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Against Monopoly

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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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(Private) Big Brother Trolls the Internet

IP Bots roam the Internet searching for malfeasance. Just imagine if such efforts were directed for social goods. Delaney, Kevin J. 2006. "Copyright Tool Will Scan Web For Violations." Wall Street Journal (18 December): p. B 1. "Privately held Attributor Corp. of Redwood City, Calif., has begun testing a system to scan the billions of pages on the Web for clients' audio, video, images and text -- potentially making it easier for owners to request that Web sites take content down or provide payment for its use. The start-up, which was founded last year and has been in "stealth" mode, is emerging into the public eye today, at a time when some media and entertainment companies' frustration with difficulties identifying infringing uses of their content online is increasing. The problem has intensified with the proliferation and increasing usage of sites such as Google Inc.'s YouTube, which lets consumers post video clips."

Academic Journal Pricing

Elsevier has made a fortune with excessive costs for its journals. Here is a protest about its envolvement in the arms trade link here

From time to time, a few people take actions about excessive journal prices. Here is one example.

Shapiro, Gary. 2006. A Rebellion Erupts Over Journals of Academia. New York Sun (26 October).

The nine members of the editorial board of the Oxford University-based mathematics journal Topology have signed a letter expressing their intention to resign on December 31. They cited the price of the journal as well as the general pricing policies of their publisher, Elsevier, as having "a significant and damaging effect on Topology's reputation in the mathematical research community".

But according to Elsevier's Web site, in 2007 the cost of a single year (six issues) of Topology, in all countries except Europe and Japan, will be $100 for individuals and $1,665 for institutions.

Founded through the vision of the Oxford topologist J.H.C. Whitehead in mid-century, Topology has an "illustrious history" with "some of the greatest names of 20th century mathematics" among its editorial and honorary advisory editorial board members, the editors wrote in their resignation letter, dated August 10. "Elsevier's policies towards the publication of mathematics research have undermined this legacy".

Board resignations have occurred at other Elsevier publications, such as the Journal of Logic Programming and the Journal of Algorithms, and also at a variety of other publishers such as Kluwer and Taylor and Francis." "One editor of Topology, John Roe, whose specialty is the relation between geometry and differential equations, said the rising cost of journals has concerned academics, not just mathematicians, for a long time." "To those who favor free online access to scholarship, mass resignations of editors are "declarations of independence," a research professor of philosophy at Earlham College, Peter Suber, said. Usually, he said, an editorial board "has a long track record of failed negotiations with their publisher. The typical scenario is the editors resign, form a new journal at a lower price, and the old journal hires new editors".

A Lehigh University mathematics professor, Donald Davis, who moderates an online algebraic topology discussion list, said, "University library budgets are no longer adequate to subscribe to all the journals they used to." The Head Librarian of the Courant Institute of Mathematical Sciences Library at New York University, Carol Hutchins, said, "The degree of choice is shrinking" and cited reasons such as the consolidation of publishing firms.

"Elsevier's prices are very high," said an emerita mathematics professor at Barnard College, Joan Birman, who resigned a few years ago from the board of an Elsevier journal, Topology and Its Applications. She said her feeling was, "We do the work, we check each other, we referee the articles, edit and typeset them and send them to the publisher, which slaps them between two covers and charges a huge amount".

A professor at New York University, Sylvain Cappell, who is an editor of Communications on Pure and Applied Mathematics, published by John Wiley & Sons with the Courant Institute, said in addition to bundled subscriptions, journals have complex subsidiary rights and other concerns: "You would need a staff as large as the publishing houses to keep track of that".

Oracle, Red Hat, and Open Source

It appears that Red Hat stock is in freefall now that Oracle announced that it would offer identical services at 50% the cost. I don't know enough to understand how much Red Hat contributes to the open source movement, but I am suspicious that anything good can come from Red Hat tactic.

I await enlightenment for more informed sources.

At Last a Strong Democratic Foreign Policy Initiative

Okay. It's not about ending the invasion of Iraq, but at least they're standing up for strong American values. You see, the president is not doing enough to help business. The United States has a serious trade deficit and the solution is -- well maybe it's not a solution, but it's the Democratic policy -- stronger intellectual property enforcement. Here is what Nancy Pelosi, the radical congressman from San Francisco says in challenging the weak-kneed policies of President Bush:

"The President's failed economic policies have resulted in another month of record trade deficits, once again highlighting the need for a new direction," said House Democratic Leader Nancy Pelosi. "We must pursue an aggressive trade enforcement agenda so that U.S. businesses and workers do not pay the price for countries that refuse to play by the rules." link to the "Intellectual Property Abuses" press release here

A Texas Tale of Intellectual Property Litigation (A Watering Hole Patent Trolls)

The New York Times has a fascinating article about Marshall, Texas, which seems to be a prime location for venue-shopping patent trolls. Your are a couple paragraphs from the article. Then I will make the connection with Texas Instruments, by providing an extract from my book, Steal This Idea.

Creswell, Julie. 2006. "So Small a Town, So Many Patent Suits." New York Times (24 September). "In Marshall, an oft-told joke is that the passage of tort reform was when many local lawyers made the trip from P.I. to I.P. -- that is, they moved out of personal injury and into intellectual property." "The testing of Marshall as a patent battleground began nearly two decades ago, when Texas Instruments, which has its headquarters in Dallas, embarked on an aggressive strategy to make rivals license its patents. If a company would not capitulate or at least negotiate, a Texas Instruments team of lawyers would drag it to court -- increasingly, down the road to the uncluttered courtrooms of Marshall."

"What's behind the rush to file patent lawsuits here? A combination of quick trials and plaintiff-friendly juries, many lawyers say. Patent cases are heard faster in Marshall than in many other courts [a quirk of a local judge, sort of a speed trap for intellectual property]. And while only a small number of cases make it to trial -- roughly 5 percent -- patent holders win 78 percent of the time, compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation."

Here's the extract. Notice the connection with Texas Instruments:

The history of the semiconductor industry exemplifies this trend toward changing the legal structure to aid firms in gaining a competitive advantage from intellectual property rights rather than from developing an edge in productive capabilities. As late as 1981, Roger S. Borovoy, vice-president and chief counsel for Intel Corporation, declared, "In the electronics industry, patents are of no value whatsoever in spurring research and development" (Anon. 1981). A recent study published by the Philadelphia branch of the Federal Reserve System describes the dramatic transition that came soon after Mr. Borovoy's evaluation of the importance of the patent system to his industry: Within the U.S. semiconductor industry, reverse-engineering was a well-established practice. But by the late 1970s, American firms objected to similar behavior by Japanese firms when they began to increase their market share in the more standardized products, such as computer memory chips. The level of competition eventually became so intense that, by the mid 1980s, most American companies abandoned these segments entirely. When it became clear they could no longer dominate Japanese firms on the basis of production technology alone, American firms attempted to consolidate their comparative advantage in research and development. To do this, they would have to find ways of reducing their competitors' ability to reverse-engineer their products. To that end, American companies began to lobby Congress to increase intellectual property protection for their semiconductor designs. In 1984, Congress created a new form of intellectual property right, called mask rights, especially tailored to address the needs articulated by the industry. [Hunt 1999, pp. 19-20] During this period, both Texas Instruments and National Semiconductor were both tottering on the verge of bankruptcy. Irving Rappaport, former vice-president and associate general counsel for intellectual property at National Semiconductor recalled: 'I'm not exaggerating when I tell you that National Semiconductor was only weeks away from bankruptcy in late 1990 .... All the papers had been signed before it was decided to continue the business and give licensing a more aggressive push. And without a doubt, patent fees bought us valuable time in which to complete our restructuring process. For a while there, in fact, three-quarters of our revenues came from patent licenses." [Rivette and Kline 2000, pp. 125-26] Texas Instruments struck first. Typically license fees ran about 1 percent of revenues. In 1987, Texas Instruments raised its royalties on chips to 5 percent (Dwyer et al 1989, p. 79). The company filed a suit against one Korean and eight Japanese semiconductor companies, accusing them of infringing semiconductor patents. The settlements yielded the company more than $600 million in payments, according to a 1990 report. The company became so aggressive in seeking royalties that by 1992 it earned $391 million in royalties, compared to an operating income of only $274 million (Warshofsky 1994, p. 111). In effect, these companies are beginning to transform the semiconductor industry from a manufacturing industry to a service industry, just as the postindustrial utopians would have them do it. According to one industry insider, James Koford of LSI Logic, "Silicon Valley and Route 128 are worlds of intellectual property, not capital equipment and production. Most of the employees of U.S. high technology live in southeast Asia" (cited in Kenney and Florida 1990, p. 237).

That ends the extract.

Finally, the article has a statement from the chief patent counsel for Time Warner, complaining about the expense of intellectual property litigation. Yeah. Right. Time Warner wants to cut back on intellectual property litigation.

"Companies spent 32 percent more on outside counsel for intellectual property litigation in 2003 than in the previous year, Chuck Fish, the chief patent counsel for Time Warner, told the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property earlier this year. Spending for all other litigation rose a mere 1 percent during that time, Mr. Fish said."

A Texas Tale of Intellectual Property Litigation (A Watering Hole Patent Trolls)

The New York Times has a fascinating article about Marshall, Texas, which seems to be a prime location for venue-shopping patent trolls. Your are a couple paragraphs from the article. Then I will make the connection with Texas Instruments, by providing an extract from my book, Steal This Idea.

Creswell, Julie. 2006. "So Small a Town, So Many Patent Suits." New York Times (24 September). "In Marshall, an oft-told joke is that the passage of tort reform was when many local lawyers made the trip from P.I. to I.P. -- that is, they moved out of personal injury and into intellectual property." "The testing of Marshall as a patent battleground began nearly two decades ago, when Texas Instruments, which has its headquarters in Dallas, embarked on an aggressive strategy to make rivals license its patents. If a company would not capitulate or at least negotiate, a Texas Instruments team of lawyers would drag it to court -- increasingly, down the road to the uncluttered courtrooms of Marshall."

"What's behind the rush to file patent lawsuits here? A combination of quick trials and plaintiff-friendly juries, many lawyers say. Patent cases are heard faster in Marshall than in many other courts [a quirk of a local judge, sort of a speed trap for intellectual property]. And while only a small number of cases make it to trial -- roughly 5 percent -- patent holders win 78 percent of the time, compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation."

Here's the extract. Notice the connection with Texas Instruments:

The history of the semiconductor industry exemplifies this trend toward changing the legal structure to aid firms in gaining a competitive advantage from intellectual property rights rather than from developing an edge in productive capabilities. As late as 1981, Roger S. Borovoy, vice-president and chief counsel for Intel Corporation, declared, "In the electronics industry, patents are of no value whatsoever in spurring research and development" (Anon. 1981). A recent study published by the Philadelphia branch of the Federal Reserve System describes the dramatic transition that came soon after Mr. Borovoy's evaluation of the importance of the patent system to his industry: Within the U.S. semiconductor industry, reverse-engineering was a well-established practice. But by the late 1970s, American firms objected to similar behavior by Japanese firms when they began to increase their market share in the more standardized products, such as computer memory chips. The level of competition eventually became so intense that, by the mid 1980s, most American companies abandoned these segments entirely. When it became clear they could no longer dominate Japanese firms on the basis of production technology alone, American firms attempted to consolidate their comparative advantage in research and development. To do this, they would have to find ways of reducing their competitors' ability to reverse-engineer their products. To that end, American companies began to lobby Congress to increase intellectual property protection for their semiconductor designs. In 1984, Congress created a new form of intellectual property right, called mask rights, especially tailored to address the needs articulated by the industry. [Hunt 1999, pp. 19-20] During this period, both Texas Instruments and National Semiconductor were both tottering on the verge of bankruptcy. Irving Rappaport, former vice-president and associate general counsel for intellectual property at National Semiconductor recalled: 'I'm not exaggerating when I tell you that National Semiconductor was only weeks away from bankruptcy in late 1990 .... All the papers had been signed before it was decided to continue the business and give licensing a more aggressive push. And without a doubt, patent fees bought us valuable time in which to complete our restructuring process. For a while there, in fact, three-quarters of our revenues came from patent licenses." [Rivette and Kline 2000, pp. 125-26] Texas Instruments struck first. Typically license fees ran about 1 percent of revenues. In 1987, Texas Instruments raised its royalties on chips to 5 percent (Dwyer et al 1989, p. 79). The company filed a suit against one Korean and eight Japanese semiconductor companies, accusing them of infringing semiconductor patents. The settlements yielded the company more than $600 million in payments, according to a 1990 report. The company became so aggressive in seeking royalties that by 1992 it earned $391 million in royalties, compared to an operating income of only $274 million (Warshofsky 1994, p. 111). In effect, these companies are beginning to transform the semiconductor industry from a manufacturing industry to a service industry, just as the postindustrial utopians would have them do it. According to one industry insider, James Koford of LSI Logic, "Silicon Valley and Route 128 are worlds of intellectual property, not capital equipment and production. Most of the employees of U.S. high technology live in southeast Asia" (cited in Kenney and Florida 1990, p. 237).

That ends the extract.

Finally, the article has a statement from the chief patent counsel for Time Warner, complaining about the expense of intellectual property litigation. Yeah. Right. Time Warner wants to cut back on intellectual property litigation.

"Companies spent 32 percent more on outside counsel for intellectual property litigation in 2003 than in the previous year, Chuck Fish, the chief patent counsel for Time Warner, told the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property earlier this year. Spending for all other litigation rose a mere 1 percent during that time, Mr. Fish said."

A Toxic Stew: Intellectual Property, Embroidering Grannies, Terrorism, and Invasion of Privacy

Searcey, Dionne. 2006. "Sewing and Suing Aren't a Happy Mix For Embroiderers." Wall Street Journal (14 September): p. A 1.

"Janet Ebert, a longtime embroidery hobbyist, logged onto the Internet last year and found images of flowers and cuddly animals. Altering them with special software on her home computer, she created versions of the designs that she stitched on quilts for her five grandchildren. She used a computerized Singer embroidery machine, and sold some of the designs online for about $2 each. A few weeks later, a courier appeared on Ms. Ebert's front porch in House Springs, Mo., with legal papers informing her that she was being sued. The complaint said she had violated copyright law and that some of the designs she had sold belonged to embroidery company Action Tapes Inc., in Dallas." "Sewing and design companies are engaging in piracy disputes similar to those waged by the music, movie and fashion businesses. Some buyers and sellers of designs are confused about the copyright issues buzzing around the honey bees and sunsets they stitch on quilts and clothing."

"Embroiderers used to buy patterns of angels, flowers or other designs published by sewing companies at five-and-dime shops. They would iron the outlines of the designs onto fabric and stitch around them by hand, creating unique, colorful patches on clothing and blankets. Today, many buy digital forms of the designs from sewing company Web sites that offer downloads or disks. The designs are then executed by computerized sewing machines, costing as much as $7,000, that sew the images onto fabric."

"Fed up with such practices, the Embroidery Software Protection Coalition, a small group of sewing companies including Action Tapes, Great Notions Inc., Pfaff American Sales and others, aggressively began pursuing legal action against hundreds of embroidery buffs. Nearly 1,500 have been sent menacing letters on stationery stamped with the coalition's logo -- a stitched-looking letter "C" with a needle and thread attached -- that threaten them with steep fines and court judgments for buying counterfeit embroidery designs. Some of the letters tell the buyers the coalition will back off any legal action if they pay fees for their "past wrongful conduct"."

"Dozens of embroiderers took to online sewing forums to anonymously complain about the coalition's efforts, accusing the coalition of shaking down innocent sewers. In turn, the coalition in June sent a subpoena to Yahoo Inc., which hosts one embroidery forum, to find the identities of sewers such as "suelikessewingtoo" and "nanaanniesews" so it can consider suing them for defamation, according to the coalition."

"In its legal filings, it likened some of the stitchers' online screeds to "terrorist activities" and accuses them of posting slanderous statements "that marched across the Internet bulletin boards and chat groups similar to Hitler's march across Europe"."

"Gary Gardner, president of the coalition, says his group sometimes has no choice but to get tough, even with the little old ladies everyone agrees constitute the largest demographic of embroiderers. "Although they're a grandma, they're not a nice grandma," Mr. Gardner says. "Some of them are outright vicious, even when we point out to them what they're doing is illegal"." "The coalition has a team of investigators who troll online auctioneers such as eBay for obvious counterfeiters offering batches of thousands of designs for low prices."

"When the companies catch counterfeiters, some hand over names of their buyers as part of a legal settlement. In June, Sue Schultz, an embroiderer in Florida, received a letter from the coalition telling her some designs of trucks and cars her husband purchased for her in December 2005 were counterfeit. "We were shocked," Ms. Schultz says. "My stomach was completely upset." When she phoned the coalition, she says, lawyers told her to send a $300 check to make amends. The coalition acknowledges that it sometimes resorts to such demands. Unsure of the legitimacy of the operation, Ms. Schultz did nothing, though she says she now buys designs exclusively from established sellers." "Ms. Schultz and others have complained on Internet forums about the letters that they say amount to a shakedown. Two of them have enlisted the help of an Internet privacy group called the Electronic Frontier Foundation to quash the subpoena sent to Yahoo, aiming to protect anonymity online and citing First Amendment concerns."

"The coalition has since withdrawn the subpoena, but attorney Carole Faulkner says she is working on a new, narrower subpoena and still has plans to sue some forum members for defamation. Corynne McSherry, an attorney for the Electronic Frontier Foundation, says the coalition's "shotgun approach is aimed not at redressing defamation, but at intimidating those who have sought to raise public awareness of its ham-fisted tactics." She says she is pleased the subpoena was withdrawn. Yahoo declined to comment."

Intellectual Property -- License to Steal?

Joe Nocera wrote a fascinating story about a nasty patent suit between a patent-trolling company, whose board is chaired by none other than Paul Allen, and audible.com. The story begins:

Nocera, Joe. 2006. "Tired of Trolls, a Feisty Chief Fights Back." New York Times (16 September). "Patent disputes have become part of the dark underbelly of American business. So-called patent trolls acquire patents, often from bankrupt companies -- and often overly broad patents that should never have been issued by the United States Patent and Trademark Office in the first place. Instead of using them to build a commercial product, they extract licensing fees from companies that are making and selling real products. As The New Jersey Law Journal put it not long ago, "They exist solely to exact a tax"." "The deck is stacked against target companies, even when their product is not infringing. Patent litigation is expensive, and the judicial system tends to be sympathetic to the patent holder. So companies usually come to the obvious conclusion: it makes more sense to pay than to fight. For its part, the patent troll often prices the licensing fee below the cost of litigation, to encourage such behavior." Abuible refuses to settle, spends a million dollars rather than pay the demanded $300,000, only to find out the troll company does not even have legitimate ownership of the patent. "After a year of legal wrangling, Digeo dropped its price. A clearly frustrated Mr. Blaisdell wrote an astonishing e-mail message in May 2006 to Audible's internal lawyers, saying he was "perplexed as to why Audible has not taken Digeo up on its offer to settle for $300K." After all, he pointed out, that was far less than the "high legal fees" Audible was paying. He added, "Surely you understand that the prospect of convincing a Jury that Audible doesn't infringe or that the Patent is invalid is an expensive one." Digeo may or may not be a patent troll, but rarely has the economics of patent trolling been so baldly stated." "As it turns out, Digeo did not have the complete ownership of the patent that it thought it had. Documents that had been turned over to Digeo when it bought the patent showed that Edward Chang, one of the four co-inventors, had died, and that another -- his brother -- had assigned the rights to the patent to the company that later sold the `823 to Digeo." "Edward Chang, however, was very much alive, and his brother had never assigned the rights to anyone. The documents had been forged -- though it's not yet known by whom. The forgery was discovered by Mr. Kelber, the Audible lawyer. Audible then went to Mr. Chang and got him to sell it a license for $70,000. Last month, when this new evidence was presented, a judge ruled that Digeo was entitled to no monetary damages from Audible."

Compassion of the RIAA

Walt Byers posted this to the pen-l mailing list.

The RIAA sues a miscreant for illegal downloading. The defendant dies. The compassionate RIAA asks the court to give the family 60 days to grieve, before it lowers the hammer.

Financial Patents: Is the big bang happening

Creswell, Julie. 2006. "A Wall Street Rush to Patent Profit-Making Methods." New York Times (11 August).

An intellectual property arms race is escalating on Wall Street, where financial services firms like Goldman Sachs and Citigroup are building up stockpiles of patents on processes like software-based pricing, trading and risk analysis systems and products like credit cards, exchange-traded funds and exotic derivatives.

While there have been no big clashes yet, the question is, Which firm will be the first to try to enforce its growing portfolio of patents?

Patent activity among financial services firms began to soar in the late 1990's, prompted by the boom in new technology and by the fact that banks were spending enormous sums to upgrade their in-house systems. A federal court decision in 1998 that software and business methods could be patented also fed the rush to seek patents.

The result was a virtual stampede among top financial services firms to the United States Patent and Trademark Office. In 1997, there were 927 patent applications for various methods of processing financial and management data. Last year, there were 6,226.

Perennially understaffed and now overwhelmed by the sheer volume and complexity of these "dreamed up by a rocket engineer" financial products and systems, the patent office has struggled to keep up with the flood of applications. These days, banks and other financial giants are being granted patents they applied for four or even five years ago. Last year, more than 1,000 patents for processing financial and management data were approved, up from 200 in 1997.

Goldman, viewed by many as a patent leader on Wall Street, has hundreds of patent applications in the pipeline and has received patent rights on a couple of dozen products and systems, according to its chief patent officer, John Squires. He joined Goldman in the new position in 2000 after being a patent lawyer with Allied Signal.

"I think there will be increased filings as the convergence of banking and technology is irreversible," he said. "As people spend more and more building systems and deploying technology, they're going to want to make sure they have the rights available to them."

For now, all the big firms seem to be playing nicely with one another. Many lawyers involved in patenting systems and products on Wall Street label the patents as defensive in nature. They say Wall Street banks are trying to patent products or software systems in an effort to protect themselves from claims or litigation brought by individuals or small companies whose primary business is holding patents -- those known to their detractors as patent trolls.

But some warn it is merely a matter of time before the patent activity turns from defensive to offensive. Wall Street firms will eventually look for ways to license the technologies or products they have patented, hoping to earn a high-margin revenue stream, or they will begin to litigate against each other, lawyers say. "Right now, people are figuring out they need some playing cards so that if someone comes to us and says 'You're infringing,' well, we have some patents and we can do a cross-licensing deal and everyone goes away," says Raymond Millien, a former patent lawyer for American Express who is now the general counsel with Ocean Tomo, a merchant bank specializing in intellectual property. "But there are going to be some companies on the Street who are going to start licensing their products and enforcing the patents to get a revenue stream from them."

No one is ruling out the possibility of a patent war between the financial titans some time down the road. It has happened before. In 1982, Merrill Lynch sued the rival brokerage firm Paine Webber, accusing it of infringing on a patent Merrill received on its cash management accounts. Eventually, the two reached a settlement. "Right now, because all of the Wall Street banks are showing record profits, there's not much incentive to sue within the club," Mr. Millien said. "But three years or so down the road, it's hard to say."

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Les patent trolls ne sont pas toujours des officines

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