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Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
15:28 [GMT-6]
Freeny Patent Invalidated in UKThe Freeny patent (US Pat. No. 4,528,643 (09 Jul. 1985), for anyone who cares) claims to cover "A method for reproducing information in material objects utilizing information manufacturing machines located at point of sale locations." Leaving aside whether this patent fails for novelty, obviousness, lack of utility (which is where most business-method patents should fail), inequitable conduct, or just plain bad drafting apparently intended to confuse instead of disclose, the real problem with it is how it has been asserted. E-Data Corporation (the 1989 purchaser) has continued to assert that a patent that covers "…receiving the request reproduction code and the authorization code at the information manufacturing machine and reproducing in a material object the information identified by the catalog code included in the request reproduction code in response to the authorization code authorizing such reproduction" (which is merely the last of four dependent clauses) includes purchase and sale of downloadable files; of licenses to intellectual property in downloadable files; and even to "shopping cart" systems for purchase of merchandise shipped from a remote location. Fortunately, this last variation was trashed fairly early on. The first two, however, involve some other parties… and, as correct as I think the decision in their favor was in the abstract, I'm a bit discouraged to have to be on their side, as they're both copyright abusers!
The UK litigation involved Corbis and Getty, two of the major photo stock houses. (How the litigation got into the UK courts is another matter, as is the even-more-convoluted wording of the UK patent, which unfortunately does not appear to be easily accessible online without paying a fee.) E-Data sued for "violations" of the Freeny patent based on its assertions that the downloadable photo licenses available from the respective websites constitute an embodiment of the Freeny patent. Judge Arnold in the UK invalidated the patent, remarking that it "comes close to being a patent for selling information"—a concept that fails for obviousness and lack of novelty. Although the stock houses continue to emphasize their attack on the Freeny patent due to the lack of a physical delivery to a "machine"—depending upon a variety of nonintuitive meanings of "machine" invited by the poor drafting of the Freeny patent—that does not appear to be the basis for Judge Arnold's decision. Instead, he seems to have attacked the patent on the ground that it is far too broad to be enforceable.
The irony here is that Corbis, Getty, and many of the other photo stock houses continue to claim copyright in photographs that probably aren't properly copyrightable. It's one thing to claim that photographs of three-dimensional objects—such as portrait photography—are copyrightable, as photographer creativity, judgment, skill, and perception goes into making those two-dimensional representations of three-dimensional originals of value. Although this is often a close question, it's not that close (in the abstract, anyway; particularly instances may be different). It's entirely another to claim that purely reproductive photographs of two-dimensional works are independently copyrightable works, as noted in Corel v. Bridgeman. So, in this instance, I'm siding with the lesser of the evils.
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