CNET looks at Apple patent and trademark disputes through the years

A recent article on CNET.com takes a brief look back at some of the more interesting patent and trademark skirmishes Apple has been involved in through the years. Steve Jobs recently said “We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours”. As the article notes, the sentiment cuts both ways. Apple has been on the receiving end of its share of patent suits in the past.

Google alleges that Viacom uploaded content it is suing over

A post on the official YouTube blog claims that Viacom hired at least 18 marketing firms to pose as fans and upload clips to YouTube. Google also claims that Viacom itself was often unsure what content was authorized by them and “on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement”. Viacom is suing Google for failure to take adequate steps to prevent copyrighted content from be uploaded to YouTube.

MP proposes copyright levy on hard drive music players

Private Member’s Bill C-499 (introduced by Charlie Angus, NDP) proposes a change to the Copyright Act to allow fees to be levied on “audio recording devices” (“a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings”). Previous attempts to apply a levy to hard drive music players have failed because the levies only apply to “blank audio recording media“.

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Pink Floyd Wins Case And Prevents EMI From Selling Songs Individually

In a court battle with EMI, the progressive-rock band Pink Floyd fought to prevent the record company from selling single downloads on the Internet from the group’s concept albums. The court, this past Thursday, decided in favour of the British band.

At challenge was EMI’s decision to sell certain Pink Floyd songs as individual downloads, removing them from the context of their full-length albums. According to the band’s contract with EMI, the label can’t just sell any individual song it likes; Pink Floyd needs to give its permission before a track can be made available as a single. EMI claimed that this clause only referred to physical records, but the court ruled that the band’s wish to “preserve the artistic integrity of the albums” applies to digital formats as well.

The band, which sought clarification of their more than 10-year-old EMI recording contract, argued the agreement calls for albums to be sold as a whole with tracks in a specific order and not as digital singles, as they are on Apple Inc.’s online iTunes store.

“There is nothing in the terms ‘album’ or ‘record’ to suggest they apply to the physical product only,” Justice Andrew Morritt said in his judgment. The judge said the purpose of the clause in the contract, drawn up more than a decade ago, was to “preserve the artistic integrity of the albums.”

Pink Floyd alleged that EMI had allowed online downloads from the albums and parts of tracks to be used as ringtones for mobile phones. Consequently, the judge ordered EMI to pay Pink Floyd’s costs in the case, estimated at £40,000 ($61,800 Cdn), and refused the company permission to appeal.

The ruling may give the band more leverage in the future in negotiating royalties should it decide it later wants to sell its songs individually.

It should also be noted that the effect of the ruling on the level of royalties the band receives remained unclear, however, as that part of the judgment was held in secret. Lawyers said it was the first time a royalties dispute between artists and their record companies had been held in private, after EMI successfully applied for a news blackout for reasons of “commercial confidentiality.”

The decision might be considered as both a victory and a setback, depending on one’s views about creative autonomy and online content distribution.

The sale and downloading of music on a song-by-song basis might be seen as a threat to the artistic nature and quality of an album, in its entirety, as a creative form. Conversely, it can be argued that most artists do not release albums that are intended to be a start-to-finish experience of the ages. And restricting the purchase of songs to a full-album, selected-by-the-record-company single, or bust as a set of options is overly limiting in a time where the technology and delivery methods have changed significantly allowing a great degree of flexibility in distribution options to artists.

As a consumer, I must admit, it has been a long time since I have listened to an album where I liked every song. In this era of internet distribution, where artists are emerging in droves and becoming well known often before their music is picked up by a record company, music and computer savvy consumers are listening to a lot more music by a greater variety of artists, are more selective about what songs they keep in their music libraries, and are less tolerant of limitations of the ways in which they acquire songs.

The holding of this case may have interesting implications for the negotiation of contracts between artists and record labels in the future.

Microsoft Appeals Word Patent Decision and Loses

In August 2009, a US court awarded damages to i4i which claimed Microsoft had infringed its patents. The patents cover the use of XML, a mark-up language that preserves data formats across different programs.

Microsoft appealed against the court judgement that required it to pay $240m in damages. The judgement also required Microsoft to remove the i4i technology from its Office software suite and to stop selling the infringing programs. Microsoft lost the appeal.

Brazil threatens suspension of U.S. patents over trade dispute

For several years Brazil has been angered by massive subsidies that American cotton farmers have been receiving. A recent editorial in the Globe and Mail reports that Brazil, in addition to implementing punitive tariffs targeted at certain U.S. industries, is considering suspending U.S. pharmaceutical and software patents within Brazil. The article indicates that while this would be an unprecedented measure WTO rules would allow it.

EU Parliament strongly rejects ACTA provisions

The European Parliament overwhelmingly voted against the Anti-Counterfeiting Trade Agreement, striking a blow against the validity and applicability of that treaty.

Former Sun CEO on the power of a strong patent portfolio

In the wake of Apple’s suit against HTC, former Sun CEO, Jonathan Schwartz, writes in his blog about how Sun’s patent portfolio helped avoid suits by Apple and Microsoft. In both cases, Sun was able to informally settle the suits by reminding the other CEOs that Sun owns a number of patents underlying their major products. He also has some interesting remarks on the offensive use of patents in general:

But for a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace … Having watched this movie play out many times, suing a competitor typically makes them more relevant, not less. Developers I know aren’t getting less interested in Google’s Android platform, they’re getting more interested – Apple’s actions are enhancing that interest.

Apple iPhone developer contract leaks

I admit I was surprised to read the term ‘leaked’ in reference to a contract signed by over 100,000 developers, but it appears that developers have been required not to discuss the terms of the contract publicly. The Electronic Frontier Foundation secured a copy via a Freedom of Information Act request to NASA and posted it on their website. I have to question the hoops the EFF jumped through to get a copy but the contract is worth skimming.

11th Annual TIP Group Conference: Copyright and Digital Rights

In the week of March 1, the TIP Group hosted a series of panels on emerging issues concerning intellectual property and technology ranging from privacy and Facebook to open source programming. On March 4, Brian Issac (Smart & Biggar) and James Gannon (McCarthy Tétrault) were invited to speak on Copyright & Digital Rights.

Issac identified some special issues concerning copyright in digital content in general and in Canada. Generally, in contrast to “hard goods”, digital media may be copied perfectly countless times and transmitted around the world rapidly, which makes enforcing copyright in digital content more difficult. Although basic copyright law applies to digital content as to other traditional media, questions still remain as to what digital content, considering its myriad new forms, is entitled to copyright protection. For example, compilation of links and the “look and feel” of a website have not received copyright protection yet in Canada. Additionally, current Canadian case law has not yet addressed the full breadth of issues which concern copyright and digital content, e.g., in BMG v. John Doe (2005 FCA 193) the issue of whether P2P file-sharing constituted copyright infringement arose. The case was dismissed, but for lack of evidence rather than substantive issues.

Issac identified the need for legislative reform to address developing digital issues and to implement World Intellectual Property Organization (WIPO) internet treaties. He favours a sophisticated approach which would balance the rights of copyright holders and users, address issues of cost and practicality with enforcement, and allow for graduated responses and non-court resolutions to instances of infringement.

Gannon spoke about protection methods of digital content, mainly Technological Protection Measures (“TPMs”), which are technical tools which restricts copying of and access to a protected digital work, like CD keys which must be inputted to enable installation of proprietary software, like Microsoft Word. TPMs are distinct from the more ambiguous and broader Digital Rights Management (DRM) systems, with which people may be more familiar considering the Sony rootkit controversy in 2005.

Gannon addressed the benefits of TPMs, noting that TPMs enable availability of digital content because rights holders will likely make content available legitimately if they know their works can be sufficiently protected. Gannon pointed out that “[e]very major media form’s ‘online breakthrough’ only occurred once rights-holders were satisfied that their works would be protected through TPMs”, making note of iTunes (music) and Hulu and YouTube (video). Gannon also covered TPM controversies like the PC edition of the video game Assassin’s Creed II, which will require constant internet connection for authenticity validation even though the game is played offline. The inconvenience of this TPM may result in more piracy, not less as some users have said that the pirated version will be easier to use than the official.

Circumvention of TPMs is a major and widespread concern, but there are insufficient anti-circumvention laws in Canada which address both access control and copy control measures. He noted that there isn’t as much digital content available in Canada as in the US because Canada has weaker anti-circumvention laws. Canada has fallen behind other countries, like the US, EU, Australia, and Japan, in implementing its WIPO internet treaties obligations. (Gannon assembled a helpful chart comparing anti-circumvention laws of the above countries, which can be found at his blog here.)

Considering the recent Speech from the Throne included promises to “strengthen laws governing intellectual property and copyright”, a new bill addressing copyright reform may be on its way soon, as Issac and Gannon have urged. Given past incidences of misuse of TPMs or DRMs (e.g., Sony, Amazon Kindle), users’ rights need to be kept firmly in mind when drafting legislation. Indeed, there should be a state-mediated balance between the rights of users and copyright holders, but we should not forget that an even balance needs to be maintained and that, as fellow editor Eric Chamney wrote, copyright “is properly conceived of as a relationship between the author and the public and should remain so.”