In another example of how complex patent law has become, chip maker Qualcomm has been found to have infringed a Broadcom patent but declined to ban the sale of phones with the chips NY Times link here

The finding was made by an International Trade Commission administrative judge and is subject to review by the full commission and then by the courts. The commission, a quasi-independent federal agency with power over imports, is not likely to make a final decision until February.

The finding is adverse to Qualcomm on some claims of one Broadcom patent for wireless chips, but not on two other patents at issue in the case.

This case again raises doubts in my mind about the patent system. The legal findings seem like hair splitting when “some claims” [but not all?] about one patent are found to infringe but not on claims arising from two other patents. Given that a final determination may be years away, any phone maker will shy away from taking a risk on these Qualcomm chips which are thus faced with being shut out of the US market. One must wonder about how technically qualified the judges are and the money spent on the litigation, as well as the loss to consumers.

Microsoft has announced new controls to reduce piracy with its new operating system, Vista, due out early next year (link here or here).

The plan is to make some features inaccessible unless the copy is proved not to be pirated.

I speculate that pirated software has become a significant drain on Microsoft earnings. It was willing to pay that cost as long as its sales were growing rapidly and in order to establish itself as the dominant operating system around the world. But having done so in big markets like China and India where the market size is no longer growing so fast, and facing increasing competition from free operating systems like Linux, its profit maximizing strategy has changed.

Security software vendor Symantec Corp. has accused Microsoft of abusing its monopoly in deciding which security products can run on its upcoming operating system, Vista. It said Microsoft Corp., which started selling its own security products in May, is deliberately withholding information needed to develop products that work on its new and almost certainly dominant operating system (link here).

While Symantec hasn't filed a formal complaint, it said it is going public to pressure Microsoft to release software development kits that would allow rival products to work with Vista, like a "dashboard designed to show what protection programs are switched on."

European antitrust regulators previously warned Microsoft not to shut out rivals in the security software market as it builds more security into Vista. Symantec said it had faced similar problems with the Windows XP Firewall but Microsoft finally backed down. It believes Microsoft has stopped co-operating with vendors after it entered the security market with its anti-virus and firewall product OneCare.

In a case similar to that of Limewire reported below, Streamcast, a distributor of software to share files, was found by a court to be guilty of “encouraging computer users to share music, movies and other copyright works without permission (link here).

The case, brought by members of the Hollywood movie studios, record companies and music publishers, had been to the Supreme Court and was sent back to the lower court for further review. The judge's “summary judgement” seems pretty conclusive, unless Streamcast follows the model suggested by Limewire to try to work out a deal by which it can permit file sharing only if the file does not involve copyrighted material.

In response to the Recording Industry Association of America's lawsuit against it last month, the LimeWire file-sharing company filed a counterclaim this week. It charges association members with "anticompetitive practices, restraint of trade, tortuous interference and other claims (info.riaalawsuits.us)."

The New York Times article (link here) cites the RIAA claims but also spells out LimeWire's that the association has refused to work with LimeWire to allow sharing of noncopyrighted files and to send users who wanted copyrighted works to legal sites like iTunes. Instead, it wants Limewire and any other file sharers to partner with iMesh, which Limewire suggests, is controlled by the RIAA members. “LimeWire cites the recording industry's relationship with iMesh, a file-sharing service it sued, but which is now essentially working at the industry's behest, operating a fee-based downloading service.”

Yahoo reports (link here) that the World Association of Newspapers is spearheading an initiative to create the “Automated Content Access Protocol” and enforce the terms under which search engines access on line and printed content. Newspapers and magazines are said to be particularly concerned about the loss of income to the internet, either from subscriptions or advertising.

"What is required is a standardized way of describing the permissions which apply to a Web site or Web page so that it can be decoded by a dumb machine without the help of an expensive lawyer."

"In one example of how ACAP would work, a newspaper publisher could grant search engines permission to index its site, but specify that only select ones display articles for a limited time after paying a royalty."

The dilemma for ACAP's members is that they benefit from search engines which create traffic to their sites. The solution for some has been to deny access to whole articles unless a fee is paid or the reader is also a subscriber.

A work in progress.

The Washington Post reports that Oprah Winfrey's lawyers are threatening to sue retired school teacher Patrick Crowe for copyright and trademark infringements because he uses her picture in his website running her for president (link here).

At one level, this is silly. But it does raise a serious question. Does she own the copyright on her image? I don't believe I own mine or you, yours. She is a public figure. Paparazzi take and sell photos of celebrities all the time. The lawyers may rather believe they can scare Crowe into taking down the picture, using the threat of big legal costs.

The New York Times carries this brief but laughable story asserting the sculptor's intellectual property rights extending to pictures of one of his statues (link here). How far can this go? Or is it just for publicity?

“Sculptor Files Lawsuit Against Wal-Mart The sculptor who created a 7,000-pound charging bull sculpture that has become a favorite tourist photo stop at the foot of Broadway has filed suit in federal court in Manhattan against Wal-Mart, complaining that it is selling lithographs of his work without his permission. Arturo Di Modica, who made the sculpture with his own money as a tribute to America's rebound from the 1987 stock market crash, also sued several other companies for what he described as unauthorized use of his work, including North Fork Bank, which has used an image of the bull in a television advertising campaign, the lawsuit said. In the dead of the night in December 1989, Mr. Di Modica used a truck and crane to bequeath the fierce-looking sculpture illegally to the Wall Street area, plunking it down near the New York Stock Exchange. It was hauled away but was later returned by the city's Parks Department and installed in nearby Bowling Green, where it has remained. In 1998 Mr. Di Modica registered the bull with the United States Copyright Office. For many years he has sought to recoup his costs for the work by selling it to someone who will agree to leave it where it now stands. John Simley, a spokesman for Wal-Mart, said the company had not yet been served with papers in the case and would wait to comment. RANDY KENNEDY”

In a curious claim of violation of intellectual property rights, students at a McLean Virginia high school say that their essays are submitted to a company, Turnitin, to compare against a 22 million document database for plagiarism. The essays are then added to the company's database to compare to new essays, giving rise to the claim of violation (Washington post - link here).

It looks as if the students will lose, as the school with the protesting students is requiring them to surrender their claim in order to receive a grade.

Some legal minds are quoted as supporting this student view. That suggests how far claims of property can be stretched.

The Economist has a nice story on changes in Europes financial markets (link here). In essence, the Markets in Financial Instruments Directive will create a single EU-wide trading place in stocks and other financial instruments. It requires the member states to harmonize their laws and allow qualified firms in one EU member state to compete in all the others. It will also promote greater transparency and allow the use of off-exchange trading. The deadline for the new individual-state enabling legislation is the new year, but it is doubtful whether all will make it.

Another step on the way to a more competitive world market in financial instruments