Category: Copyright and IP

Posted on

Apple’s idea’s patenting pitch finding its way

Apple’s (wrong) idea of giving ideas a “patentable” status keeps finding its way into the media’s mind. Whether this is a direct consequence or a side effect of a spin doctor’s devised strategy, doesn’t change the fact the the more and more journalists fell into this trap.

The latest example is a Vanity Fair column that accounts for the Samsung vs Apple patent trial. At a certain point the columnist writes:

Bit by bit, the new model for a Samsung smartphone began to look-and function-just like the iPhone. Icons on the home screen had similarly rounded corners, size, and false depth created by a reflective shine across the image. The icon for the phone function went from being a drawing of a keypad to a virtually identical reproduction of the iPhone’s image of a handset. The bezel with the rounded corners, the glass spreading out across the entire face of the phone, the home button at the bottom-all of it almost the same.

While, from a patent infringement’s perspective, the similarities of the physical appearance between the devices have some merit, the fact that both phones shared similar or even the same functionality has none. You can’t protect a software functionality as such, because only the relevant source code can: this is clear for legal scholars, not so for the outsider of the legal community.

But this lack of knowledge helps planting into the people’s mind the seed of the “give-idea-a-patent tree”. Once grown into politician’s mind (notoriously not so versed in the legal subtleties), this tree will likely offspring a poisoned fruit in the form of some new (case) law that will finally give Apple what it aggressively looks for: power over thought.

Posted on

Apple’s disturbing notion of “intellectual property”

According to MacRumors, Apple commented the favourable trial verdict in the case against Samsung by stating:

We are grateful to the jury and the court for their service,” Apple told Re/code. “Today’s ruling reinforces what courts around the world have already found: that Samsung willfully stole our ideas and copied our products. We are fighting to defend the hard work that goes into beloved products like the iPhone, which our employees devote their lives to designing and delivering for our customers.

This statement is the latest iteration of a disturbing notion of intellectual property that Apple is pushing since the days of the notorious “trashcan trial“: ideas can and must by “owned” by somebody.

Neither patent law nor copyright law say so. On the contrary they clearly state that ideas as such cannot be legally protected. Nevertheless, by planting the “our ideas have been stolen” meme Apple is trying hard to make courts stretch the letter of the law until it can be enforced to ideas as such.

I am astonished by the inertia of the rest of the ICT companies (at least those companies who relies on Open Source components to design its products) in connection with this issue. True, there are more actual and urgent matters to deal with, but on the long term when Apple will finally succeed in having a court stating that ideas as such can be “own”, then it will be too late to complain.

Posted on

The Content Filtering Hysteria… again

According to the Italian online newspaper Repubblica.it, the UN-appointed expert Frank La Rue expressed concerns about the effect of an upcoming copyright-related regulation announced by the Autorità per le comunicazioni (AGCOM an independent, State-appointed body superseding the broadcast and telco secondary regulation) on of free-speech. AGCOM is trying since longtime to enforce the French HADOPI model in Italy to “fight copyright infringements”, pushing to self-assign the power to delete copyright infringing contents available on the Internet. With a rather while understandable (from a political standpoint) ? convoluted prose Mr. La Rue said what a lot of people is saying: copyright is not a “gold right” and has no title to be given ? an absolute stand over free speech and the other fundamental rights. But this is only a third of the story.

Second third: since, in Italy, copyright infringements are a criminal offense, only a magistrate can order both a content’s filter or removal. By letting the AGCOM act as a parallel “prosecutor and ? judge” would means to invade the attribution of the judiciary system and endanger the the “due process” principle.This is not allowed by the Constitution.

Third third: copyright doesn’t only belong to broadcast companies, music labels and movie producers. Every Internet user who publishes a photo, a movie, a song or a text has the right to not be stolen of its intellectual property. The AGCOM proposed regulation doesn’t address clearly this issue so only two options are possible: either the regulation only cares of the big companies and that would be non acceptable, or, on the contrary, will be open to protect everybody – i.e. will become useless, since there will likely be a tide of claim.

The end of the story is that, whatever the power belonging to AGCOM, it can’t invade the prerogative of the Court, notwithstanding the supporting opinion received by the AGCOM from some legal scholar maybe not much familiar with the intricacies of the Italian criminal procedural code.

 

Posted on

Street Photography, Right to be Alone and the Challenge of the Reasonable Privacy Expectation

Question: what does ? street-photography has in common with Google’s indictment in the Mosley suit?

Answer: both challenge the balance between reasonable privacy expectation and the right to be informed.

There is a widespread attitude acknowledged by some European courts – namely, Italy and France – that grants legal protection to this alleged “right to be forgotten”. This is a rather dangerous attitude because following this path leads to the deletion of the collective memory of a culture: if Catilina were alive today, he would have had merit in asking his conspiracy to be deleted by the chronicle. Agreed, not everybody is a Catilina – or a public person whatsoever – but there is a shared principle in Western legal systems that separates what is public and what ought to be private. As soon as something falls in the former, there is not – or ? there shouldn’t be – a reason to delete the information of its existence.

To provide an example of the absurdity of the enforcement of this alleged “right to be forgotten” on the freedom of (online) press I can quote a fact I’ve witnessed in person, professionaly. An online magazine has been targeted by a threatening letter from a law firm, asking to remove from its server an article talking about an acquittal – yes, acquittal – of a Mr. Somebody. The basis of the claim is not a falsity or an exaggeration – that would have been illegal, indeed – but the simple fact that this Mr. Somebody “didn’t like the news to be online.” Only the future will tell whether this case will end in settling new censorship’s standards, or if the Justice – once and if the issue will be taken in Court – will decide in favour of the freedom.

As per the relevant case law, after a couple of lower court decision that enforced this “right to be forgotten”, a Supreme Court decision ruled that there is no such thing as “right to be forgotten” when freedom of press is involved and the news is correct. The concerned person, nevertheless, has the right to ask the online newspaper to update the original news in case of some further development of the story.

With a rather unusual sense of balancement – when dealing with the Internet – the Supreme Court issued a reasonable decision that should stop any further attempt of erasing the History.

 

Posted on

Net-neutrality, Trojan Horses

In Italy the Codice delle comunicazioni elettroniche legally bind ISPs to guarantee the functionality and security of the network (both from a physical and logical perspective). This means that if traffic shaping is needed to handle traffic overload this can be done with no specific provision.
Every proposal of nailing down traffic shaping options is a trojan horse because – for instance – copyright lobbies might whistleblow that P2P is creating an international emergency thus forcing ISPs to violate the net neutrality “for security sake”.