The Week in Law and Technology

I guess when you are interested in something, everything looks interesting, but this seems like an especially interesting week at the intersection of law and technology. I posted yesterday on the telcom mergers approved by the FCC on Monday.

 

Here is my list; add yours in the comments.

 

Google Print. Google Print went live yesterday. Google Print is Google’s new effort to digitize books and bring them to the Web. Google has already been sued twice (the complaints are here and here) and the lawsuits have already been the subject of extensive commentary (see on this blog Doug Lichtman’s prior post, and postings elsewhere by Bill Patry, Fred von Lohmann, Tim Wu, and Larry Lessig).

 

Amazon’s Google Print. Google Print has competition. As reported in today’s newspapers (New York Times link here), Amazon is launching a new program to make available chunks of books for a fee. The Times quotes Paul Aiken, the executive director of the Authors Guild, one of the litigants against Google Print, as characterizing Amazon’s new program as a “positive development.” (The relationship between the Authors Guild and Amazon hasn’t always been so cozy: the Authors Guild tried to punish Amazon by delinking to it in response to Amazon’s efforts to increase used-book sales.)

 

Local Barriers to Video Entry. The Federal Communications Commission announced yesterday a new notice of proposed rulemaking to investigate whether local franchising authorities are unreasonably interfering with new entry into video distribution. (I posted on this issue just yesterday morning prior to the FCC’s announcement. Coincidence? I think not. (Sorry, that should have been “Cause-and-effect, I think not.”)) The House Energy and Commerce Committee also released yesterday a new staff discussion draft of possible broadband legislation, and that too would address local entry barriers to video entry.

 

Advertising-Supported Software. Microsoft has announced a new software service—Windows Live—which will include an advertising supported component. This reflects the general migration in a networked world from products to services and the important change in advertising driven by Google’s contextual ads approach.

 

A Bad Week for DRM. Digital rights management software represents responds to the fact that consumers can now distribute ripped songs across the Web in an instant. (Whether DRM stands any chance of controlling file-sharing is a contested question, and one that we have been explored in detail on my temporary group discussion blog, the Picker MobBlog.)

 

On Monday, Mark Russinovich posted on a Sony DRM scheme for music. The Sony approach addressed its concerns, but seems to create a whole slew of potential problems for consumers. Princeton computer scientist Ed Felten has had an extended discussion of these issues this week (see here, here and here), and copyright activists have had an understandable field day with the situation.

 

As I have noted in a recently published paper, we are going to need to draw new lines regarding evolving products, that is products that continue to change once they are in a consumer’s hands. Large entities will certainly seek to rely on contracts in the form of end-user license agreements—see Eric Goldman’s post on this—but it will not be surprising if Congress or the courts require some sort of meaningful indication of the scope of possible changes that a particular firm seeks to a consumer’s computer or other networked device, such as an iPod. We also may marry that with traditional product defect legislation for products that inflict—or make it possible for others to inflict—harm on networked devices.

 

The Broadcast Flag. The House Judiciary Committee conducted a hearing yesterday on possible legislation regarding the broadcast flag. The Federal Communications Commission had concluded that the broadcast flag was an important part of protecting copyrights as we transition to digital television. In May, the DC Circuit concluded that the FCC lacked jurisdiction to implement the flag and Congress is now considering whether to expand that jurisdiction.

 

Antitrust and Patent Settlements. On Wednesday, the Second Circuit released a new decision in the Tamoxifem Citrate case addressing antitrust issues in settling patent claims relating to entry by generic drug manufacturers. This issue has been the subject of competing circuit decisions—the Valley Drug decision in the 11^th Circuit and the 6^th Circuit’s Cardizem decision. In a long 2-1 opinion, the 2^nd Circuit affirmed the district court’s dismissal of the antitrust claims.

 

Comments

[CJ]

Quite the exhaustive and intriguing list; It's like New Year's Day for a college football fan... not that I'm proud of it.

[Gus]

Good list. Here are a few more. If only I could figure out how to post hyperlinks in the comments.

Cogent and Level3 have reached an agreement (http://www.crn.com/sections/breakingnews/dailyarchives.jhtml?articleId=172901642) in their peering contract dispute.

On Halloween, the MPAA silently introduced (http://www.theregister.co.uk/2005/11/02/analog_hole/) draft legislation meant to plug the "analog hole" by requring any device capable of analog-to-digital conversion of video to support and enforce DRM.

The video iPod fuels downloads of a million videos in 20 days. (http://www.kfmb.com/features/consumer_alert/story.php?id=27636).

The Supreme Court denies Microsoft's cert petition in its case against Eolas. (http://patentlaw.typepad.com/patent/2005/10/eolas_v_microso.html)

--Gus

[Joe Miller]

How about the Supreme Court's cert grant in the Metabolite case, the opinion in which may well have a significant effect on the patentability of computer-implemented process inventions? Dennis Crouch talks about the case at the Patently-O Blog (http://patentlaw.typepad.com/patent/2005/10/labcorp_v_metab_1.html).

[Adam]

Also, Congress failed to pass legislation which would have exempted the Internet from its public communications rules (HR 1606).