it also has particular vulnerabilities. First, precisely because open source development takes place in a network and allows both small and large players to participate by building on a common technology, it is particularly susceptible to attack and disruption. A proprietary monopolist fully internalizes both the costs and benefits of policing its technology and its intellectual property. Members of an open innovation network, however, do not. Individual members can be "picked off," forced to abandon promising lines of technological development, or to pay ruinous "stacked" royalties because the costs of litigation are too burdensome for any one member of the network to bear. It is in this context that the threat of injunctions is particularly worrisome. In fast-moving technology markets, the dead stop forced by an injunction can be enough to doom a product. An entire network of innovation could be shut down by an injunction obtained against a single small participant who lacks the resources necessary to challenge the patent or defend against the injunction.
Boyle explores these great points at length in his paper, which is well-worth reading. He also offers some suggestions for ways in which the threat of patent injunctions against open source can be reduced thanks to a ruling by the Supreme Court, eBay, Inc. v. MercExchange, L.L.C, and the four-part test it introduced:
Second, most of these markets are characterized by strongly cumulative innovation. A finished product may "read on" literally thousands of potential patents.
the Court held that permanent injunctions in patent law are governed by the same equitable four-part test as injunctions in other areas of law.
A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
this Article argues the Supreme Court’s test in eBay, properly understood, offers some constructive ways to respond to both the benefits of open source innovation and the threats posed to it by injunctions. In particular, the third and fourth factors -- the "balance of hardships" component and the "public interest" component -- are ideally suited to allow recognition of the unique vulnerabilities and the unique competitive and innovative value of open source production.
As open source becomes more widely deployed, so the potential damage that software patents can cause to it grows. Boyle's paper is a timely reminder that judges need to take into account the special nature of open source when considering whether to grant patent injunctions if society as a whole is to benefit, and not just the patent holders.
by Glyn Moody
Mon, Apr 16th 2012 1:20pm
from the do-as-you-would-be-done-by dept
Here's an interesting development in the legal battle between Microsoft and Motorola in Germany that we discussed recently. It seems that Microsoft is worried that the German court might award Motorola an injunction against it, and so has asked a US judge to stop Motorola from using it in that case -- and he agreed:
In an unusual case, a U.S. judge ruled on Wednesday that Motorola cannot enforce an injunction that would prevent Microsoft from selling Windows products in Germany, should a German court issue such an injunction next week.
So this is a US judge forbidding a company from applying an injunction that it might be awarded in Germany, by a German court. That sounds rather like one jurisdiction is interfering with another, but Microsoft apparently thinks that's reasonable:
Microsoft argued that if the judge would allow that German injunction to go forward, which ultimately might compel Microsoft to negotiate a license according to German law, the U.S. court would lose its opportunity to make its own ruling on similar licensing issues. The U.S. court should be the one to rule on that issue, Microsoft argued, because Microsoft filed its lawsuit against Motorola over the terms of a licensing deal before Motorola filed its suit in Germany.
It's striking that Microsoft isn't such a big fan of patent courts -- especially efficient ones that produce their judgments rapidly -- when it is on the receiving end of patent lawsuits, rather than the one making the threats.
It's also pretty rich that Microsoft should complain about the possibility of an injunction being granted against it by another jurisdiction when that is precisely what it is trying to do by filing an action against Motorola in the International Trade Commission as well as in a US District Court. If Microsoft says German courts shouldn't get involved in its dispute with Motorola, it's equally ridiculous that an international trade body should be dragged into a domestic dispute between two US companies, as Techdirt has noted before.
Basically, Microsoft is just whining because it thinks it's going to lose in Germany, and has gone running to the US judge in an attempt to subvert that country's judicial system. It's a huge pity that he acceded to this ridiculous request: it creates a terrible precedent that's likely to lead to more such interference in the legal systems of other countries -- including foreign courts ordering companies not to obey US rulings -- and a general weakening of respect for the rule of law around the world.
by Glyn Moody
Thu, Apr 12th 2012 12:00am
from the makes-you-think dept
Just as companies often try to file their patent lawsuits in East Texas, so Germany is emerging as a favorite forum for patent litigation in Europe -- and for precisely the same reason:
Germany's specialized court system, where cases are ruled on relatively quickly and it can be easier than in other countries to get an injunction, is increasingly leading technology companies to file patent lawsuits there, say patent law specialists.
That ought to place Germany in an enviable position. After all, a common argument from supporters of patents is that foreign companies will be more willing to set up in countries with strong patent regime. So it's curious that the article about Germany's patent-friendly courts quoted above goes on to say:
Motorola sued Microsoft over patents it has on the H.264 video standard, which led Microsoft to move its European distribution center from Germany to the Netherlands even before the German court of Mannheim ruled in the case.
It explains that move as follows:
Apple tried to get an injunction against Samsung in the Netherlands. Samsung's European distribution center is located in the Netherlands, so if Apple would have won, this would have effectively paralyzed Samsung's business in Europe. The judge denied the injunction, meaning Samsung could continue its business in Europe.
This exposes the fundamental flaw in the argument that a patent-friendly legal system will encourage inward investment. However much foreign companies may welcome the ease with which they can sue their rivals and obtain injunctions against them, they also know that they are also more likely to be sued and blocked by injunctions themselves.
This ruling is why Microsoft chose the Netherlands for its distribution center when it decided that Germany was too risky with Motorola's standard-essential patent litigation in mind, said Agé.
Microsoft's hurried decision to withdraw its entire distribution center from Germany shows a possible consequence of this double-edged sword: companies pull out so that patent-friendly courts can't be turned against them. As patent litigation balloons, and more cases head to Germany, other foreign companies may come to the same conclusion as Microsoft, and start taking the same defensive precautions. In which case, Germany will find that far from attracting foreign investors, its patent-friendly courts are actually driving them away.
by Mike Masnick
Wed, Jun 29th 2011 4:30pm
from the alert-the-UN dept
by Mike Masnick
Tue, May 24th 2011 11:13am
Insanity Rules: UK Judge Says Mass Revealing Of Ryan Giggs Name Means Injunction Is Even More Necessary
from the wtf? dept
Except, apparently, to UK judges.
Glyn Moody directs our attention to the latest ruling from the judge concerning that injunction, which is just three paragraphs of stunning inanity, arguing that the widespread knowledge of Gigg's situation is only further evidence of the need for the injunction, to prevent "harassment." Here's the entire ruling:
Mr Justice Tugendhat :Yes, read this again: "The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection." There seems to be a ridiculous level of cognitive dissonance from "Mr Justice Tugendhat" who doesn't seem to recognize that the only reason why Giggs has been named so widely is because of the ridiculous injunction. If such an injunction had never been issued, then no such "harassment" would have occurred. And, is it really "harassment" to have someone accurate report something you did?
At about 1430 this afternoon Eady refused NGN's application to remove the anonymity he had granted to the claimant on 20 April. He said at para 23 ( EWHC 1326 (QB)) that "It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion". Intrusion in this sense includes harassment.
Very shortly afterwards a name was mentioned by Mr Hemming MP in the House of Commons in the course of a question which was interrupted by the Speaker. On that basis NGN asked me to hear a further application shortly after 5pm for the anonymity of the claimant to be removed. As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.
It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.
by Mike Masnick
Wed, Apr 27th 2011 1:37am
from the disgrace dept
Mr Hislop, who has twice challenged Mr Marr's super-injunction, said: "As a leading BBC interviewer who is asking politicians about failures in judgment, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist.
by Mike Masnick
Fri, Apr 1st 2011 1:05am
Bizarre UK Free Speech Ban Bars People From Telling Anyone -- Including Elected Officials & Lawyers -- About Potential Toxic Chemicals
from the say-what-now dept
with "members of Parliament, journalists and lawyers", along with the US coastguard and any ship owners, and also forbids any speculation linking chemicals in the paint with the illness of any individuals.I'm trying to figure out how this could possibly make sense in a country that has even marginal respect for free speech. Even worse, it appears that the individual that this hyperinjunction was targeted at later got in trouble for daring to talk to a lawyer about the case. What kind of country allows such a ridiculous suppression of basic rights?
by Mike Masnick
Wed, Mar 30th 2011 9:59pm
from the mr-z,-who-are-you? dept
by Mike Masnick
Tue, Feb 1st 2011 8:07am
from the ordering-the-impossible dept
I'm still waiting for someone to explain how all of that makes any sense.
However, making the scenario even more ridiculous are the details that the judge put into the temporary restraining order. Not only is Hotz supposed to shut up, but he's also been told to turn over basically all of his computing equipment that might have included some or all of this code. As his lawyer notes, the code itself is less than 100 kb of data. It seems pretty silly to force him to turn over all of his computers and storage -- including terabytes of data -- over one little crack.
Furthermore, the judge has ordered Hotz to "retrieve the code" that has been distributed. Yes, think about that for a second. Retrieve the code. As if it were a dog that went out for a saunter. You don't "retrieve" code once it's out there on the internet. It doesn't go away. You would think that anyone alive during the whole AACS debacle would recognize the pointlessness of trying to suppress released code that is already of great public interest.
It's scenarios like these that make me wonder what the judges who make such orders (and the politicians who make such laws) are thinking (if they're thinking) when they do so. They're trying to legislate or order the impossible, and it doesn't increase respect for the law. It does exactly the opposite. When the rules are completely ridiculous and try to order the impossible, all you do is end up having everyone mock our laws and our judicial system, while doing absolutely nothing to respond to the underlying legal issues.