Sunday, January 22, 2012

SOPA and PIPA Must Be Stopped

Congress is debating the new SOPA and PIPA legislation aimed at making it easier for the government to combat online copyright infringement. In case you live under a rock, SOPA and PIPA are the two pieces of legislation that its supporters argue would enable the government to help stop online copyright piracy, and its detractors say would amount to Internet censorship. I fall in that "detractors" category.
You have to look at legislation intended to combat crime from the worst case scenario. These laws are always abused. Show me any law ever passed to combat crime, and I will show you a law that has been abused by the government to exceed the reaches of what it was intended for. In other words, they always say "this law is only so we can go after the really bad guys" until it's passed. After that, all bets are off.
So, worst case, SOPA and PIPA allow the government not only to shut down any website that they can argue is "facilitating" infringement, they can also effectively seize the assets of those sites. Facilitating infringement? Let's think about that. Megaupload is accused of facilitating infringement. What does it mean to "facilitate" infringement? Does Comcast "facilitate" infringement by providing you access to a pirate site? Does Microsoft facilitate infringement by providing you with a free browser that you use to access that site? How far can this go? I guarantee you, if SOPA and PIPA pass, the government will start inventing ways in which companies "facilitate" infringement.
And what about the money? Isn't that really what this is all about? It has to be, because no one has ever argued that the actual master recordings of anything have ever been stolen. So, of course, SOPA and PIPA allow the government to seize all the assets of the website operators. Not just money, everything. In the Megaupload case, the government was happy to seize Kim Dotcom's shotguns and luxury cars. Here's what many media outlets are saying:
Police seize guns, millions in Megaupload case
Now think about that. That's not the media trying to spin a story is it? Police seize guns in Megaupload case. Guns? Really? Surely the media aren't trying to paint a picture of some gun-toting bandits hiding out in the woods for the first opportunity to jump out and rob you blind of your. . . . your . . .. copyrights. Really?
And also keep in mind that these things were done without SOPA or PIPA. So if the U.S. Government can already swoop in and shut down a foreign website just for "facilitating" infringement, and seize all the assets of the operators of that website, including their "guns," then why do we need SOPA and PIPA? I think they've gone too far already with the Megaupload arrests. The government certainly doesn't need more power, far from it. We need to start reigning in these drunk-with-power do-gooders and get a handle on what is really going on here.
If any area needs closer legal scrutiny, it's private lobbyists. We need to be looking much closer at the apparently improper influence that the entertainment industry has on both our lawmakers and our law enforcers. The fact that the entertainment industry can use our government as its own private law enforcement vehicle scares the shit out of me. This has got to stop.

Wednesday, January 18, 2012

Oracle Advances Software Copyrights, Drops Patent Claims Against Google

I frequently blog about the benefits of software copyrights over software patents. I've also mentioned how Oracle is leading the charge in terms of promoting its software copyrights more than its software patents. Nowhere is it more apparent that software patents are the new thing, and software patents are out, than in the Oracle v. Google case.
Oracle sued Google for allegedly violating a bunch of Oracle's software patents and also Oracle's copyrights related to the JAVA technology. Originally, it was thought the case was mostly a patent case with some copyright underpinnings. Now, it appears to be quite the opposite.
In a surprise move, Oracle seems to have whole-heartedly bought into the theory that I have been promoting for some time--that software patents are yesterday's news and software copyrights are the way forward. Oracle filed documents asking the Court to throw out Oracle's own patent infringement claims so it could move forward with the copyright case alone. It seems Oracle has recognized that the last several years of judicial activism and proposed legislative overhauls have left software patents as essentially useless anachronisms. As proof, many (most?) of the software patents that Oracle asserted against Google have already been thrown out by the U.S.P.T.O. on reexaminations initiated by Google. In other words, Oracle's patent case is disintegrating and its copyright case is gaining steam.
So why waste the money on the patent case? Why shackle your thoroughbred to a plow horse? Looks like Oracle agrees. It wants to move forward with its strong case and dismiss its patent case. This is one more example illustrating the shifting paradigm away from patents and toward copyrights as the mechanism of choice for protecting software. Will it happen overnight? Of course not. But when highly litigious (and successfully so) multi-national companies completely drop their patent cases so they can focus on their software copyright case, you have to take notice. Is this the right strategy for your business? Maybe, maybe not. But you must at least consider this as an option.

Sunday, January 15, 2012

Hana Beshara (Phara) Goes To Jail for Criticizing the Government

Hana Beshara, the self-proclaimed attractive co-founder of NinjaVideo, was recently sentenced to 22 months in jail. Now this really isn't a big surprise, given the government's fairly recent push to demonize and vilify people who push the limits of fair use online. As a copyright attorney myself, I can't really say I'm in favor of weaker copyright protection. I just wish copyright protection would be pushed harder in areas where it is more needed than in the entertainment industry.
But what makes Hana Beshara's case even more interesting is the degree to which the government is trying not only to punish her, but to silence her as well. Immediately after her sentencing, Ms. Beshara was released to go home until a bed became available at her intended prison. Makes sense, and seems like a decent thing to do. But then the government actually petitioned to send her straight to jail instead, apparently to sleep on the floor. Why, you ask?
Hana Beshara of NinjaVido sentenced to 22 months jail timeBecause she posted something on her Facebook wall! That's right, the government got pissed because Ms. Beshara posted something about being sentenced to prison and asked her followers to try and get her a modelling gig with a men's magazine, like Maxim.
Here's an actual quote of what the U.S. Government argued as grounds to rescind her freedom:
Beshara posted more than 25 additional Facebook messages, which variously criticized the government, celebrated’s copyright infringement, and sought to assemble a public relations team to engage media and documentary filmmakers to help her 'fight back' and 'change[ ] history . . . again.'
WHAT?!?!? How dare she criticize the government? How dare she attempt to assemble a public relations team? Have these people even heard of the First Amendment? When a person is convicted of a felony, they can lose certain Constitutional rights, like the Right to Bear Arms or to Assemble with other felons. But you don't lose the right to criticize the government, EVER!
Ours is a free society precisely because we never lose the right to criticize the government. I'm certainly not suggesting that we should be free to violate the copyrights of others because of this, but wait a minute. Two wrongs do not make a right. In its zeal for "complete justice," these government lawyers have allowed their perceived victory to cloud their judgment. They have put the success of their crusade above justice, and above the Constitutional rights of us all. And yes, that includes Hana Beshara. As far as I'm concerned, Hana Beshara is a political prisoner until someone can demonstrate how a Facebook posting creates a clear and present danger to anyone.

Wednesday, January 4, 2012

Software Copyrights Keep Getting Attractive

I keep advocating for the use of software copyrights to defend your software products, and it looks like that message is taking hold. I don't just mean using copyrights to prevent people from making pirate copies of your actual software. That's the easy case. I also mean in the broader sense of another developer waiting to see what software becomes popular, and then knocking it off--independently developing a clone and selling it under a different name.

That's exactly what has happened to Atari. Back in 1980, Atari offered an arcade game called Battlezone, which was very popular for its then-new wire-frame look and feel. Recently, a company called Black Powder Media released some look-alike games for iOS 5 that mimicked Atari's Battlezone game. So Atari sued for copyright infringement and had Black Powder Media's games taken out of the Apple app store.
Now I readily admit that copyright protection does not extend to ideas, concepts, or methods of operation. But still, where one company waits until a video game is popular to start selling a clone of that game, are they copying the idea of that video game or the expression of that idea? I say it's the expression itself. To conclude otherwise is basically to say that the particular look and feel of a video game has nothing to do with its popularity. All first person shooters should be equally popular. But they are not.
You can't wait until a game company, for example, stumbles on the magic look-and-feel for a winning game, and then just knock if off. I say that is exactly how conventional copyright policies apply to the new world technology.