Linux Defenders Battles Crappy Patents

I like the thought behind the new Linux Defenders service, which was launched this week by the Open Invention Network, Software Freedom Law Center, and Linux Foundation. It combines on one site the Peer-to-Patent and Post-Issue Peer-to-Patent projects, and will add to the mix a listing of "Defensive Publications," which presumably will describe individual inventions with some rigor and in a manner that permits patent examiners and others to rely on both the descriptions and dates of the inventions. The resulting database will be available to the public.

If this gathers some steam, it could become a valuable resource for patent professionals. Though titled "Linux Defenders," it doesn't appear to be limited to Linux-based inventions, or even open source ideas. And while it is not paying bounties, like Article One Partners, it is tapping in to the open-source ethos that may prove to be a stronger motivator for contributors than will the uncertain prospect of a future monetary reward.

The examples of Defensive Publications on the website could use some improvement. While they appear to describe how the inventions work, they lack date references, as well as links that would allow a searcher to dig deeper for original source material.

A spin-off service, called "Linux Defenders 911," offers help "[i]f your company is being victimized by any entity seeking to assert its patent portfolio against Linux." If so, you're asked to "please contact us so that we can aid you in your battle with these dark forces."

Could Baiting Infringers Create an Implied License?

TechDirt reports (via TorrentFreak) about a situation in the UK involving copyright owners that may have licensed content to a company with the understanding that the licensee would upload that content to various bit-torrent distribution networks. The licensee would then reportedly hire a law firm to send threatening letters to those who took the bait and downloaded the very torrent files that the licensee had uploaded.

If we take the report as true, then I'm wondering whether those who downloaded the files could argue that, by uploading the files to a public file distribution network, the licensee was impliedly consenting to the downloads that are the focus of the law firm's demand letters.

Seems to me this is kind of like letting your horse out of the barn and then calling the sheriff when you see a stranger in the saddle.

Thanks to Michael Scott for the tweet.

Credit Crunch-Opportunities for IP Counsel to Add Value

IP Finance has a list of five ways that the credit crunch may affect IP-related development and transactions. All of them have implications for IP counsel; ways that attorneys can help clients get their IP houses in order, so to speak.

The one that caught my eye is the first on the list: companies may turn to open source or outsourcing to help reduce software development costs.

Both routes are not without risk, of course. If the developers (whether in-house or outsourced) are using open source tools or code to create new software, the company needs to know how that choice could affect the marketability of the resulting product. Outsourcing the development requires careful planning and a strong agreement so that the client can keep control over development costs and timing. Two opportunities for IP counsel to help in ways that truly add value.

Open-Source Hardware Licenses?

Open source concepts are not only for software. Hardware designers are allowing users free rein to build and tinker with product designs, with interesting results.

From the Make Blog, via Slashdot, comes the story of Mitch Altman, inventor of one of the most useful devices known to man: the "TV-B-Gone," which is a portable device that will turn off dozens of brands of television sets from many feet away. Great if you are the type of person who likes to anonymously enrage a crowded sports bar just as that overtime field goal kick is midway to the uprights.

Altman patented his idea, but decided to make a kit available to the public and is happy to hear from those who improve his design or modify it in interesting ways.

I discussed something similar recently, in my post about Dr. Johnny Chung Lee and his Nintendo Wii controller ideas. What I haven't considered is what kind of a license would cover the intended grant of rights.

The difference between open-source software and open-source hardware lies in the nature of the rights involved. Open source software (which includes firmware) is grounded in copyright. The copyright -- and the rights associated with the copyright -- arise and exist as of the moment the software is created and fixed in some tangible medium of expression.

Rights to a device, on the other hand, are grounded in patent. The patent is a discretionary award from the sovereign, not a right that exists ab initio. While the inventor can certainly create a document that is called a "license" to a pending patent application, until that patent issues the agreement is really just a contract, enforceable only by its terms (as opposed to being enforceable by way of patent law). Once the patent issues, the license would have both contractual and patent law on its side.

Such a license could make enforcing typical open-source conditions interesting -- what is the tangible analog of freely distributing modified code? Making the modified product design freely available, while still allowing the licensee the right to make and sell the modified product at a profit? And what of the modifications made to the original product? Would the license permit the licensee to patent the improvement, but require it to license the improvement on the same terms as the original?

I'm aware that there have been a few stabs taken at creating open-source hardware licenses, but the ones that I've seen seem to be grounded in copyright -- in particular, focusing on the specifications that are being licensed as opposed to the product itself. And I'm of course aware that many physical products contain a lot of software, without which the products would not operate. So for some products, the software/firmware license may suffice. But I'd love to hear if something that considers the patent issues discussed above has been proposed.

Allez! Political Vous-do to Continue

Reports are that France's president Nicolas Sarkozy was unable to convince a French court to halt the sale of voodoo dolls bearing his image. The UK's Guardian says that the French court brushed aside the president's arguments that he owned the right to his image when it ruled that the popular kit "fell within the boundaries of 'free expression' and the 'right to humour.'" (Order one yourself via Amazon's French website.)

This calls to mind the 2004 lawsuit filed by California's governer, Arnold Schwarzenegger (actually, by Oak Productions, Inc., the company formed by Gov. Schwarzenegger that owned his publicity rights), against an Ohio company that was marketing a bobble-head doll featuring his likeness.





The suit was later amended to include claims for copyright infringement based on images that appeared on the packaging for the bobble head. That lawsuit ended in a settlement, with the defendant agreeing to modify the bobble-head (to remove the machine gun and ammunition belt) and to donate a substantial portion of the proceeds of sale to Arnold's All Stars, the governer's charity. A nice synopsis of that case is available here.


The California governer appears to have achieved better results than the French president. One reason for this could be California's very strong laws protecting the individual's right of publicity. An interview with William Gallagher, one of the attorneys for the defendants, discusses this in greater detail, and points out the continuing tension between the right of publicity and the First Amendment.


Two points: First, the California case seems to have been settled on reasonable terms given the strength of the governer's legal position. And second, you gotta love a country that recognizes the "right to humor."

Wassup? with that Obama Video

Thanks to Michael Geist for mentioning this in his blog:

You may remember the "Wassup?" Budweiser ads from some years back, which featured, well, various men screaming "wassup?" at each other. A simple yet oddly memorable ad campaign. The original cast recently reunited to film a clever two-minute video in favor of the Obama candidacy that's been viewed more than 2 million times on YouTube. As political statements go, by the way, it is extraordinarily understated.

The interesting thing is the story behind the rights to the "Wassup?" idea. Budweiser had nothing to do with the new pro-Obama video; apparently it had only licensed the rights for five years, after which they reverted to Charles Stone III, the director of the original "Wassup?" commercial. You can read more about that in Burt Helm's "Brand New Day" blog for Business Week here.

There are two takeaway points here: First, where entertainment is concerned, much is recycled to take advantage of people's familiarity with the original. Stone was smart (or maybe just lucky) because he can now use the same idea to bring his message to millions, building on the foundation of consumer familiarity that Budweiser paid for. Second, this serves as a reminder to consider carefully what happens to licensed IP at the end of the license term, and how long that term is going to run. Licensees, you may want an option to extend a license that is successful; and licensors, you may want the ability to renegotiate the terms in such a case.