Author: bradevanrosen

“Memory Cream” – by “Daniel S”

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“Memory Cream” is a short animation done through collage that explores the idea of imitation through memes.

Memes, for Richard Dawkins (who coined the term), are much more than videos of Keyboard Cat, they are bits of information that survive through imitation and make up what we call “Culture.”

The story imagines the psycho-somatic effects that certain Youtube videos would have on subjects, supposing they applied a “Memory Cream”* which would allow them to mutate (evolve), freely, rapidly. (“all life evolves by the differential survival or replicating entities”). This “evolution” of language and behavior is assumed to be illegal and dangerous for the institutions of Copyright because it builds off, maybe too overtly, from pre-existing culture.

Several instances of “memes” are explored: the almost subconscious repetition of a catchy tune**, the popular “flames of hell” of certain religions, identification and imitation of the Popstar, the origin of fashions, sexual and cultural attitudes learned from transgressive stars (Marlene Dietrich in this case) and the machinery of advertisement and “mass-media.”

It was inspired by Hannah Höch (a pioneer of remix culture), the Cyborg Manifesto, and Carnivore Plants.

 

* “We need a name for the new replicator, a noun that conveys the idea of a unit of cultural transmission, or a unit of imitation. `Mimeme’ comes from a suitable Greek root, but I want a monosyllable that sounds a bit like `gene’. I hope my classicist friends will forgive me if I abbreviate mimeme to meme.(2) If it is any consolation, it could alternatively be thought of as being related to `memory’, or to the French word même. It should be pronounced to rhyme with `cream’.” (Dawkins)
** “But occasionally Jenkins was privileged to witness the `invention’ of a new song, which occurred by a mistake in the imitation of an old one. He writes: `New song forms have been shown to arise variously by change of notes and the combination of parts of other existing songs … The appearance of the new form was an abrupt event and the product was quite stable over a period of years. Further, in a number of cases the variant was transmitted accurately in its new form to younger recruits so that a recognizably coherent group of like singers developed.’ Jenkins refers to the origins of new songs as `cultural mutations’.” (idem.)

Drug Patents & Patent Pools – by “Daniel S”

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The deep issues of the Patent system are clearest, perhaps, in the realm of chemical drugs. While pharmaceutical companies are few and require great funding (the main defense of drug patents is related to the high cost of drug research and development), they still operate as multinational businesses. Notice both words: multinational businesses, meaning that they seek to minimize their expenditures and maximize their profits on a worldwide level. But the inequality between the First World and the Developing World is terrifyingly deep (and getting deeper) and five thousand dollars needed for a year of HIV medication is a number that doesn’t mean the same in San Francisco as in the Sub-Saharan Africa. In trying to define quality of life, one often speaks of needs, and there should certainly be a line drawn between consumer products and human needs. The idea of patent pools has been forwarded as a solution to the inequality of consumption. Patent pools assemble the research of “originator” companies and allow smaller pharmaceutical companies to produce their drugs and sell them at lower costs while still paying royalties to the originator. Ideally, this means that prices vary according from country to country (situation to situation), which is an adjustment to, if not the Law, the markets and situations of specific places.

Fragmentr – Collaborative Image Remixing – by “Ryan W”

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Fragmentr is a collaborative image remixing tool. Users can upload images to the active fragmentation which displays the most recent 5 images. The images are masked into 30 different fragments and shuffled at random. At regular intervals the site generates an archive of the fragmentations that form a visual blog.

Fragmentr beta is open to the public, and welcomes interesting images from your collections.

Fragmentr.com

Note: Fragmentr uses Webkit CSS which is only supported by Chrome and Safari browsers.

No More Statutory Damages = No More Copyright Problems? – by “Max C.”

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From an HLS 3L, Jason Harrow:

[I]t became clear to me that the one change in the law that will solve the most problems in the simplest way is reform of statutory damages…

Here’s the current scheme in a nutshell. The Copyright Act has two ways that plaintiffs can recover damages in a case of infringement. The first way is the way plaintiffs recover in almost every other civil case: a copyright holder can recover his actual damages and lost profits. But there is also a unique second measure of damages that plaintiffs can recover instead: something called “statutory damages” that can range from $750 to $150,000 per work infringed, constrained only by what a judge or jury “considers just.” There are currently several major fights about just how far such damages can go, like whether you can recover over $600,000 against a regular filesharer who earned no profits and caused no measurable harm, or whether you can recover damages that run into the trillions against the operator of LimeWire. But even if there are some limits in the most extreme cases, the threat of astronomical damages, even when a copyright holder has not shown that infringement has caused him any harm at all, is a very scary prospect.

Last week, Professor Stark asked us to share our thoughts on the single thing we’d most like to see fixed in intellectual property— and I don’t think any of us suggested this one. It seems pretty reasonable from an infringer’s point of view (read Jason’s full post to see the list of problems it solves), but pretty unfavorable to a license holder. It places a heavy burden on the license holder to go out and actually sue everyone to recoup lost profits— statutory damages both discourage infringement with a heavier penalty and provide more money to the license holder even if he or she can’t catch every infringement.

“Alternate Revenue Streams” – by “Ryan W”

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Microsoft and Barnes & Noble are dueling it out over B&Ns Nook reader which runs on Android OS. Microsoft alleges that the Nook infringes on multiple MS patents for things ranging from “tabbing through content” to “document interaction and web surfing”.  Microsoft expert Mary-Jo Foley asserts that this is a part of a larger strategy to combat Googles rising market share in the OS market. MS essentially attempted to extort exorbitant royalties from BN for the various infringing features or else face massive lawsuits.

Mike Ros at Buisness Insider points out “Android includes Linux at its core, and Microsoft established years ago that it thinks Linux infringes its patents. (That claim never been tested in court, but tons of Linux distributors have signed licensing deals anyway — which boosts Microsoft’s future claims.) Last year Microsoft began trying to strike deals with Android smartphone makers. HTC signed a deal. Motorola didn’t, and Microsoft sued.”  In effect allowing MS to profit from Android’s success.

Is this a misuse of Patent Law? Are they getting a bad rap and in fact they did innovate these features and deserve to be rightfully compensated (ie create an alternate revenue stream)? Or is Microsoft evolving to the next stage in it’s trajectory toward being the panultimate, anti-competitive patent troll?

It has been suggested that the recent House approval of the American Invents bill will generate jobs, and patent reform is a crucial part of economic recovery. The money collected by the Patent Office will be retained by the organization and allow them to expand and more quickly process patent applications. In a way this aspect of the reform does very little to address the bloody tech-giant patent wars, and in fact adopts a similar strategy to microsoft. The alternate revenue stream: Funds generated via the problematic infrastructure of our current patent system.

Patent Reform on Two Fronts – by “Bill T”

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Congress is currently on the verge of passing its most comprehensive patent reform in decades. The America Invents Act would overhaul much of the organization of the US patent system by creating a patent-specific Trial and Appeals board among other reforms. This is the back end of patent reform. Congress is seeking to adjust the principles on which the USPTO bases its practices in order to overhaul the system. While I do think the proper way of solving the problems with the Patent system is from the inside out, I personally think that the America Invents Act falls short of what needs to be done. But the back-end reform is not all that’s going on.

A front-end adjustment is also in the works. Until the cuts made in staving off a government shut-down this year, the USPTO had been expecting a sizeable increase in funding which would be used to help streamline its operations with new offices, increased personnel, and other practical reform efforts. Indeed, one major provision of the America Invents Act was to give the USPTO full autonomy over the fees it brought in, rather than divert some of it elsewhere in the budget. The $2.3 billion that the patent office was expecting, however, was cut to $2.09 billion, funds remain diverted, and many of the front-end reforms have been forced on hold. At once, Congress has sought to enact and limit patent reform. And the consequences of that limitation could be disastrous. Not only are developments like an expedited application process or a midwest satellite office held indefinitely, but hiring is frozen, overtime is eliminated, and employee training is reduced. This budget doesn’t just place an obstacle before progress in patents, it forces us to regress.

To me, this indicates an ignorance on the part of Congress of the problems of patent law. This contradictory approach to the patent system would not occur if Congressmen understood the scope of what needs to be adjusted, on both the front end and the back end.

Patent Troll Wins 5Mil from Google – by “Wesley W”

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The conclusion of a suit filed against Google in 2009 by Bedrock Computer Technologies(a company accused of being a patent troll) has been decided. The jury decided that Google’s use of the Linux kernel in its servers was infringing on a Linux patent. The court ruled that Google should pay 5 million dollars for the infingment.

This ruling is interesting because Linux is widely used in the open source community and the finding of infringement has implications for other users of open source software. The ruling could hurt Google in other patent lawsuits regarding Android software, which also makes use of the Linux kernel. Bedrock also has pending cases against Yahoo, Paypal, Myspace, Amazon and other companies. While the ruling was only for 5 million dolllars it shows that Bedrock may be successful in suing many others who use the Linux kernel. It could open the door to more software patent trolling.

The troubling thing about the ruling is that the use of the Linux kernel on Google’s servers was considered infringing. Bedrock could use this ruling as grounds to file suit against a huge number of open source users who use Linux effectively taxing anyone who uses the software. Oddly enough the patent lawyer responsible for the activities of Bedrock in this instance also works with PubPat, an organization that works against undeserved patents and bad patent policy. This is either highly ironic or a shrewd attempt to make a public example of how flawed the current patent policies are. But, as things stand now Google has been trolled to the tune of 5 million.

The docket naming other defendants in the case can be found here.

Thaler’s Right: Data Ownership – by “Max C.”

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This week’s iPhone controversy is a big deal, but it also could be a win for consumers. Normally, to find out the information about you that your carrier has already taken and is now selling to law enforcement agencies, you have to sue them in court— but with the iPhone, at least, you yourself also own a copy!

Was the iPhone location tracking file an egregious error, especially since they didn’t notify users? Probably. Will it be patched, never to be seen again in the next version of iOS? Probably. But that’s a bummer for people that like owning their own data.

Writes Richard Thaler in today’s NY Times:

If a business collects data on consumers electronically, it should provide them with a version of that data that is easy to download and export to another Web site. Think of it this way: you have lent the company your data, and you’d like a copy for your own use.

That sounds a lot like what you iPhone location file is. One of the stink bombs thrown up over this iPhone debacle is, “this information isn’t behind a firewall.” True— which means that YOU own it, instead of your phone company. Besides, lots of private information up behind a firewall just creates another juicy target for a hacker (a la Epsilon’s data breach). Are we really getting to the point where we don’t want users owning their own data because they’re so incompetent they might get hacked? Even Thaler’s semi-paternalistic book Nudge doesn’t go that far! Besides, as David Pogue points out,

The one legitimate concern, therefore, is that someone else with access to your computer could retrieve the information about your travels and see where you’ve been. Your spouse, for example. The researchers also mention “a private investigator,” but that’s a little silly. A PI is going to break into your house to inspect your iTunes backup? If your computer is that accessible, you’ve got much bigger problems.

Most likely, the only person that is really that fascinated about you is… well, you. Pogue again:

Meanwhile, accept it: Yes, Big Brother is watching you. But he’s been watching you for years, well before the iPhone log came to light, and in many more ways than you suspect.

And you know what? I’ll bet he’s bored to tears.

Going from Inquisitorial to Adversarial – by “Victor W”

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Bearing resemblance to inquisitorial systems, the present patent system lays a lot of responsibility on patent examiners who serve as the primary investigators and judges. With hundreds of thousands of applications a year, it’s no wonder patent examiners are overworked and backlogged.  It’s become a tradeoff between quality and quantity, which could be tempered by making the system to be a bit more adversarial.  Doing so would require the Patent Office to not only consider the perspective of a patent applicant, who is obviously incentivized to see the application move forward, but also consider the perspective of a highly motivated opposition. While more information may lead to better decisions, it may also require too much work.  However, several changes to the current system could be made that simultaneously improve the quality and quantity of patent examinations.

Peer to Patent was a great first step by opening up the process to public input. Outside parties could upload prior art which would invalidate frivoulous patent applications.  The next step would be to open up the process further and invite the equivalent of amicus briefs by outside parties who may have an interest in the outcome.  They could file explanations of why the patent-pending invention was obvious or somehow unqualified to be patented.  This process change would make patenting more in line with receiving other government licenses and approvals that require public hearings.

Google Patents could serve as inspiration for a web application that serves as an automatic adversary against patent applications.  The idea would be to run the claims of patent applications through Google Patent search to return the most relevant existing patents and surface possible prior art.  It could go further by searching the websites and presentations of patent filing companies to identify possible prior art.  It could also expand the search automatically to academic journals and online press.  All of this information could be compiled automatically into a succinct dossier for the patent examiner to start the examination with.

At some point, Peer to Patent could get more social by actually automatically inviting parties to oppose an application.  It could identify businesses and parties affected by a patent application by searching for related patent filers and holders.  It then would mail or email the relevant parties about the patent application and solicit opposing arguments or prior art.

Of course, all of these changes rely on valid and meaningful information being provided by opposing parties.  Requiring a nominal fee for accepting 3rd party material would help discourage frivolous information from being submitted.  Certifying information to be true under the threat of federal criminal charges of perjury will also discourage false information from being submitted.

If all these technical and procedural changes aren’t enough, a simple legal change could make a huge difference.  In actual patent lawsuits, the current legal standard for throwing out a patent is “clear and convincing” evidence that a patent is invalid.  Microsoft is currently arguing the standard should be lowered to simply a “preponderance of evidence” as is the case in civil lawsuits.  Lowering the bar would make patent lawsuits much more focused on the validity of the patents in question.  It would actually bring patents into the adversarial legal system we already have.

All in all, the patent system would have much to benefit from a progression towards a more adversarial process.  Does anyone disagree or does everyone accept my findings which are based on a cursory examination of the facts?

Victor Wong is the author of two patent applications for online advertising related technologies.