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LAW PUNDIT Saturday, January 31, 2004 1/31/2004 05:54:00 PM [Home] [Print]

Seamless Computing Microsoft and Bill Gates - plus Seamless Lawyering and Seamless Blogging

Seamless Computing Microsoft and Bill Gates - plus Seamless Lawyering and Seamless Blogging

The Future: Seamless Computing

Seamless Computing

ZDNet just ran a story in German about Microsoft's Bill Gates and his new vision of "seamless computing" which was recently reported in English e.g. at the Guardian Unlimited and first presented by Bill Gates in November, 2003 as a concept at the 2003 Comdex in Las Vegas. The Microsoft website writes, quoting Bill Gates:

"Gates said the next great opportunity for the technology industry is to create software that breaks down the barriers between people, systems and information. Gates described this technology vision as Seamless Computing, and to realize it, Gates says the industry must deliver key software breakthroughs that create a platform and standards to allow digital information and systems to more easily work together.[emphasis added]

In this decade, we're engaged on delivering the final level of infrastructure, which is a software connecting infrastructure that connects all your different information together, that lets you work in a very natural way, connects you up to your speech, and your ink, and your photos, all those natural things. And so we talk about this as Seamless Computing, the idea that we, through advanced software, will be able to eliminate those things."

The word "seamless" appears to be "in". Indeed, the LawPundit blawg with its tagline "The Law is a Seamless Web" was founded on October 1, 2003. Is this one of those cases of collective consciousness or have the Microsofties been reading this blawg?

We are of course just kidding about that.

The Origin of the Term: Seamless Computing

Although "Seamless Computing" may become a "Microspeak" phrase of choice for the coming decade, as Mary Jo Foley suggests in her November 21, 2003 Microsoft-Watch article on On 'Seamless Computing' and Other Microspeak,
"[t]here are early public references to the term from Microsoft nemesis The Object Management Group."

Microspeak

As written at ENT News:

"Gates proclaimed the decade the era of 'Seamless Computing.' It's a term that students of history will remember was originally adopted by the Object Management Group in the mid- to late-'90s to describe its work in developing CORBA; Microsoft wasn't among the 700 or so companies that formed the OMG consortium."

The earliest article online we could find about "seamless computing" is The Seamless Computing Environment, a paper by Timothy J. Sheehan (Oak Ridge National Lab), Robert Pennington (Pittsburgh Supercomputing Center), Pillip M. Papadopoulos, George A. Geist and Richard Alexander (Oak Ridge National Lab) presented at the Intel Supercomputers Users Group, June 11-13, 1997, Albuquerque, New Mexico. See The Program, The Abstract of the Paper and The Paper.

If Microsoft were to register "Seamless Computing" as a trademark in the future, would it stand?

Foley writes at Microsoft-Watch:

"Microsoft execs first began talking about seamless computing (no "TM," but Microsoft is using initial caps when referring to the term) back in 2001, when the company rolled out Windows XP.

Microsoft seems to be equating Seamless Computing with interoperability. But Redmond's kind of Seamless Computing isn't focused interoperability among heterogeneous systems and software from different vendors (which is what most folks mean when they talk interoperability). Instead, Seamless Computing, according to Microsoft, is all about interconnecting Windows-based systems, from the Auto PC, to the Media Center PC, to the data-center hub."

Beyond Seamless Computing: Seamless Lawyering and Seamless Blogging

From the standpoint of the legal profession and law bloggers, the next steps forward in the evolution of "Seamless Computing" - in the spirit of the Eolas patent applications - are of course foreseeable to us all.

We can in the future probably expect to have the following two terms - sorry, we could not resist these. The first is:

Seamless Lawyering

Seamless Lawyering

"Seamless Lawyering" (TM) - the term is hereby coined and trademarked by LawPundit today, January 31, 2004, as we found no listings whatsoever when we entered this term in the Google search box. Under "Seamless Lawyering" we understand the seamless interoperable and ubiquitous digital process which extends
from
1) client acquisition through websites, blogs or similar online resources
to 2) client correspondence by blogs, e-mail and other digital media
to 3) speech communication via voice mail and comparable digital technologies
to 4) client representation through online resources, e.g. electronic filings - excluding of course any required personal appearances before courts, regulatory bodies or other government offices, and
to 5) execution of online legal tasks by legal professionals in the exercise of their responsibilities, including of course online research, contract negotiation through networked online meetings, and so on
- all such "seamless lawyering" to be achieved via the internet or similar digital means.
A "seamless client" would be one whose legal requirements would be fulfilled by a "seamless lawyer" who would never meet the client personally. As strange as this sounds, we are sure this will one day in fact be a digital reality.

and the second term:

Seamless Bloggiing

Seamless Blogging

"Seamless Blogging" (TM) - the term is hereby coined and trademarked by LawPundit today, January 31, 2004. Under "Seamless Blogging" we understand the seamless interoperable and ubiquitous digital process of the creation of blogs, whether as text, graphics, photography (both blogging or moblogging) or mixed media - all combined with the seamless digital distribution (e.g. by Atom or RSS, or similar existing or future technologies) of their content on state of the art digital media, such as computers, pda's, mobile phones, and future derivative technologies, etc. An optimized "seamless blogger" will cover the bandwidth of every possible digital technology and a "seamless blog" will be accessible by syndication at any time, anywhere, on any media by anyone.

Better Microsoft than Eolas

Are we kidding? Now why would we do that? We simply did not want Eolas to beat us to the punch.

In the spirit of good faith, however, we now thus throw the terms "Seamless Lawyering" and "Seamless Blogging" into the public domain, to be used gratis by anyone who finds them useful. As for "Seamless Computing" we will see what Microsoft and Bill Gates bring us in the future. Listen, the Law Pundit is a great fan of Bill Gates. What a bright guy and what a tremendous positive impact he has made on our age. Wonderful. Makes you glad to be here in this era.

^Permalink : Andis Kaulins : 1/31/2004 05:54:00 PM

LAW PUNDIT Friday, January 30, 2004 1/30/2004 02:30:00 PM [Home] [Print]

Compulsory singing of Japanese "Kimigayo" anthem legally challenged by teachers

Compulsory singing of Japanese "Kimigayo" anthem legally challenged by teachers

Is Forced Singing Legal?

The process of nationalistic indoctrination is a problem everywhere, as manifested by a recent legal challenge by teachers to the compulsory singing of the Kimigayo anthem at school ceremonies in Japan. See Japan Today - News - 228 teachers sue over compulsory singing of anthem.

Particularly of interest at that Japan Today page are also the ca. 70 comments (at this date) of readers.

The Law Pundit posted previously on the pledge of allegiance in American schools here and here.

^Permalink : Andis Kaulins : 1/30/2004 02:30:00 PM

LAW PUNDIT Tuesday, January 27, 2004 1/27/2004 10:12:00 PM [Home] [Print]

Indigenous intellectual property, art, architecture, cultural icons and modern copyrights

Indigenous intellectual property, art, architecture, cultural icons and modern copyrights

The concept of indigenous intellectual property is one of the stranger notions floating around in the intellectual property world.

The Artwork of Prince Harry

Ayers Rock

A BBC News report as well as an August 19, 2003 Guardian article by Peter Shadbolt and Peter Collins entitled Harry paints his way into outback row raised the issue of "indigenous intellectual property" with regard to some artwork of the British Royal family's Prince Harry. This artwork was clearly "inspired" by Australian Aboriginal Art, especially the use of the symbol of a lizard.
Indeed, we looked at the work and found it be quite good for a young man.

But as written in the Guardian:

"Anne Loxley, a Sydney-based curator specialising in Aboriginal art, said she expects a large test case about indigenous intellectual property in the near future.

'With the law going the way it is, even Prince Harry could spark something off,' she said, adding that the prince had made the fatal error of appreciating the aboriginal works for their aesthetic value alone."

Robert Eggington, Dumbartung Aboriginal Corporation, has investigated alleged cases of artistic "cultural exploitation" and is quoted as saying:

"When we see our symbols - important symbols for us that represent lightning, stars and waterways and other important religious entities - being used on underwear or toilet seat covers, it can be very disappointing. The only thing we've got left is our culture and when we see this it strips our work of its integrity and its dignity," he said.

It appears to us as if the above critical comments stem from people whose profession involves Aboriginal art in some way. It is hard to see how the average Aboriginal is being "culturally exploited", as if the artistic depiction of e.g. Eskimo igloos or American Indian "totem poles" was somehow culturally demeaning. Perhaps there is a fine line between "business" and alleged "indigenous rights"?

All Art is Based on Something Previous

Totem Pole

A lizard painted in a certain art style can not be viewed as "indigenous intellectual property". Such a standard would prohibit depiction of almost anything at all coming out of man's civilizational history. Art is a manifestation of society as it is and has been. All art is inextricably entwined in the milieu from which it arises. Who in art has ever created anything totally new which was not based on things that existed before? What artwork did not take its motive force from the artist's world at the time of the creation of the artwork?

Who Owns What ?

In addition to the above problems, we have the legitimate question of who owns what?

Does the fact that someone comes - or alleges to come - from a given cultural heritage give him ownership rights to any kind of cultural icons in a particular society? For example, one Aboriginal might approve of Prince Harry's art, another might be against it. So who is to decide? Does mere "belonging" to a cultural group give one rights over the cultural works of one's long passed ancestors? That would be a most unique legal concept.

Pyramids of Egypt

Much of the history of civilization is art in its broadest sense. Who owns the cultural heritage of Lascaux or Chauvet? Do we have any evidence that the Magdalenians - who painted these cave paintings - were the direct ancestors of the French of today ? and if so, which group of French - those in Bordeaux or those in Alsace? Indeed, who were the cave painters of Europe? What about the cultural ownership of rock art at Valcamonica in Italy? There are well over 100,000 prehistoric art figures represented at this prehistoric site. Would all of these figures be protected by so-called indigenous intellectual property rights?

On another cultural level, we could then also ask: who were the architects that actually built the Pyramids of Egypt in ancient days? Were they the ancestors of today's Egyptians, or of another people, as a study of the features, hair color and genetic information - such as DNA and blood type - of the pharaohs might indicate? These issues in the history of art and architecture are surely not completely resolved.

Cross on a Goblet

What about religious feelings and art ?

As for the injury to religious feelings caused by art, just imagine if the Christian cross were regarded to be "indigenous intellectual property" of e.g. the Roman Catholic Church and that pictures of the cross - even in art - could only be used as the Church permitted. We would be back in the dark ages of mankind when religious ignorance, intolerance and superstition ruled the earth. Indeed, this kind of abject primitivism is still a portion of the belief system of certain cultures in which artistic depiction of various kinds is prohibited. Such belief systems are trying to take mankind back to the days before art - and that is maybe about 20,000 to 30,000 years ago. These are the forces against civilization.

Beethoven

What about music ?

As for the "proper use" of art, imagine if the music of e.g. Beethoven, Bach, Mozart, Brahms, or Strauss were suddenly limited to people who played that music "properly", i.e. with the "proper respect" as determined by some government or other musical authority. One can always find willing censors to tyrannize artists and the public.

From our perspective, the question is easy to decide when we deal with indigenous symbols of great antiquity. NO ONE really has a better legal claim to that property than another person.

What about modern art and architecture ?

How about the Statue of Liberty, for example? The Statue of Liberty was a gift of France to the United States, based on an original idea by Edouard de Laboulaye, a Professor of Law. If "indigenous intellectual property" actually existed, who would own the indigenous intellectual property rights to this Grand Old Lady?

The issue gets a bit more complicated as we reach the modern period.

Coca Cola ®
Warhol Art
and Copyright

Andy Warhol
focused on
cultural icons

Ponder if Andy Warhol's famous rendition of a Campbell's Soup ® can or of Coca-Cola ® bottles is copyright infringement per se? Not only was Warhol's art intended to be "art", but it was also extremely successful financially and thus was surely a "commercial exploitation" of a trademark.

On the other hand, it was an honest attempt to portray artistically the age and society in which Warhol was living and in which we all still live. It is an age marked by tin cans and Coke bottles ®.

[Personally, the LawPundit is a Campbell's Soup ® and Coca-Cola fan ®.]

Cultural Icons

The legal issue of the intellectual property status of "cultural icons" is not a hypothetical one and is found discussed in 1 J. INTELL. PROP. 61 by Alyson Lewis, J.D. 1999, University of California, Hastings College of the Law, in "Playing around with Barbie ® : Expanding Fair Use for Cultural Icons".

Standard Barbie Doll Style

"Malted Barbie"
Is the Photo a
Copyright
Infringement ?

A 9th Circuit decision recently dismissed the case in which Mattel had sued a photographer for making photos of Barbie dolls in "unusual" poses, one of which we have pictured here. The doctrines of free speech, fair use and copyrights collided in that case, with copyrights clearly losing.

Control over Artistic Creations

Obviously, there are limits to the amount of control anyone has on their artistic creations and what the world does with those creations. The legal issue is: how much control is and should there be? As written at the ArtsJournal quoting the Los Angeles Times (Newsday) 01/08/03:

"A Great Threat To Modern Culture: "The current artistic culture, which is replete with references, borrowings and parody, has collided with a corporate and legal culture that is bent on protecting intellectual property. If Andy Warhol were working today, he would be facing litigation from Campbell's soup, Church & Dwight (the makers of Brillo pads) and every corporation whose logo he appropriated. 'Virtually all art builds on previous work, either overtly or covertly'." Los Angeles Times (Newsday) 01/08/03

True, true, but ponder that Warhol's most famous Campbell's Soup painting was later auctioned for over $1 million at Sotheby's. Warhol could, after all, have pictured an "unknown" soup, could he have not? So, Warhol WAS in fact "capitalizing" on "cultural icons".

^Permalink : Andis Kaulins : 1/27/2004 10:12:00 PM

LAW PUNDIT 1/27/2004 12:49:00 AM [Home] [Print]

Copyright Issues in the Internet Age

Copyright Issues in the Internet Age

Copyright Issues in the
Internet Age

In The Tyranny of Copyright?, a January 25, 2004 New York Times article, Robert S. Boynton, director of the graduate magazine journalism program at New York University, presents a report on the discussion of modern copyright problems and the internet.

Boynton writes quoting Professor Yochai Benkler of Yale Law School :

''We are at a moment in our history at which the terms of freedom and justice are up for grabs,'' Benkler says. He notes that each major innovation in the history of communications -- the printing press, radio, telephone -- was followed by a brief period of openness before the rules of its usage were determined and alternatives eliminated. ''The Internet,'' he says, ''is in that space right now.''

The article quotes numerous personalities and legal authorities in the field. It is a very good read here.

^Permalink : Andis Kaulins : 1/27/2004 12:49:00 AM

LAW PUNDIT Monday, January 26, 2004 1/26/2004 12:44:00 AM [Home] [Print]

Research Skills are not everything - but close

Research Skills are not everything - but close

Research Skills in Academia FAIL according to Berkeley study

Berkeley studies have confirmed what we have known and argued for years as a teacher of "legal research" - that very few people out there in academia have learned how to do research properly, and this includes the professors, where failing research skills are often mirrored in the incompleteness or even falsity of their articles in peer-reviewed journals.

We have been battling against this for years. See Megaliths.net, StarsStonesScholars and LexiLine.

The Law Pundit was lucky in his younger days on this score, laboring as a research assistant for professors throughout undergraduate and law school days and knowing the library inside and out.

In her article of January 21, 2004, Wendy Edelstein of the UC Berkeley News in Improving undergraduate research skills writes about some remarkable findings at Berkeley:

"[I]n a five-year survey of information-literacy competency conducted by Berkeley’s Teaching Library in the 1990s ...results indicated that graduating Berkeley seniors were perplexed by elementary tasks involving organizing and accessing information. More specifically, the survey found, the median result in information-literacy competency among the surveyed seniors was a failing score."[emphasis added by LawPundit]

Worse, in a follow-up study, professors themselves were tested and found that they were equally inept in research:

"Last summer, a number of Berkeley professors from a variety of disciplines were asked to research a group of Jewish chicken farmers in Petaluma, a topic well outside their respective academic purviews. Much like students might, they became overwhelmed, turning to databases they regularly use (and even, it can now be told, to Google) for help."

Note that the study - in finding that professors when overwhelmed, turn to known resources - mirrors what we have found to be rampant in academia. When the mainstream is confronted with NEW ideas outside of what they think they know, they retreat to old well-trodden paths and ignore the new material. This is NOT science.

Worse than even that, in the course of these studies it was discovered:

"The humanities faculty were thrilled to learn that their teaching goals weren’t different from those of their counterparts in the sciences,” Tollefson continued. 'They both prefer teaching concepts over facts.'"

We agree that it is more fun to teach "concepts", but a review of the humanities in particular shows that they have often FORGOTTEN the facts. Each academic teaches his or her "concepts" - which is fine - but those concepts must be checked and researched AGAINST the facts and abandoned if the facts do not agree with the concepts. Many academics still have not learned this lesson.

To the credit of the Berkeley professors above, they subsequently changed their teaching to deal with the weaknesses found in the study.

Now, what about all the other academics out there who do not know that they have these weaknesses and are passing these research inabilities on to new generations of academics? We speak here particularly about academic disciplines outside of law.

^Permalink : Andis Kaulins : 1/26/2004 12:44:00 AM

LAW PUNDIT Sunday, January 25, 2004 1/25/2004 11:53:00 AM [Home] [Print]

Copyright Essentials for Librarians and Educators

Copyright Essentials for Librarians and Educators

Copyright Essentials for Librarians and Educators

.

The Copyright Management Center at IUPUI (Indiana University - Purdue University - Indianapolis) has an excellent basic overview of "Copyright Essentials for Librarians and Educators" organized into the categories of
Copyright Quickguide!
Fair-Use Issues
Permissions Information and
Copyright Ownership.

Reference is made to a book by attorney and librarian Kenneth D. Crews, Copyright Essentials for Librarians and Educators (Chicago: American Library Association, 2000), which of course requires some update work in view of the rapid developments in copyright which have occurred since then.

^Permalink : Andis Kaulins : 1/25/2004 11:53:00 AM

LAW PUNDIT Wednesday, January 21, 2004 1/21/2004 08:24:00 PM [Home] [Print]

The Law, Civil Rights, Integration, Affirmative Action, and Diversity

The Law, Civil Rights, Integration, Affirmative Action, and Diversity

Adam Cohen in his January 18, 2004 article The Supreme Struggle in the New York Times writes about the course of US Supreme Court decisions on civil rights, integration, affirmative action and diversity ever since Brown v. Board of Education was decided nearly 50 years ago. It is an interesting read.

According to Cohen's article, and comparing that with this article at adversity.com, will the much hated school busing of children to achieve integration again be a political issue down the road?

Will school busing again be an issue?

In the view of Law Pundit, forcing the "pledge of allegiance" on young school children - this from the right wing - is in the same category of tyranny as "school busing" - this from the left wing. Both use children as pawns in the ADULT's political game. See this same political game in Northern Ireland. It is a highly offensive, reprehensible way to push one's political goals by using children as the weapons of choice.

If adults want to achieve certain social goals, then it is up to them to push the "pledge of allegiance" at THEIR places of work - and if they want to achieve integration, then it is up to them to achieve it in THEIR institutions. As Pink Floyd correctly sings in "The Wall (Part II), albeit in another context with which we do not agree, but we do here: "Leave the Kids Alone". Do not force your children (and especially not the children of OTHER people) to try to achieve what YOU as adults have not achieved. Rather, serve by example - then, and only then, will the children learn to do otherwise.

^Permalink : Andis Kaulins : 1/21/2004 08:24:00 PM

LAW PUNDIT Monday, January 19, 2004 1/19/2004 04:47:00 AM [Home] [Print]

All Users potentially soon affected by the Microsoft-Eolas Case

All Users potentially soon affected by the Microsoft-Eolas Case

Absolutely absurd and intolerable consequences

The inordinate time that LawPundit is spending on the Microsoft-Eolas case here is not without reason. Not only are there monetary consequences for the consumer - since WE ALL ultimately pay the bill for this nonsense, but there may be practical - absolutely absurd and intolerable consequences - for the average browser user down the road.
If the decision in the Microsoft-Eolas case is not overturned on appeal or if the USPTO does not render the patent unenforceable in the course of its currently ongoing review of that patent, nearly everyone using Internet Explorer may soon have to deal daily with the judicially required results of the clearly erroneous judgment made in that lawsuit.

Via the Buzz Archive of the Web Standards Project we are led to this Microsoft page on the immediate consequences of the case.

Essentially, since the Eolas patent has claimed exclusive ownership of what it labeled an "automated interactive experience" - that is essentially the broadly claimed invention - when accessing a remote server through a web page, Microsoft may try to get around this patent claim by simply inserting a pop-up box to cut off that automated interactive experience. According to Microsoft's own website, this will possibly look like the dialogue box below every time a remote server is accessed, whereby the user will then have to click the dialogue box as desired. Unfortunately, this could happen multiple times per internet page on the browser. This is the kind of idiocy that the standard in Bonito Boats was intended to prevent, by prohibiting the patenting of broad ideas or methodologies which act as monopolies on technological advance.

On this and related issues, see also Jeffrey Zeldman's "Patent Nonsense" and his link to Saving the Browser at Ray Ozzie's Weblog.

Additionally, although the LawPundit generally rejects swearing and does not excuse it here - there is a grassroots "discussion" of this issue at comments to Tom Gilder's blog where the patent-killing "click box" is already operational as a demo.

In the opinion of LawPundit, what we read in those comments are the "voices of the people" and there is a warning in those voices to the legislative and judicial establishment which should be heeded: get your act together.

^Permalink : Andis Kaulins : 1/19/2004 04:47:00 AM

LAW PUNDIT 1/19/2004 03:25:00 AM [Home] [Print]

A Call to Legal Vigilance against Overly Broad Patents being issued by the USPTO for Mechanical Juggling of Prior Art

A Call to Legal Vigilance against Overly Broad Patents being erroneously issued by the USPTO for Mechanical Juggling of Prior Art

A Call to Vigilance against overly broad patents

.
Lawyers, legislators and judges around the world had better start paying closer attention to the crazy things that are going on at the United States Patent Office and in the courts in applying the patent laws to new technologies - and unless the current state of things is changed soon by rational legislation or by sensible judicial interpretation of patent laws relating to the internet as also for genetic research - the legal world will have increasingly to do with companies specialized not in making any inventions per se, but specialized in filing patents which mechanically juggle prior art in the hope of patenting broad methodology for which it is already obviously foreseeable that it will ultimately be adopted by commercial enterprises in the future.

This is a whole new game and a whole new way of making money: using the inadequacies of the patent laws and/or erroneous patent law interpretation by judges in dealing with the technological and internet age to fill "patent-application company" pockets.

Anticlue directs us to a devx.com - developer network - article by Guy Rish and Matt Liotta entitled "How to Get Around the Eolas Patent—Automatically" where it is written:

"Unless it's overturned, the Eolas ruling means tens of thousands of Web pages that use embedded plugins are infringing on the patent. Based on a procedure recommended by Microsoft, this filter will automatically update your HTML so you'll be in the free and clear."

Another devx.com article by A. Russell Jones, "The Eolas Patent: Don't Be a Victim", states:

Even if you're all for sticking it to Microsoft, you'd better keep a close eye on the Eolas case. If Eolas is allowed to enforce this patent, Microsoft won't be the only one paying: Web developers and Web consumers will pay a dear price, and Eolas has even more in store. "
...
[at page 2]

Outrage and Intellectual Extortion
...
This patent should never have been issued. That it was issued only underscores how little the Patent Office understands the process of creating software, or how similar the idea of interacting with remote content via the Web is to interacting with content stored locally (which the patent does not cover). In other words, Doyle and the UC didn't patent the idea of embedding content, they just patented the process of using such embedded content when it's delivered from a remote location. That was hardly a distinctive idea, even in 1993.

While such derivative ideas may be patentable [LawPundit note: no, IDEAS are not patentable, that is the whole point], and (as shown by this lawsuit) legally enforceable, using the court system to enforce such patents amounts to legal blackmail, not patent protection. That's especially true when the target is only one among many companies actively engaged in infringement. In other words, Eolas hasn't yet objected to any other company infringing on their patent rights, only the one with the most cash.

Fortunately, despite the loss of goodwill from developers, and despite the court ruling forcing it to pay damages, Microsoft has resisted this intellectual extortion, and has implemented changes that circumvent the patent rather than taking the easy route and caving in to Eolas' demands.
...
A Call to Vigilance

The fact that this patent was ever issued is ipso facto proof that developers should be extremely vigilant about preventing such patents in the future, perhaps via letter-writing campaigns, or by creating an organization dedicated to watching for overly broad patent applications that, if granted, would have an adverse effect on development. Lest you think that this call to vigilance is overblown you should peruse the other patents that Eolas may try to enforce in the future.

The LawPundit would strongly suggest that those articles be read in full at devx.com. Also take a look at the Eolas patents at the link cited above - these are not inventions, they are simply methodologies juggling prior art. None of these things should be patentable and indeed, if the courts would strictly apply the standard in Bonito Boats, all of these patents are invalid.

But it is up to the courts to get to that important step in thinking and we see no indication that they are giving any signs of moving forward. Rather - up to now - the courts are not only permitting but exacerbating an already intolerable situation - and, caveat emptor - are thereby eroding the foundations of their own authority. When judicial decisionmaking is leading to the kind of inexcusable chaos that has already been engendered by the Eolas case, the collapse of the court system is not far off, because no one will take their pronouncements seriously in the future.

^Permalink : Andis Kaulins : 1/19/2004 03:25:00 AM

LAW PUNDIT Sunday, January 18, 2004 1/18/2004 03:49:00 PM [Home] [Print]

Trial Lawyer's Prayer - Notes from the Legal Underground

Trial Lawyer's Prayer

Trial Lawyer's Prayer

.

Notes from the (Legal) Underground
presents us with
the Trial Lawyer's Prayer.

It is definitely
entertaining.

^Permalink : Andis Kaulins : 1/18/2004 03:49:00 PM

LAW PUNDIT 1/18/2004 03:00:00 PM [Home] [Print]

The Law and Michael Jackson

The Law and Michael Jackson

All the world's a stage, and all the men and women merely players

.

All the world's a stage,
And all the men and women merely players:
They have their exits and their entrances;
And one man in his time plays many parts,
His acts being seven ages. At first the infant,
Mewling and puking in the nurse's arms.
And then the whining school-boy, with his satchel,
And shining morning face, creeping like snail
Unwillingly to school. And then the lover,
Sighing like furnace, with a woful ballad
Made to his mistress' eyebrow. Then a soldier,
Full of strange oaths, and bearded like the pard,
Jealous in honour, sudden and quick in quarrel,
Seeking the bubble reputation
Even in the cannon's mouth. And then the justice,
In fair round belly with good capon lin'd,
With eyes severe, and beard of formal cut,
Full of wise saws and modern instances;
And so he plays his part. The sixth age shifts
Into the lean and slipper'd pantaloon,
With spectacles on nose and pouch on side,
His youthful hose well sav'd, a world too wide
For his shrunk shank; and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything."

- William Shakespeare, Act II. Scene VII. As You Like It. Craig, W.J., ed. 1914. The Oxford Shakespeare.

Via Classical Values and the aptly titled "Penetrating Legal Issues" we are directed to the host of issues surrounding the Michael Jackson case, a case which shows clearly that the Renaissance stage of William Shakespeare is now a modern circus tent.

Michael Jackson's guilt or innocence - for better or worse - is largely irrelevant. This is a public figure, who by his very nature and experience, will always seek the public limelight, whatever it costs.

Be aware (beware?) that we have substituted the adversary arena of the law for the battle of the gladiators in the Roman ampitheathers. The following quote is from wordsources.info on "Arena and Roman amphitheater circus productions":

"To the Roman mobs, caught in an economic tangle they could not comprehend and were unable to break, the circus was the only substitute for their troubles. The great amphitheaters became the ordinary man's temple, home, place of assembly, and ideal. As the games were ostensibly pious ceremonies given in honor of the gods, they gratified any possible religious sensitivities. At least for a few hours by being in the Circus Maximus, they were able to inhabit an edifice even more magnificent than the Golden Palace of Nero instead of having to stay in their miserable, overcrowded tenements.

When they were at the circus, Romans were able to meet with other freemen, feel a sense of unity as they sat with their factions cheering a certain chariot team, and imposing their wishes on the emperor himself for, as the Romans themselves said, 'In the circus alone are the people rulers.' The Romans worshiped courage and all Romans liked to picture themselves as rough, tough fighters. In Rome, the 'little guys' could identify themselves with a successful gladiator as modern fight fans identify themselves with a famous prize fighter or sports people are fiercely loyal to various sports' personalities or teams today."

Et tu Brutus?

^Permalink : Andis Kaulins : 1/18/2004 03:00:00 PM

LAW PUNDIT 1/18/2004 02:31:00 AM [Home] [Print]

Domain name registrars sued over new URL patent

Domain name registrars sued over new URL patent

How could the USPTO be lame enough to grant a patent like this?

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Those who think that LawPundit is exaggerating in the previous posting in citing to the dangers of affirming the Eolas patent and what awaits us if this kind of nonsense is not stopped quite soon by lawmakers and judges, should take a look at this CNET article by Marguerite Reardon at Domain registrars sued over new URL patent, in a suit involving a patent just issued, December 30, 2003. The patent holders are Frank Michael Weyer, a patent attorney, Beverly Hills, California and Troy Kurosh Jahaver.

The patent covers

"a method and system of assigning identical URL and E-Mail addresses to members of a group. For example, if Jane is a member of a group called “Group,” the patent covers assigning Jane the URL www.jane.group.com and the E-mail address jane@group.com." [emphasis added by LawPundit]

As written by Reardon:

"The suit accuses Network Solutions and Register.com of selling rights to Web URLs and e-mail addresses that infringe on a patent that was granted to Javaher and Weyer on Dec. 30, 2003. The patent covers the method of assigning URLs and e-mail addresses of members of a group such that the "@" sign is the dot in the URL. For example, if a group used a so-called third-level URL, www.john.smith.com, the e-mail address would be john@smith.com.

In the complaint, Nizza Group specifically indicates that Network Solutions and Register.com are infringing the patent by selling rights to URLs and e-mail addresses under the .name domain."

As written about the CNET story at Domain Name Rights Coalition

"Take a look at THIS story. How could the USPTO be lame enough to grant a patent like this? What's next?"

You can be sure, that without legislative and judicial intervention, this is just the beginning of the coming chaos.

The legislative and the judiciary should ponder that if THEY do not get a handle on these problems, which are inevitable due to the stupid and erroneous extension - by the legislature and the judiciary - of the patent laws to both software as well as to the methods involved in running the internet, then one day the executive WILL get a handle on these problems, and probably have no choice but to do so.

Many seemingly unsoluble problems can be solved instantly by executive order. Indeed, one of the reasons that executive powers increase in any government system - is because the legislative and the judiciary are NOT doing their jobs adequately and are creating the need for executive intervention. We see this development in the battle against terrorism, where the law has developed too far in past years in favor of the rights of criminals and too little in the direction of the rights of the protected citizen. When that happens, someone has to restore the balance.

A legal system in which patents can be filed for every little item of technology related to the internet is absurd and will continue to lead to absurd results, such as the above legal action.

Here is the abstract of the patent involved, Patent Nr. 6,671,714:

"Method, apparatus and business system for online communications with online and offline recipients

Abstract
The present invention comprises a method, apparatus and business system for allowing on-line communications with members of a group of recipients for whom the invention has been implemented. A group may, for example, comprise members of a particular business or profession. For example, a group may consist of doctors admitted to practice medicine in the United States. Individual members of the group may or may not have existing internet presences. The invention allows online users to communicate with each member of a given group regardless of whether or not the member has an existing internet presence. In one or more embodiments, the invention does so by setting up a database of contact information for members of the group, creating an internet presence for each member of such group, creating an on-line user interface allowing a user to access the member's created internet presence, and providing means of communications between the created internet presence and the member recipient. "

^Permalink : Andis Kaulins : 1/18/2004 02:31:00 AM

LAW PUNDIT 1/18/2004 02:00:00 AM [Home] [Print]

Money to Burn - Judge Zagel, Robins et al., M. Doyle, Eolas and Microsoft

Money to Burn - Judge Zagel, Robins et al., M. Doyle, Eolas and Microsoft

Money to Burn - Microsoft-Eolas Judge's Strange Novel

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James B. Zagel, the District Court Judge in the Microsoft-Eolas case (Eolas Technologies Inc. v. Microsoft Corp., N.D. Ill., No. 99 C 626, 8/11/03), where a monetarily absurd judgment of $520.6 million against Microsoft was issued as jury verdict damages for patent infringement, is also the author of a previously written novel entitled "Money to Burn".

But whose money is being burned in the Microsoft-Eolas case? More below.

Microsoft vs. Eolas - The Patent Wars

Patents, once granted - rightly or wrongly - can for all practical purposes not be revoked - at best they can be rendered unenforceable. Moreover, patents on software, methods and business practices for the internet are increasing at an alarming rate. Hence, a once open and uncluttered "technology" system is becoming "legally" clogged. Every cog in the wheel of the World Wide Web is becoming a repository for more and more patent rights, royalties and licenses. As a result, the World Wide Web is in danger of ultimate "intellectual rights collapse" down the road.

Recent news reports and blog postings refer once again to the Microsoft-Eolas patent case decision, which Microsoft is appealing. If the Microsoft appeal fails, or if the US Patent and Trademark Office (USPTO) does not limit the Eolas patent by prior art, the Eolas judgment will probably sound the bell for the beginning of the end of the internet as we know it today.

Microsoft vs. Eolas - The Patent

Here is the abstract of the Eolas patent:

"Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document

Abstract
A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects. The user may select the program object from the screen. Once selected the program object executes on the user's (client) computer or may execute on a remote server or additional remote computers in a distributed processing arrangement. After launching the program object, the user is able to interact with the object as the invention provides for ongoing interprocess communication between the application object (program) and the browser program. One application of the embedded program object allows a user to view large and complex multi-dimensional objects from within the browser's window. The user can manipulate a control panel to change the viewpoint used to view the image. The invention allows a program to execute on a remote server or other computers to calculate the viewing transformations and send frame data to the client computer thus providing the user of the client computer with interactive features and allowing the user to have access to greater computing power than may be available at the user's client computer. "

See also the "Summary" of the patent here, where the writing is no better than above. When text is written in this kind of an obscure, diffuse, disconnected style, there is a method in the madness, and that method is the sesquipedalean obfuscation of simplicity with a cloak of repetitive nonsensical overbroad verbosity.

Microsoft vs. Eolas - Prior Art

In view of the antiquated and in our view erroneous application of the patent laws to internet technology, there are only two legitimate defenses against the Eolas patent in the Microsoft-Eolas patent case: 1) the defense of "prior art", and 2) the defense of "inequitable conduct". We turn here to the defense of "prior art".

As far as the Eolas patent is concerned, as Judge Zagel himself writes:

"The patent examiner rejected the patent three times, saying the invention was an obvious combination of prior art [emphasis added by LawPundit] (inventions that pre-existed the ’906 application). File History, Paper # 4, pp. 4-5; File History, Paper # 12, pp. 2-5; File History, Paper # 15, pp. 2-4. The relevant statute states: 'a patent may not be obtained... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made....' 35 U.S.C. § 103(a)."

In other words, the issue of "prior art" was already a great issue in even getting the Eolas patent filed. Read the above linked memorandum opinion, where Zagel finds time and again on difficult issues of technology for the plaintiff and against Microsoft, in many cases directly contrary to what many an experienced computer user - so our opinion - would decide.

Yet, Judge Zagel prohibited "prior art" evidence from being introduced to the jury regarding the Viola browser developed by Perry Pei-Yuan Wei and the HTML+ specification written by W3C staff member Dave Raggett.

The jury, thus lacking any evidence of "prior art" for its deliberations was thus left with no other alternative but to find in favor of the dwarf Eolas against the giant Microsoft. The verdict was thus pre-programmed.

Indeed, Zagel's decision on the prior art of the Viola Browser seems to our way of thinking critically flawed. The question here - as in the Bonito Boats case - is this: Was this really an invention or merely a skilled mechanic juggling prior art as well as the research ideas of others?

As noted by Judge Zagel, the founder of Eolas was in close written contact with some of the other major people working on browser technology at this time and had e-mail exchanges with them on the specific topic of "embedding" long before the Eolas patent was filed. Although no one doubts that the Eolas founder was the first to file the patent on this technology, the question is whether the actual ideas and prior art came in part from his internet colleagues, as has been the normal practice in the history of the internet. The instance of an isolated "invention" in this field is all but unknown. Everything always builds on the state of the art that existed before and the road ahead is usually quite well marked. Almost all new developments of methodology are "obvious".

We find it regrettable that Judge Zagel so effortlessly - and yet we find so clearly erroneously - dismissed the prior art issue, because it does appear that legitimate issues of prior art do exist, even beyond those specifically examined by the patent examiner (who can not - on his own - have known of much of the work that other researchers were also doing on "browser embedding" at the same time that the founder of Eolas was working on the problem.)

Indeed, Eolas in its own press release (reproduced further below) specifically admits "prior art" as to previous browsers, stating that its "enhancements" are based on NCSA's award-winning Mosaic program.

Microsoft vs. Eolas - The Eolas Patent will be reviewed by the USPTO as to Prior Art

Based in part on the following cited letter by Tim Berners-Lee, the USPTO has agreed to review the Eolas patent. As written by Tim Berners-Lee of W3C, "father" of the World Wide Web, and head of the World Wide Web Consortium, in a letter to James E. Rogan, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office:

"The sole difference between the Web browser described in the '906 patent [i.e. the Eolas patent 5,838,906] and typical browsers that the patent itself acknowledges as prior art, is that, with prior art browsers, the image is displayed in a new window, whereas, with the '906 browser, the image is displayed in the same window as the rest of the Web page. But that feature (i.e., displaying, or embedding, an image generated by an external program in the same window as the rest of a Web page) was already described in the prior art publications submitted in our section 301 filing."

For purposes of that review of the Eolas patent, other researchers who have evidence of "prior art" for the Eolas patent are submitting that prior art to the USPTO. As noted with respect to the alleged Eolas patent as being invalid on the basis of prior art at the appropriately named raving lunacy blog:

"[P]rior art is being gathered and sent to the patent office. Hopefully they will invalidate this patent and the rest of us who build websites for a living can get back to work."

The link to W3C here is one such example of prior art as being collected by the W3C.

Microsoft vs. Eolas - The Defense of Inequitable Conduct

The defense of inequitable conduct essentially means that someone claiming a patent can not intentionally fail to disclose relevant material relating to his patent - e.g. the known research of other persons on the subject of the alleged "invention". If inequitable conduct is found, the patent is unenforceable.

In this regard, Zagel held regarding the "defense of inequitable conduct" raised by Microsoft that:

"[t]he defendant [Microsoft] has failed to prove that the inventors or assignees of the patent failed in their duty of candor in the patent prosecution before the United States PTO."

This is a finding which we at LawPundit find to be clearly erroneous. It is clear as a matter of fact from the record that the founder of Eolas had active interchange with other "embedding" programmers in the internet community but did not mention these interchanges or their research in the Eolas patent application, nor in interchange with the patent examiner, thus giving the erroneous impression that the patent invention was exclusive to Eolas and not based on any prior art - which was the whole issue. This is a conclusion which is hard to sustain given the fact that there was a concentration of research on this obvious next browser development at that time by numerous persons in the internet community, including Microsoft itself.

Yet, Zagel writes:

"So I do not believe that Doyle made a tactical decision to forego disclosure because of the advantages of defending his invention after patent issued. He made the decision because he believed that Wei was full of hot air and he had nothing concrete to display to an Examiner. So I credit his testimony that he had no intent to deceive the Examiner. In this case, the Wei claim, as known to Doyle, was of limited materiality at best, and he had no intent to deceive."

It is hard to accept the logic of Zagel's statement. In spite of the fact that the Eolas patent was thrice denied by the patent examiner for "prior art", the founder of Eolas never mentioned to the patent examiner any of the other research concerning browser embedding that was known to him, even though "prior art" was the major issue which was going to determine whether the patent would be granted or not. The explanation given by Judge Zagel is simply not believable.

Microsoft vs. Eolas - The Case of the Previous "Unrelated" Patent

We find it significant - and evidence as to character and intent - that the founder of Eolas - ALREADY five years previous to 1994 [when the Eolas patent was filed], in 1989 had applied for a totally different patent claiming the invention of some kind of "bit map" technology for video displays. "Bit map" technology has been known since the inception of the internet. We find it telling that also here, apparently no appropriate credit is given in the filing to the copious prior art and inventions made by others.

Everyone should take a look at this patent filed in 1989. Here is the abstract of that earlier "invention":

Method and apparatus for identifying features of an image on a video display
Abstract
A computer graphic interface allows a user to obtain descriptive information concerning a feature of a displayed image by pointing to the location of the feature. Conversely, the user may enter descriptive textual information, and the locations of responsive features are indicated. The data processing and memory storage requirements are minimized by encoding information about the image as a pixel bit map, and a color map in which the addresses or indices of the color map are correlated with the addresses or pointers to strings of descriptive information. Each color map address corresponds to a predefined set of features and descriptive information about those features. Since the pixel bit map defines a color map address for each location on the image, suitable programming of the color map can insure proper correlation of descriptive information with corresponding locations on the image. The correlation between color map addresses and the descriptive information about the features is represented most compactly by arranging or sorting the entries in the color map so that there is a correspondence between each predefined feature and a continuous range of color map addresses. Therefore, for a specified color map address, the corresponding set of features and their pointers can be found by comparing the specified color map address to the limits of the color map address ranges for the various features.

In my opinion, this above patent, written in "garble speak", and claiming a patent on video display imaging by "a pixel bit map" - a method of coding color information known to everyone since the inception of computing - tells us something about the nature and purpose of the later "patent" filing on browser technology.

For the LawPundit, what Eolas claims to have invented is nothing new and part of the inevitable development of browser technology, most of which anyone can see in advance, that takes no genius - it is the implementation, i.e. the specific writing of software, which is critical, not the attempt to patent "imagined" new methodologies, for which no patents should be given. We can all imagine new technologies and methodologies. "Inventing" them and actually putting them to work as software is a completely different ballgame. The latter takes time, effort, skill and investment.

For Zagel to dismiss "prior art" defenses raised by Microsoft in the course of the trial - as if these defenses were simply irrelevant - and to prevent them from being heard by the jury, was, in our view, clearly erroneous.

Microsoft vs. Eolas - The Players

How do we account for the course of these proceedings thus far?

There is a saying: "To know the game you have to know the players."

Applied to the Microsoft-Eolas case, this saying brings us many new insights into the world of human interactivity and the vagaries of the law.

Judge James B. Zagel - the District Court Judge in the Microsoft-Eolas case

James B. Zagel, J.D. Harvard, was appointed United States District Judge in 1987. An evaluation of his early work as a judge is found here. It is written in that evaluation that:

"Many lawyers claim he will stretch the law to meet his political views, or his own notion of what is fair in a particular case."

Indeed, this meshes with our view concerning Zagel's opinions in the Microsoft-Eolas controversy, which seldom have the tenor of a man weighing the issues, but which give us a sense of strong one-sidedness to them, as if he had decided early on to side with Eolas. This meshes with the following statement in the evaluation:

"He is viewed as very prosecution-oriented."

And in the instant case, the civil "accused" is Microsoft, and that is how Zagel's opinons read.

What makes Judge Zagel further of interest is the fact that Zagel is the author of Money to Burn, a unique novel - for a judge - published in 2001.

Money to Burn is a story set in the same district in which Zagel is a judge and involves - of all things - a plot about a U.S. District Judge and friends of the judge robbing the Chicago Federal Reserve Bank of $100 million. For a judge's book, that is unusual, by any stretch of the imagination. Is this proper writing for a judge? and what kind of a judicial mindset is at the bottom of such a publication?

One might argue that what a judge writes and publishes in his spare time is irrelevant to his judging duties. However, if you were a wealthy corporation facing a one-man company with no assets and merely one alleged highly-disputed patent, would you want a judge who has written a book entitled "Money to Burn" to be the judge of your case, especially given the above "costly" plot?

Harriet Klausner, a reviewer of the book, Money to Burn, writes:

"[W]hat engages the reader with the story line is the thought processes of the Judge, a model citizen who seems to have allowed his darker side to take charge."

The damages for patent infringement awarded by the jury in Eolas were $520.6 million, far surpassing the heisted amount in Money to Burn.

In this real non-fictional case, the "money to burn" is the money of Microsoft in a verdict amount which can only be seen as absurd by any standard for what is a "miniscule" part of the entire Microsoft software code. Even Judge Zagel finds the verdict "not entirely comfortable".

While I am not entirely comfortable with the large size of the judgment, it is not my comfort which matters.

Yes, but by excluding evidence of prior art from reaching the jury, Judge Zagel contributed greatly to such a verdict. A jury would then get the impression that there was no prior art of any kind, not even related research, and that the case presented a case of flagrant patent infringement. In other words, in spite of his being "uncomfortable", Judge Zagel is directly responsible for the size of the impossibly inflated judgment.

Unfortunately, in the last analysis, it is not really Microsoft's money, but OUR money which is at issue here, since the consumer pays the bill in the end, regardless of the outcome of this case on appeal, and regardless of whether the USPTO limits the Eolas patent as being anticipated by prior art or not. All costs and judgments enter into the calculation of the sale price of Microsoft software as costs of doing business. Microsoft has no problem here - it will merely adjust their pricing to cover the verdict.

Hence, the consumer ALWAYS pays. The question is, to whom? For example, thirty to forty percent of the judgment goes to the plaintiff's law firm - a healthy sum. Our view is that our payments as consumers should preferably be made to someone who has contributed something of value to us - i.e. to the ultimate user. What has Eolas done for us? Nothing. What has Microsoft done for us and what does Microsoft do for us? Plenty. Should we, the consumer now pay Eolas these immense sums for nothing, giving Eolas money to file more and more "prior art" patents in all areas of research and inquiry, not just in internet browser technology? It will be chaos.

Microsoft vs. Eolas - Robins, Kaplan, Miller & Ciresi - Attorney Advertising

Speaking of lawyers, Robins, Kaplan, Miller & Ciresi L.L.P., attorneys at Law (website last visited January 17, 2004), are the litigators for Eolas. We have no doubt that they are a fine law firm and have some very capable lawyers. However, as with many of the disturbing things in this case, we were greatly disturbed by the fact that the home page of the online presence for this firm has the following "registered" trademark for their professional "line of work" prominently displayed:

"We don't just practice law, we make history.®"

We find that to be a strange description of the "fields of practice" of a firm in the legal profession. Should not the bar associations of the jurisdictions in which this firm practices law, require that this particular firm advertising slogan be stricken immediately from all firm publications, online or off? See in this regard Rappaport, Ballard and MSBA. Indeed, the latter link is to the Minnesota State Bar Association's Minnesota Rules of Professional Conduct which set out
Rule 7.4(a) (Communication of Fields of Practice) as follows:

"A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not use any false, fraudulent, misleading or deceptive statement, claim or designation in describing the lawyer's or the lawyer's firm's practice or in indicating its nature or limitations."

Attorney advertising is one of the subjects which the LawPundit often teaches in his law school classes. It is the view of LawPundit that the "advertising claim" that the law firm "makes history" and does not "just practice law" far exceeds the permissible bounds for acceptable advertising by attorneys. Such advertising is normally limited to their "fields of practice". As it stands, the slogan is prima facie misleading, suggesting to a prospective client that this law firm offers something special - "beyond the practice of law", which is simply false.

When we look at the respective law firm link to find out what "history" this relates to, it is nothing more than a list of successfully litigated cases - plus notice of a charitable contribution (discussed later). Many other law firms could present lists of successful litigation - after all, one side generally wins in every litigated case - but this does entitle a law firm to advertise that they "make history" as one of their "fields of practice", i.e. BEYOND "just practicing law". "History", in our view, is something made by the historians and journalistic reporters of events.

If the bar associations in the states in which this law firm is present were on the ball, that online law firm slogan would have to be dropped immediately, and an appropriate reprimand would have to be issued. But perhaps the law firm is too powerful in that state for any action to be taken? As the law firm itself states on its "making history page" at the end of their list of successful litigations:

"The firm donated a gift of $30 million to the Minneapolis Foundation in 1998, one of the nation's largest community foundations and the oldest foundation in Minnesota. The gift is believed to be the largest contribution by a law firm to a community foundation in the United States."

Money talks. But the above statement as part of the law firm's linked "history making page", i.e. a "fields of practice page", also looks like impermissible advertising, having nothing to do with the practice of law. Is the suggestion here that clients should seek out this law firm because part of the fees will be donated to charity? Or is the suggestion here that they retain this firm because the law firm is so successful that they can afford to hand out these kinds of monies to charitable institutions? Ordinarily, in our judgment, perhaps the "news" that a law firm makes charitable contributions in certain amounts is permissible, but certainly not when it is tied by link to a registered slogan stating that:

"We don't just practice law, we make history.®"

Michael Doyle - founder of Eolas

An eweek article gives the following interview exchange:

"eWEEK.com: [With] the browser you had released, the actual embedding technology in this patent, that was just one element of it, I would guess?
Doyle: Yes … that browser had a lot of cool things to it.
eWEEK.com: What was that browser called?
Doyle: WebRouser, sort of a play on words. The idea was—wake up the Web."

If we understand that "play on words", before Eolas arrived, the Web was asleep, is that right?

It occurs to us here to ask a critical question: Was this press-released WebRouser EVER actually released to the public or was the press release of the product release just hype? This is a doubt which is also voiced here:

"Back in 1995, Eolas announced WebRouser, a browser that was to support embedded applets. If it was ever released, I don't know where it can be found now."

We too have looked up and down the internet, and found nothing, absolutely nothing. The program WebRouser is not to be found anywhere. Was the WebRouser simply an idea? How was the alleged invention actually implemented, if at all? Surely, for a case of this magnitude, it should be possible to download this allegedly radical new browser from that period of the internet for inspection at the website page cited by Eolas, i.e. at http://www.eolas.com/eolas/webrouse/ - but there is nothing there at that page (last visited January 17, 2004) except for an HTTP 404 error "nothing found", nothing at all. What a strange case this is - we might call it the "Case of the disappearing browser WebRouser".

In fact, the Eolas press release even misspells (?) the WebRouser in the URL as "webrouse". We also looked at the correctly spelled http://www.eolas.com/eolas/webrouser/ (last visited January 17, 2004). There is nothing at all at that page either. Indeed - presuming that the Eolas press release is properly reduplicated at the sites where it is cited - the release is inordinately sloppy in publicizing an allegedly revolutionary new embedding browser program, misspelling "drastically", "convenient", "current" and having the additional grammatical and typographical errors of "This represent a" and "together,these". That is a pretty high error rate - 6 errors - for about only one page of what apparently was considered "important" text worthy of being released in a press release to the world. As any software programmer can confirm, if the programming of WebRouser were similar - - presuming the program actually ever existed - the program would be useless. NO such sloppy errors can exist in programming code - otherwise the software program collapses.

In any case, we find the Eolas patent to be an attempt to patent a methodology, which is specifically prohibited according to the case of Bonito Boats.

As written there by Justice O'Connor:

"In addition to the requirements of novelty and utility, the federal patent law has long required that an innovation not be anticipated by the prior art in the field. Even if a particular combination of elements is "novel" in the literal sense of the term, it will not qualify for federal patent protection if its contours are so traced by the existing technology in the field that the "improvement is the work of the skillful mechanic, not that of the inventor." Hotchkiss v. Greenwood, 11 How. 248, 267 (1851)."

In the opinion of LawPundit, the Eolas patent falls strictly within the above definition - it is the work of a skillful mechanic, not that of the inventor. We should not be rewarding these kinds of patent applications - we should be denying them. If the idea is good, let the skillful mechanic put his juggling of prior art into practice into his software product and sell that product. If he is unable to do so, then accumulated wealth should not flow to him in any way.

The Eolas WebRouser Press Release, September 18, 1995

Here is the entire Eolas Press Release of September 18, 1995:

"PRESS RELEASE:
=================================================================
9/18/95 Chicago: Eolas Technologies announced today that it has
released its WebRouser(TM) applet-enabled World Wide Web
browser, royalty-free for individual non-commercial use.
Versions are currently available for Sun, SGI and Linux
platforms, with Windows and Mac versions to follow in first
quarter '95. The application, and sample Weblets can be downloaded
via the Web at http://www.eolas.com/eolas/webrouse/.

Based upon enhancements to NCSA's award-winning Mosaic
program, WebRouser features patent-pending technology that
drasticaly expands the functionality of Web-based
applications, and provides a simple and convienient way to
add new features to browser programs through the use of
plug-in applications, called Weblets(TM).

The Weblet enhancement allows fully-interactive program
objects to be run from within Web pages, through the use of
a simple <EMBED> command within the document's text. These
Weblet programs become treated by the browser as a part of
the Web document, displayed "inline" and controlled by the
user in place, without diverting the user's attention from
the document itself.

Three demonstration Weblet programs are being distributed
with the WebRouser package. These include an "inline" MPEG
movie player, a 3D CAD file viewer/manipulator, and a 3D
molecular modeling application.

For example, when a user visits a Web page that has a URL
for a 3D CAD model placed within the Web page through the
use of the <EMBED> tag, the browser fetches the CAD file
over the network and then launches the CAD viewer weblet on
the user's machine. The user sees a live window within the
Web page, displaying the fully-rendered 3D model, and a
control panel which allows the user to rotate the model and
zoom in to see details. When the user then travels from
that page to the next destination on the Web, the browser
"caches" the Weblet together with the Web page. If the user
then hits the "back" button, to return to the most recent
site, the Weblet appears again, right where the user left
it, having maintained its "state" (rotation position, zoom
level, etc) during the time it was cached.

Many other Weblets are currently under development by Eolas
and others, including Weblet-based interpreters for several
popular programming languages, such as Safe-Tcl/Tk, PERL,
and the GRASP animation language. Plans are in the works
for the creation of both JAVA and Visual Basic Weblets as
well.

Other unique features of WebRouser include client-side image
map support, and the ability for the browser's button bar
and menu structure to be dynamically modified by simple
commands within HTML documents.

Client-side image maps, for example, allow HTML authors to
create graphical interfaces to their content that can be
distributed on CD ROM, using the same image-map-based front
ends as the online versions. Many publishers are attempting
to create hybrid CD ROMs that use Web browsers as their
front-end, capitalizing on the ability to develop one body
of content that can be used both for CD and online
distribution. These projects are often stymied by the fact
that the image maps that are currently all the rage on the Web
cannot be used to front-end the CD content.

The currrent approach on the Web is to use ISMAP-based image
maps that require that a remote server decode the hotspots
on the image. Since the ISMAP-based image maps are served
up by the remote machine, they can't be used to front-end
CDROM-based content, where oftentimes a network connection
is not available. WebRouser's client-side maps can be
loaded directly from the CD ROM, with no network connection
required.

Another major advantage of WebRouser is the ability of Web
documents to dynamically modify the browser's button bar and
menu structure. According to Eolas CEO, Mike Doyle, "Most
Web designers try to build in some sort of navigation system
into their documents, usually at the top of the page. The
problem arises when the user scrolls down the page and
suddenly the navigation GUI is no longer visible. WebRouser's
<LINK> command allows the Web document to place a button bar
at the top of the screen, as a part of the WebRouser GUI.
When the user scrolls down the document, the navigation
buttons remain in place. Since the document drives the
definition of the buttons' functions, each Web site can have
its own Netscape-style "What's New," "What's Cool," etc.
button bar pointing to their own content, not to some
hard-coded browser company location, such as in other browsers."

Similarly, a <GROUP> command allows a Web document to define
a new menu option in the WebRouser menu bar, allowing the
user to quickly jump to a particular Web page within a
large, complex Web site hierarchy.

"This represent a new paradigm, since these technologies empower
Web designers to personalize their Web sites, and to deliver new
levels of interactivity via the web. Taken together,these
enhancements represent a quantum leap in the ability of Web
site designers to build compelling functionality into their
Web pages."

Eolas also announced the launching of their commercial
licensing program for both WebRouser and the development of
Weblet-based commercial applications. Further information
can be found at the Eolas WWW site (http://www.eolas.com),
or by calling (312-337-8740), faxing (312-337-8743), or
emailing (info@eolas.com) Eolas directly.

*********************************************
* Eolas Technologies Incorporated *
* 10 East Ontario Street, Suite 5106 *
* Chicago, IL 60611 *
* *
* voice: (312)337-8740 *
* fax: (312)337-8743 *
* Web: http://www.eolas.com *
*********************************************

"

Prior Art seen by Joel Crisp in that Press Release already in 1995

Here is what we find about the WebRouser online at
"Eolas releases WebRouser via the Internet" in a posting by Joel Crisp. In that September 18, 1995 posting Crisp continuously points a finger at the hype found in the press release about the WebRouser, isolating several alleged browser improvements as found in the prior art of other technologies and in the HTML specifications:

1) As Joel Crisp writes:

Hmmm. do Microsoft and SUN know this ? And is support for JAVA
a backtrack ? How is this going to be affected by the patent ?
( If I was SUN, I wouldn't license my technology to someone trying
to patent the whole methodology .... ) ....

Note the point made here that NOT an invention is apparently being patented, but rather that someone is trying to patent the entire methodology, based on OTHER's technology - for which NOTHING is being paid - a patenting of methodology which is absolutely contrary to the legal standard set out in
Bonito Boats.

2) Crisp writes further in that same posting:

This has been in the HTML-3 spec for some time. Are Eolas going to try to patent this too ?

Crisp's observation points to the fact that WebRouser in that press release in 1995 was already being marketed with a lot of hype for unique features that were in fact covered by HTML specifications as PRIOR ART.

Another interesting fact is that in the allegedly existing WebRouser, applets - first created in early 1994 - were suddenly renamed weblets in the WebRouser - not coincidentally - later in 1994 (i.e. the applet idea was being copied, for free). Given that view of applets and weblets, was a weblet rather than an applet a patentable invention, unforseen by prior art? If so, why was there the obvious copying and similarity in name, if it were not a derivative of prior art? Renaming and skillfully mechanizing technology does not make it a new invention.

Linguistic Note on the word Eolas

According to the Gaelic dictionaries searchable at MacBain's:
"eòl , eòlas = knowledge, Irish eól, eolas, Early Irish eólas, Old Irish heulas...." which in our opinion is the same as Latvian jels, jelais, jelums meaning, inter alia, "grey matter, the raw substance of the brain". The actual translation as "knowledge" is probably incorrect. This makes sense in view of the main old Irish word aithne for "knowledge", a word related to English know, and Indo-European e.g. Latvian zine-, atzina also meaning "knowledge, cognition".

Conclusion

If the law can not see the Eolas patent to be what it is, then the law can not be helped.

In fact, LawPundit predicts here that the United States Patent and Trademark Office will invalidate the major operative claims of the Eolas patent - leaving the patent intact except for the parts invalidated by prior art - but as a matter of practice - making the patent unenforceable against Microsoft or anyone else.

If the USPTO does not do this, they will have lost all credibility in the internet community, and they really cannot afford to do that. Otherwise, many people, seeing how easy it is to become a millionaire simply by filing patents for methods of prior art, will flood that office with claims as the years go by. Eolas itself has plenty of such new prior-art based patents in the making, and not just in the field of computers. Mark our words.

Indeed, we ourselves are seriously thinking about having some patent applications being readied for things that we see coming in the digital and new media world, but which are not yet commercially perfected by the companies that make the products. Are they in for a surprise a few years down the road when they find out we have beat them to the punch! We too want to be rich, true to the motto, that "there is always somebody else's money to burn".

^Permalink : Andis Kaulins : 1/18/2004 02:00:00 AM

LAW PUNDIT Friday, January 16, 2004 1/16/2004 02:20:00 PM [Home] [Print]

Playboy ® Playmate ® Trademarks - Search Engines and Banner Advertising

Playboy ® Playmate ® Trademarks - Search Engines and Banner Advertising

Trademark use in banner advertising limited?

.
Sex sells and few things sell better on the internet than sex (protectkids link), a fact which has not missed the advertising industry.

Via GrepLaw we are directed to a January 15, 2004 article by Stefanie Olsen on CNET News.com entitled "Web ad trademark law to be retested", reporting on a 2-1 decision (in Playboy Enterprises v. Netscape Communications and Playboy Enterprises v. Excite [Nos. 00-56648 and 00-56662]) by the 9th Circuit U.S. Court of Appeals (majority opinion by T.G. Nelson) finding that "Playboy" and "Playmate" are clearly held trademarks and that Playboy Enterprises - contrary to the reversed district court decision (commented here by Martin Samson of Phillips Nizer) - can pursue charges against Excite and Netscape Communications for using these marks as entered in search engine searches to "trigger" banner advertisements which link to competitive and even non-competitive products.

The decision has important precedential value for the developing internet law on trademarks because it is the first decision on this issue by a U.S. Court of Appeals.

The Majority Opinion

As Circuit Judge T.G. Nelson writes in the majority opinion:

"This case involves a practice called 'keying' that defendants use on their Internet search engines. Keying allows advertisers to target individuals with certain interests by linking advertisements to pre-identified [search] terms....

Defendants have various lists of terms to which they key advertisers' banner ads. Those lists include the one at issue in this case, a list containing terms related to sex and adultoriented entertainment. Among the over-400 terms in this list are two for which [Playboy Enterprises] holds trademarks: 'playboy' and 'playmate.' ... Defendants require adult-oriented companies to link their ads to this set of words. Thus, when a user types in 'playboy,' 'playmate,' or one of the other listed terms, those [other] companies' banner ads appear on the search results page....

We hold that genuine issues of material fact exist with respect to defendants' keying practices. Thus, we conclude that summary judgment was inappropriate on the trademark infringement claim....

We reverse the district court's grant of summary judgment on [Playboy Enterprises] second cause of action, trademark dilution (48) and remand for further proceedings. We conclude that [Playboy Enterprises] has established that genuine issues of material fact exist regarding two of the three elements that the parties dispute: the famousness of the marks and defendants' commercial use of the mark.(49)
...
(49) The dilution statute, 15 U.S.C. § 1125(c), provides relief to the owners of famous marks by providing 'an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark....' The only portion of [Playboy Enterprises] claim not in dispute is the time of defendants' use, which was clearly after [Playboy Enterprises] registered the mark. That leaves the famousness of the mark, defendants' commercial use of the mark, and dilution of the mark in dispute."

The Concurring Opinion

Of interest is also Circuit Judge Berzon's concurring opinion with detailed critical obiter dicta discussion of Brookfield Communications v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999) which held that the trademarked name "moviebuff" used as a metatag by a non-trademark holder infringed on that trademark.

1-800 Contacts, Inc. v. WhenU.com

In a similar decision by a district court, 1-800 Contacts, Inc. v. WhenU.com and Vision Direct, Inc., as discussed by Gibson Dunn, and as written by Stefanie Olsen in a January 5, 2004 CNET News.com article:

"[T]he United States District Court for the Southern District of New York granted a preliminary injunction that prohibits WhenU from triggering pop-ups when people visit 1-800-Contacts' Web site."

The preliminary injunction in that case by Judge Deborah A. Batts is also handled by Anthony Lin in the New York Law Journal of December 30, 2003 at Law.com in the article "Pop-Up Advertising Enjoined in Trademark Suit".

See also CNET's "The Big Picture" for other links relating directly to trademark issues.

^Permalink : Andis Kaulins : 1/16/2004 02:20:00 PM

LAW PUNDIT Thursday, January 15, 2004 1/15/2004 04:06:00 PM [Home] [Print]

Law Pundit cited at FindLaw's Modern Practice

Law Pundit at FindLaw's Modern Practice

Modern Practice, FindLaw's Law Practice and Technology Magazine in the December, 2003 Editor's Corner in an article entitled, "The Blogbook: Open Source Lawyering" writes:

"Currently there are hundreds of legal blogs, written and operated by attorneys, law librarians, professors, legal pundits, former judges and almost anyone with an opinion. Topics range from general legal perspectives on current events, to very specific areas of jurisprudence. For every niche area of the law, there seems to be a legal blog that covers it. Some of the more popular legal blogs include Denise Howell's Bag and Baggage, Andis Kaulins's LawPundit, Rick Hasen's Election Law, and Howard Bashman's How Appealing."

We are thankful for the kudos, but there is still a lot to do. Once a good share of the public as well as the mainstream of the legal community discover that legal blogs especially are extremely useful sources of information - a discovery which has not yet taken place - blawgs will become far more popular than they are. We are working on it.

^Permalink : Andis Kaulins : 1/15/2004 04:06:00 PM

LAW PUNDIT 1/15/2004 02:52:00 PM [Home] [Print]

Nine Questions for Eolas - sent to Eolas by e-Mail today

Nine Questions for Eolas - sent to Eolas by e-Mail today

Dear Eolas Management,

We are posting this e-mail to the LawPundit blog at http://www.lawpundit.com/blog/lawpundit.htm

1. We are interested to know - just exactly what has Eolas patented? A short sentence will suffice.
2. Does Eolas claim an exclusive patent on ANY software that "embeds" software in any other software?
3. Does Eolas claim an exclusive patent on ANY software that "embeds" software in a browser?
4. Does Eolas claim an exclusive patent on ANY software that "embeds" an executable program in a browser?
5. To our understanding, all software code is written to be ultimately executed by machines. Why is the Eolas software embedding any different than placing a software code module within another software code module, which is standard practice in programming?
5. What does Eolas claim as the patent infringement in the Microsoft case? - just a short abstracted paragraph would be suitable to our readership, thank you.
6. Under what provisions, rules and regulations of the University of California Charter did Eolas obtain its patent rights?
7. Were the persons who assigned Eolas the patent right in issue acting under proper authorization and within their legal fiduciary responsibilities to the University of California under California state law?
8. Was the assignment of the Eolas patent contractual? If so, what was the consideration? If we correctly understand the limited facts available to us - the Eolas Patent was apparently "invented" during a time that the "inventors" were public servants at that University being paid by taxpayers' money. Please correct us if we are wrong on these matters.
9. According to a posting at Slash.dot, Eolas would get 75% of the verdict in the Microsoft case and the University of California only 25%. Is that correct? How does Eolas or the University of California account for this strange distribution? Was consideration paid by Eolas in order to obtain the lion’s share of this patent?

We thank you for your attention to these questions, which are of interest to the entire internet community.

Andis Kaulins, owner of LawPundit

^Permalink : Andis Kaulins : 1/15/2004 02:52:00 PM

LAW PUNDIT Wednesday, January 14, 2004 1/14/2004 01:41:00 AM [Home] [Print]

Internet Law Review for 2003

Internet Law Review for 2003

Via the DennisKennedy.blog we are directed to Doug Isenberg's article at GigaLaw on the "Internet Law Year in Review 2003" at which Isenberg discusses developments under the following headings:

"Congress Passes Anti-Spam Law
Pop-Up Advertising and the Law
Illegal Music File-Sharing Continues
Domain Names and the Law
U.S. Supreme Court Rules in Library Filtering Case
Taxes Remain a Taxing Problem
Other Issues from 2003, and a Look Ahead".

Everyone in the legal field wishing to get a good overview of the general directions in which internet law is heading should read Isenberg's article.

^Permalink : Andis Kaulins : 1/14/2004 01:41:00 AM

LAW PUNDIT Tuesday, January 13, 2004 1/13/2004 10:09:00 PM [Home] [Print]

US Citizenship "Born Here - Citizen Here"

US Citizenship "Born Here - Citizen Here"

Begging The Question has a thought-provoking posting - as also How Appealing - on Oforji v. Ashcroft, a case involving a Nigerian woman who was denied asylum even though her two girls, ages 6 and 4, are U.S. citizens due to the fact that they were born in the United States.

Since the LawPundit is himself a naturalized citizen, currently living in Germany, where the "born-here citizen-here" legal framework does not apply, we appreciate very much the extremely important nature of this citizenship issue for this and future generations.

With 6 billion people on this planet and growing, any person's citizenship will increasingly be either a valuable asset or a liability, depending on the nation of that citizenship. Accordingly, the laws here must conform to the modern age.

We suspect that the "born-here citizen-here" principle is probably out of date for our era and should be seriously reviewed. Certainly the judicial result reached in the Oforji case offends any normal human's sense of justice. Either we want immigrants and new blood in America or not - the people of US should be free to decide this - but mothers and children should not be potentially separated in this manner. It is simply "un-American".

^Permalink : Andis Kaulins : 1/13/2004 10:09:00 PM

LAW PUNDIT 1/13/2004 01:41:00 AM [Home] [Print]

Executive Secrecy, Immigration Detainees and the FOIA

Executive Secrecy, Immigration Detainees and the FOIA

An article by Anne Gearan of the Associated Press at azstarnet.com reports that the US Supreme Court, in the case of Center for National Security Studies v. Justice Department [03-472], has denied without comment a petition for a writ of certiorari to review a ruling by the U.S. Court of Appeals for the District of Columbia in Center for National Security Studies, et al, v. U.S. Department of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003), which upheld Executive Secrecy with regard to "immigration detainees" detained by the Executive after 9/11. The denial of the writ allows the Court of Appeals decision to stand.

See the DOJ brief here.

This holding by the US Supreme Court adheres to a line of decision-making which we have predicted that the U.S. Supreme Court will take in the detainee cases, intelligently avoiding any direct confrontation with the executive powers of the President under the Constitution.

Simply as a legal matter, it was easier for the Supreme Court to reject this case, since no habeas corpus was involved as an issue - contrary to other upcoming cases, but rather involved the question of the application of Section 7(A) of the Freedom of Information Act which authorizes the withholding of:

"records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings."

As stated in the DOJ Reference Guide:

Ctr. for Nat'l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472) -- 2-1 decision upholding nondisclosure of the identities and other information pertaining to all immigration detainees taken into custody in the government's post-9/11 terrorist investigation, including the identities of their attorneys; extending the courts' "long-recognized deference to the executive on national security issues" to Exemption 7(A) "in appropriate cases, such as this one"; concluding that disclosure "would give terrorist organizations a composite picture of the government investigation" and thus enable them to impede it through witness intimidation, evidence tampering, evasion, and the formulation of "counter-efforts."

^Permalink : Andis Kaulins : 1/13/2004 01:41:00 AM

LAW PUNDIT Monday, January 12, 2004 1/12/2004 02:47:00 PM [Home] [Print]

Has the CAN-SPAM Act made things worse? - fat, fatter, fattest?

Has the CAN-SPAM Act made things worse? - fat, fatter, fattest?

The US CAN-SPAM Act

Stephen's Web, a useful site with a blog reference tool - highly recommended - links to a January 9, 2004 VNUnet.com article by Dinah Greek entitled "New laws will make spam worse", in which Dinah Greek reiterates her prediction that the U.S. CAN-SPAM Act - which works under the opt-out principle - will make things worse, not better, as far as the amount of spam is concerned, and points to recent statistics that spam has already increased and not decreased in 2004. In other words, our mailboxes will get fatter and fatter with unwanted e-mail - Spam in the fridge and Spam in the mailbox. [Note- In a previous posting, we were initially pleased that AOL in 2004 was marking most spam as [SPAM], which we thought was a step forward - but in fact, the number of e-mails so marked is now in fact increasing....]

The European Privacy and Communications Directive

Similarly ineffective appears to be The European Privacy and Communications Directive which works under the opt-in principle. Apparently, whether opt-in or opt-out, it appears to make no difference to the spammers.

The "Hampering" Courts

Not only is the effectiveness of legislative measures being questioned, but the courts are doing their share in making it hard to get at spammers legally, as demonstrated e.g. by a recent suit by AOL, a suit which was thrown out of court on the grounds that asserting jurisdiction in Virginia over the defendants in Florida would violate the defendants' due process rights because the sued "Florida computer technicians whose business maintained email systems and computer networks for customers [i.e. the big-time spammers]" ... "did [themselves] not actually direct electronic activity into Virginia, and did not intend specifically to engage in business in Virginia."

LawPundit has trouble with that decision as a matter of logic. Does this mean that those who would put up artillery on a State's borders - just for fun of course and without any malicious intent - would be immune from prosecution and only those physical persons who actually fired the weapons into an adjoining State would be the only ones over whom we could exercise interstate jurisdiction? Is this the ultimate result of the short-sighted and provincial gyrations of modern narrow-minded and apparently legally unsophisticated States' Rights advocates, whether in the legislatures or the courts?

Is it possible that our legislative and judiciary system is overtaxed with the issues of the digital age? Do individual legislators and judges have anywhere near the requisite information technology competence to deal with modern technological questions when these are brought to the vote or brought before the bench? What about out-dated judicial doctrines as such? Are old-fashioned concepts of jurisdiction completely out of place in dealing with the internet? These are the kinds of things that LawPundit would expect to be finding discussed through the leadership function of the US Supreme Court - but do we see any signs of that kind of leadership in the judiciary? or in Congress?

The Legal System is Behind the Times

The LawPundit view is that the legislative and judicial branches of government are simply out of step with the times. This applies particularly to the provincial State legislatures, populated with many local heroes wanting to run the show in their local regions, as in days of yore, BEFORE the United States became a powerful federalist nation under a strong central government. We see this in the apparent legislative, judicial and executive helplessness against spam, we see it in the false judicial application of patent laws to software, we see it in the partially hapless legislation and confused court decisions relating to the copying of music and file-sharing, and we see it in the antiquated handling of copyright issues. Rather than establishing certainty and order, which is one job of the legislative and judicial branches of government, we have on the contrary - as in the case of proliferating spam - a great deal of legal chaos and confusion.

The Absurdity of the Current Criminal Law System

Indeed, LawPundit is increasingly and greatly puzzled and estranged by the unfurling machinations of a legal system whereby a 68-year corporate executive - just recently - was put into PRISON for 15 months for not properly labeling the fat content of his donuts - while at the same time we are permitting hordes of fraudulent crooks and criminals and their accessories - scot-free - to daily fill our mail boxes with false, misleading and in fact even dangerous e-mails that are MUCH WORSE in their illicit nature than delicious donuts which are fatter than expected - and which, at least, are digestible. Much of what we receive in our spam e-mails is NOT digestible, by any means.

Curiously, the donut executive's greatest failing - which brought him into the jaws of the criminal law - was that his donuts "tasted too good" to some customers, who then began to doubt their low-fat content. The mistake that he made was in giving the public too much of what it wanted - for which he was punished. Did the punishment "fit" the crime? We do not think so. The key, of course - as the spammers have learned - is to stuff consumers full of what they do not want - and presto - not a hair on their heads will be touched by the government.

In any case, the American people and the youth of America are the fattest on this planet - not only by the bulges on their mailboxes but also by their physical being - but do not blame this "fattest title" on the one donut executive.

Rather, we must look to the culture (and its mirrored legal culture) for indications of where that culture should be changed and improved. This also applies to the United Kingdom.

Via Overlawyered via Armavirumque (Stefan Beck)
and initially Larry Willmore, we quote Willmore's thought page, quoting Theodore Dalrymple in the National Post through a link which is no longer operative (click the original link which takes one to the general Canada.com network), so thank you Larry for this text:

"Thought du jour: obesity

[The common man] is, at heart, ... the good savage whose innate decency was subverted by social influences such as giant food companies. Left to his own devices, the denizen of hamburger restaurants would eat fresh carrots and brown rice, his natural choices. He wouldn't want the horrible muck provided by fast food chains and processed food companies.

This picture is of a world in which humanity as a whole is good, but is so innocent that it is diverted from the paths of righteousness by a few evilly disposed persons such as the directors of food companies. .... Alas, reality is less flattering to our self-esteem.

In Britain, the second fattest country in the world after the United States, about half of households do not have a dining table. Many young people never learn to eat in a social way: .... People eat when they feel so inclined, by finding whatever there happens to be in the fridge and by heating it up ....

Theodore Dalrymple, "The devil's food cake made me do it", National Post, 5 July 2003.
[Theodore Dalrymple is a British physician who works in an inner-city hospital.]"

Put another way, we have a donut executive in prison who - like the fabled Jesus - is basically serving time for OUR sins.

Now what I think would mark a good legal system would be if the spammers were forced to do time for THEIR sins, and be made to work incessantly during their prison terms on anti-spam software solutions, whereas the donut executive should be released from prison and be instructed to do nutritional community work until the end of his sentence.

That would fit with my concepts of justice. As things now stand, the legal world is topsy-turvy.

[UPDATE: Here is a nice somewhat more detailed posting by Dan Fingerman with comments on specific provisions of the CAN-SPAM Act.]

^Permalink : Andis Kaulins : 1/12/2004 02:47:00 PM

LAW PUNDIT Sunday, January 11, 2004 1/11/2004 10:12:00 PM [Home] [Print]

Prepaid Legal Plans - H.M.O. and Choosing a Lawyer

Legal Plans - H.M.O. and Choosing a Lawyer

Susan B. Garland has a January 11, 2004 article at the New York Times entitled "The H.M.O. Approach to Choosing a Lawyer", which focuses on the growth of prepaid legal services, known as "legal HMOs" which is a term historically taken from the abbreviation HMO for "health maintenance organization". (For various definitions of HMO see define: HMO at Google.com.

Interesting in the article was a story about a corporate executive planning to buy a house and having prepaid legal service coverage under his firm's legal benefit plan, provided by an insurance company.

To quote Garland:

"[The executive] was given a list of lawyers who specialized in real estate transactions; he interviewed several, reviewed their Web sites and chose one."

This again confirms that the design and quality of a lawyer's or law firm's website can be an important element in a client's choice of legal representation.

^Permalink : Andis Kaulins : 1/11/2004 10:12:00 PM

LAW PUNDIT 1/11/2004 08:14:00 PM [Home] [Print]

15 months in PRISON for "too much fat"

15 months in PRISON for "too much fat"

The weight watchers of the world should be dancing in the streets. The legal profession should be weeping.

The Curmudgeonly Clerk in "Food, Fraud & Litigation" tell us that the

"The Wall Street Journal reports that:
'Robert Ligon, a 68-year-old health-food executive, is scheduled to begin serving 15 months in a federal prison Tuesday. His crime: willfully mislabeling doughnuts as low-fat.'"

It is really rather pointless to put corporate executives into jail for misleading the public - after all, what corporation and what advertising does NOT do this? Certainly large monetary fines are in order, or even dissolution of companies, but prison?

Once again, I think we all in the law should review Herbert Packer's The Limits of the Criminal Sanction, and simply accept the fact that a criminal sanction for many things - especially putting people into jail for economic crimes such as this - has no rational effect on either perpetrator or victim, has as good as no deterrent effect and is just legal stupidity.

^Permalink : Andis Kaulins : 1/11/2004 08:14:00 PM

LAW PUNDIT 1/11/2004 04:16:00 PM [Home] [Print]

unbillable hours and "Go with God"

unbillable hours and "Go with God"

The "Go With God" posting at the unbillable hours blog has little to do with law - but, this being a Sunday - it has the potential to be one of the most popular blog postings ever. There is something in that very beautifully done piece of writing which touches so many bases about the "realities" of life that it is quite uncanny. Some of the comments to the posting are also worth reading. We did not realize that one can "turn scars into stars" (the phrase comes from Dr. Robert H Schuller) in this manner.

As a legal aside (sorry, could not resist this one): "Are the parents liable?" or was this "an act of God?"

^Permalink : Andis Kaulins : 1/11/2004 04:16:00 PM

LAW PUNDIT Thursday, January 08, 2004 1/08/2004 01:53:00 AM [Home] [Print]

Great Law Schools - "Advice" for Law Students - Socratic Method

Great Law Schools - "Advice" for Law Students - Socratic Method

To begin with, first see What Makes a Great Law School? by Tamar Frankel in the Boston University School of Law Working Paper Series, Public Law & Legal Theory, Working Paper No. 01-13. Hopefully, that article should reduce some of the competitive friction which sometimes exists between the law schools and should explain to some degree why things are the way they are as far as law schools are concerned.

Whether YOUR law school is a "great" law school in the last analysis, in the opinion of LawPundit, depends on YOU.
Nevertheless, the link below may contain some tips to improve YOUR law school experience.

"Advice" from gTexts

gTexts (Garrett Moritz) at this link contains thought-provoking "Advice for Law Students". [Note: The gTexts blog has moved in 2004 to http://www.gtexts.com/. As of January 7, 2004, the link used above still functioned.]

LawPundit is of the view that gTexts has a strong comprehension of the strengths of the Case Method and Socratic Method in law study, about which we would like to make some additional observations. But first - a nice explanation from Dr Robert H Woods, Jr, J.D.: in his article "'Order in the Virtual Law Classroom...Order in the Virtual Law Classroom': A Closer Look at American Law Schools in Cyberspace: Constructing Multiple Instructional Strategies for Effective Internet-based Legal Education" as published in JILT, Journal of Information, Law and Technology:

"At the heart of the case study method is the Socratic dialogue, where the instructor through rigorous question and answer actively encourages, prods, and manoeuvres students to analyze the facts, issues, rules of law, and reasoning behind the courts' decisions. In the process, the law professor may 'hide the ball', as it were, as knowledge of Black letter law is constructed, deconstructed, and re-constructed again via faculty-to-student and student-to-student exchanges designed to analyze and compare existing case law before synthesizing it with the whole . The case study method thus operates significantly in a constructivist learning environment, which places emphasis on relationships, collaboration, inquiry and student invention."

Some Thoughts on the Socratic Method from LawPundit

In the opinion of LawPundit, the Socratic Method - properly applied - is an excellent - but of course, not exclusive - learning tool. It is a method which we in modern times might dub "on-your-toes interactive learning", through which both the "discoursing participants" as well as the "spectating viewers" also learn (or can learn). This learning is done by trying to activate something called "critical thinking" (note - what is the difference between "thinking" and "critical thinking"?) and not by rote memorization of a string of alleged "facts", which in computer-speak is called "saving to the hard disk", i.e. which is nothing more than simple recordation.

Negative Aspects of the Socratic Method

There has been some negative discussion about the Socratic Method on some blawgs in the past, see e.g. here and here.

Of course, we readily admit that - as in any method of teaching - there are strengths and weaknesses to Socratic dialogue, and much in teaching is a matter of personal preference, modern developments in education and technology. Obviously, the Socratic Method should NOT involve teachers verbally browbeating weaker students into submission - and those teachers who have done this have not understood the purpose or "art" of this method. We can also agree that there ARE subjects, such as "Evidence", where the Socratic Method is not always appropriate for the entire semester of study. In addition, there are "clinical" courses such as the LawPundit himself teaches, i.e. legal research and legal writing, which are "nuts and bolts" practical law and which are not conducive to Socratic dialogue.

So what is the place of Socratic dialogue in law?

The Socratic Method prepares for "the Real World"

The real world is not "clear as glass" in many respects and the law is therefore also seldom "absolutely clear". Even the commandment against killing is seen by most people to allow for exceptions in the case of war. And what about self-defense? Hence, the law is seldom black and white - rather, it is mostly grey. There are always ... exceptions.

If there were no grey areas in fact or in law, we would not need lawyers or judges. Rather, in any dispute, for example, we could just plug "facts" and "laws" into a computer programmed for decision-making and wait for print-outs of the resulting decision. But this would be naive. Real life can not be that easily compartmentalized. Real life is marked by many options, uncertainties, and grey areas. It is the view of LawPundit that the Socratic Method is the best way of teaching young minds how to deal with these indeterminate realities - i.e. ACTIVE rather than passive learning.

But - may I say - this is simply our opinion at LawPundit. Others may not share it.

Positive Aspects of the Socratic Method

Reasons for supporting the Socratic Method in teaching are found in these articles for further reading:

See Does the Socratic Method Work? - An Experiment
See Chicago Law School
See Socratic Teaching
See Education and Teaching
See productive discomfort
See what do you think?.

^Permalink : Andis Kaulins : 1/08/2004 01:53:00 AM

LAW PUNDIT Wednesday, January 07, 2004 1/07/2004 10:10:00 PM [Home] [Print]

Citing to Blawgs in Law Journals and Law Reviews

Citing to Blawgs in Law Journals and Law Reviews

ProfessorBainbridge.com Blog Cited in Yale Law Journal - A First?

Via the blawg en banc and Greg Goelzhauser in "Citing to Blogs" we have become aware that Professor Bainbridge's blog has been cited in the Yale Law Journal by Professor Guhan Subramanian (Law Professor at Harvard) in 113 Yale L.J. 621, 629 n.43 (2003), perhaps, as the blog en banc calls it, "the first blog citation in a major law review".
That could be.

How far does this go?

Goelzhauser asks the question:

"How far does this go? Are only well-respected law professors eligible for citation? Only in their specialty areas? Of course, there are no hard answers to these questions.... It would be interesting to hear how authors/bloggers feel about the possibility."

As a teacher of legal research and legal writing in Anglo-American Law at Trier Law School, it would be my opinion that "anything written" can be cited. It just depends on who is being cited and what the blog is being cited for.

Professor Brainbridge's blog is being cited due to his particular capacity as an expert on corporation law at UCLA Law School, i.e. Bainbridge is a legal "authority" with respect to the question under consideration by the judges. They also have no reason to assign less reliability to a blog posting by Bainbridge than to a law journal article by him.

Should Blawgs be Cited?

Why should a blog be any less "citable" than a journal or any other written source? However, as Shakespeare wrote:

"The evil that men do lives after them; The good is oft interred with their bones."

Therefore, take care what you put into print - especially if the whole world can read it.
The good things that are written will be easily forgotten. The careless, bad things are likely to be remembered.

When do we cite "academic" legal authorities?

Here in Germany recourse to "academic" authorities in interpreting the law is in fact far more prevalent than in common law countries such as the USA. This is because German law is based on Roman law, which is statutory "civil" law.

Common Law and Civil Law

Generally, in this regard, it might pay to take a look at this book review by Michelle D. Deardorff of
Antonin Scalia's book, A Matter of Interpretation: Federal Courts and the Law, published by The University Center for Human Values Series, Princeton, N.J., Princeton University Press, 1997,
where it is noted that:

"The 1997 book, A Matter of Interpretation: Federal Courts and the Law, is framed around a clear, accessible essay entitled "Common-Law Courts in a Civil-Law System The Role of United States Federal Courts in Interpreting the Constitution and Laws," written by Supreme Court Justice Antonin Scalia. The second section of the book is composed of responses to Justice Scalia's essay by such diverse, prominent scholars as Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; edited by Amy Gutmann, the book concludes with Justice Scalia's response to each comment."

As Deardorff writes further:

"In her comments, Professor Mary Ann Glendon, focuses on two primary questions, "Have civil-law lawyers and judges fared any better than we Americans in the maze of twentieth-century legal materials? If so, what can we learn from their experience?" (p. 95). Her essay examines the different ways in which common law systems (e.g., United States) and civil law systems (e.g., Germany) made the transition to statutory legal systems. She argues that the primary difference has been one of deliberativeness, in that many civil-law systems recognized the seriousness of a change to a more textual- based system and consequently, focused on forming a clear judicial community of academics, attorneys, and judges with shared interpretory values. Professor Glendon notes that while in the United States initially we had shared values, such as stare decisis, but even its role is fading and there is no contemporary interpretory community."

So, as one can see, the standing of interpretative authorities is also dependent upon the legal system used.

Footnote: Check Your Links

Footnote: The citation irony is that Bainbridge's own link has a glitch and does not work when clicked. It is cited online as
http:// www.professorbainbridge.com/2003/10/delawares_predi.html (last visited January 7, 2004)
but it should be
http://www.professorbainbridge.com/2003/10/delawares_predi.html
i.e. in the course of writing the blog a space has crept in after the double forward slashes.
This kind of typo is not unusual - but we all have to be careful to check our links when we cite sources online, so that this is a lesson for everyone, academics and students alike.

^Permalink : Andis Kaulins : 1/07/2004 10:10:00 PM

LAW PUNDIT Monday, January 05, 2004 1/05/2004 05:27:00 PM [Home] [Print]

Proper Legal Citation of URLs i.e. Internet Links

Proper Legal Citation of URLs i.e. Internet Links

In the case of RIAA v. Verizon,
United States Court of Appeals, District of Columbia Circuit
Argued September 16, 2003 Decided December 19, 2003, No. 03-7015

an Internet URL, i.e. an Internet Link is cited as follows:

See John Borland, File Swapping Shifts Up a Gear (May 27, 2003), available at http://news.com.com/2100–1026–1009742.html, (last visited December 2, 2003).

It might be advisable for important links on blogs (and especially blawgs, i.e. legal blogs) to also be marked in the above manner, especially the date the link was last visited, since, alas, links and website pages do change over time.

^Permalink : Andis Kaulins : 1/05/2004 05:27:00 PM

LAW PUNDIT Saturday, January 03, 2004 1/03/2004 02:43:00 PM [Home] [Print]

Join the Foundation for a Free Information Infrastructure

Join the Foundation for a Free Information Infrastructure

Via the Lenz Blog, we urge you all to either join as a member (costs a membership fee) or become a "supporter" of the Foundation for a Free Information Infrastructure (FFII) (which costs nothing) at the following website:

Foundation for a Free Information Infrastructure.

It is possible through the FFII, for example, to become a signatory to appeals against the patenting of software, etc., and similar technology freedom issues affecting the future of OUR digital world.

Take a look at this excellent site and discover for yourself where you stand.

^Permalink : Andis Kaulins : 1/03/2004 02:43:00 PM

....LawPundit