01 October 2004

Naughty, Naughty, Naughty

More misbehavior around the news today, some of which has a great deal more to do with authors' rights than might be apparent at first glance.
  • The Induce Act appears to be dead in the Senate, at least until it is modified. This is important to authors because the Induce Act would essentially enshrine the concept of DRM software in criminal law, which is even worse than Chapter 12 of the Copyright Act (the anticircumvention provisions).
  • Speaking of misuse of copyright, Diebold took it in the shorts. Finally. The DMCA has a penalty for misuse of the antipiracy provisions in § 512. Diebold had sued students for publicly posting technical documents taken from its website that disclosed serious problems with its electronic voting machines. Although the judge's exclamation that "no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright" seriously overstates the law—unfortunately, a reasonable user could so infer based on the work-for-hire provisions—it's pretty clear from the factual background that this was a SLAPP action by Diebold, and that its original assertions were without merit under the DMCA (hint: was Diebold in compliance with the requirements of § 512 with its notices, leaving aside the propriety of the asserted copyright?). See also this comment at LawMeme (although asserting that the DMCA has a "rich history" is a bit much).
  • The government in a probably futile effort, intends to appeal a decision declaring significant portions of the Patriot Act unconstitutional. This is just part of a pattern that the Republican-controlled Congress, and particularly the more extreme elements thereof, trying to impose its own interpretations of existing law on the judiciary while simultaneously evading judicial review. I think Article III, § 1 is pretty darned clear on this: "The judicial Power of the United States, shall be bested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Not in the respective Judiciary Committees; not in the Attorney General; most especially, not in the Hon. James Sensenbrenner (R-WI), with his blatantly unconstitutional bill proposing to take review of the Pledge of Allegiance away from the courts.
  • I suppose I should get this month's post on goofy patent nonsense out of the way quickly so I can spend more time on goofy election nonsense. On the one hand, Microsoft's patent on the FAT file system (MS-DOS) was rightly invalidated; there's prior art going back to the file systems used on PDP-11s, among other places. On the other hand, Microsoft won one of the more-ridiculous "overextension" suits, in which an "inventor" claims certain aspects of SmartTags (MS Office) infringe on his ridiculous "method" patent. And, speaking of "method" patents that don't pass the laugh test, it appears that Sun is now trying to patent per-employee licensing schemes. Can you say "prior art"? How about "obviousness," particularly in light of insurance practices that peg premiums to the number of employees?
  • Last, in a probably long-overdue (and obviously reluctant) disciplinary action, the Tennessee Supreme Court suspended Edward Slavin (PDF, 68k) for three years for the kind of stuff to which even characters on the appalling The Practice wouldn't stoop. According to this article on the ABA website, Slavin has a pattern and practice of using personal attacks on judicial and quasijudicial officers as a means to evade unfavorable decisions and case law. This might matter to authors because Slavin claimed a First Amendment defense. The Tennessee Supreme Court reached the right result, but its analysis of the First Amendment issue leaves a bit to be desired.