August 31, 2003

Kazaa DMCA and Google

From Kazaa Owner Complains of Copyright Infringement — Chilling Effects Clearinghouse - Kazaa owners Sherman Networks have directed Google to block access to 15 sites that they maintain contain unauthorized copies or unauthorized derivatives of Kazaa Media Desktop (a peer to peer network sharing client). Ok, aside from the DMCA issues (which are huge…) I find it highly ironic that the makers of a p2p(peer to peer) sharing scheme are in essence leveling the exact same complaint against Google (a search engine) that was leveled against them by the RIAA: their service/software points to/finds/facilitates piracy. Doesn’t Sherman etc. think this action basically legitimizes the RIAA case against them?

As for Google… a search on google for Kazaa now has a note at the bottom (I would urge Google to put it at the top of the page):

“In response to a complaint we received under the Digital Millennium Copyright Act, we have removed 8 result(s) from this page. If you wish, you may read the DMCA complaint for these removed results.”

complete with a link to the page listing the complaint and so listing the missing results.

Listening to: Sixpence None The Richer - Kiss Me
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Microsoft's patent woes continue

It seems like Microsoft just isn’t going to have an easy year. A whole raft of lawsuits against them are finally beginning to get to court after being on hold while the DOJ case was settled. Last week Microsoft was in Federal Court in Baltimore for a Public Hearing. is suing Microsoft for patent infringement regarding the audio and video streaming technologies which Burst holds 37 patents on. According to Burst Microsoft misappropriated trade secrets from them during two years of failed negotiations for Microsoft to license the technology. Burst further alleges that Microsoft anticompetitive damaged Burst, violating Federal and state anti-trust laws. Up to last week it looks like the standard legal wrangling: Microsoft files a motion for dismissal, Burst opposes Microsoft’s motion, Judge decides against dismissal, Microsoft files to exclude factual findings from the DOJ case (Collateral Estoppel) from this one (in essence trying to force Burst to re-argue/prove every point from that case that applies to this one), Burst defends Collateral Estoppel, Judge rules to allow Collateral Estoppel, but denies Burst’s filing for partial summary judgment. This week however at the hearing….

(Summarizing from Robert Cringely)

“The hearing came about because Burst felt Microsoft was not divulging all the documents it was supposed to as part of the discovery phase of the case… Among other things, Burst asked for copies of all Microsoft e-mail messages concerning Burst during and shortly after the time when the companies were trying to negotiate a license for Microsoft to use Burst’s intellectual property.

“Microsoft handed over the e-mail messages on a disk, and when Burst’s lawyers had printed all the messages they filled 140 boxes. That’s a lot of messages, but not surprising for Microsoft, where the business culture of the company literally happens on e-mail.

“When Burst’s lawyers put the messages in order by date and time, they claim to have noticed a peculiar phenomenon. There were literally no messages from approximately one week before until about a month after all seven meetings between the two companies. This meant that either Microsoft completely suspended its corporate e-mail culture for an aggregate period of 35 weeks, or there were messages that had been sent and received at Microsoft, but not divulged to Burst.”

Come on, lets be real, this is precisely the time that email activity will pick up and not insignificantly either. Anyone who has been in an e-mail culture corporation knows this. Before the meetings there are last minute meeting arrangements, hotel/flight/meeting room/equipment confirmations, last minute strategy notes, presentation collateral finalizations, and a whole raft of other insignificant and exceedingly significant details are confirmed and ironed out. During any meeting lasting over an hour there are often e-mails sent and received during breaks/lunch/etc for guidance, key revelations etc between meeting attendees and their superiors or peers not able to be in the meeting. And after a meeting…well, the email traffic relating to the meeting or company would increase at least 2 fold as discussions about the opposition, key points raised, how to solidify position,…the list goes on. Anyone who has been in an environment where e-mail is used as a vital communication tool (such as Microsoft) will recognize that this is a glaring hole, some companies I’ve worked at nothing is final until it has been confirmed in email.

Microsoft acknowledged the gaps and claimed the messages were erased because Burst and their technology were uninteresting. Excuse me? Seven meetings over a period of over a year to figure out that Burst was uninteresting? Seems the Judge agrees: his order to Microsoft was to produce the emails, doesn’t matter what it takes, produce them or the judge will make it clear to the jury that Microsoft has withheld and destroyed evidence material to the trial. OUCH!

Microsoft nearly got away with this one. After Microsoft (allegedly) turned Burst’s other clients away from Burst, the company shriveled up to only 2 employees. Even with only 2 employees additional funding was required and secured to last this long. The lawyers representing Burst in this case are doing it on a contingency basis, assuming all the financial burden in hopes for a successful finding, in which case they would take the lion’s share of any damages. Like in the Eolas case this seems for Burst to be as much a case of principles as it is financial gains.

What’s interesting is that it appears that Microsoft has in essence cut it’s own throat on in this case already. Produce no emails and the jury will be informed they destroyed evidence, and what Jury today would find for them in that situation especially post Enron. Produce the e-mails and (I am suspecting) they already know that their case is lost then, why else would all copies of the e-mails have been erased. 

Lesson to be learned from all of this (besides the obvious blatantly anti-Microsoft themes):

For Microsoft…
it would have been far cheaper to buy Burst for $250 Million ( or even far more) and secure 37 international patents that wou grant you a limited MONOPOLY than to lose one lawsuit, because Burst was just to determined to not die. If this case is decided in Burst’s favor the settlement could prove to be far greater than the one in the Eolas case. (Which with interest acruing is already at $600 million and by the time all post trial work and appeals are done could be well over $1 billion.)

And Lesson for the rest of us:

“…an NDA is only as good as the integrity of the company signing it,” cautions Richard Lang, CEO of, in Santa Rosa, Calif. In 2000, Burst became an official partner of Microsoft Corp. The company signed an NDA and shared details of its patented video-delivery technology with the software giant.

It’s going to be a long year for Microsoft, who it seems is not doing everything they can to win the race, but rather everything they can not to lose it. Subtle but very important difference. 

Listening to: Randy Travis - It Was Just a Matter of Time - Whisper My Name
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Do it yourself Lavalamp

How to Make Lava Lamps - Oozing Goo

Listening to: B - B - King - Live At The Apollo - Peace To The World
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August 30, 2003

Disturbing, but not really surprising.

Listening to: Joe Satriani - Strange Beautiful Music - You Saved My Life
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The Real Underground

An excellent use of flash, this page showing a representaion of Beck’s original map from 1933, a 2003 version of the map and a geographically accurate version of the map, allowing the user to morph the lines between each version of the map to see the full relationship. Beck’s daring departure from standard cartographic methods in 1931 has remained to this day a major influence on design in general and maps in particular. New York, Tokyo, Washington DC and many other major cities around the world use maps with similar design (both informationally and stylistaclly) to represent their public transportation networks.

Listening to: The Chordettes - Lollipop
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Microsoft lobbies for repeal of patents for software!

Ok, not really, and they have far too many patents in their arsenal to pursue that course…but they were recently on the receiving end of some major David vs. Goliath action. Instead of a stone for a weapon, Eolas used a patent governing plugins. The federal court jury found in favor of Eolas and the University of California (Eolas was founded as a spinoff from CEO Michael Doyle’s UC resarch group - the patent in question lists Dr. Doyle as one of the inventors and UC Oakland as the assignee) and decided that Microsoft must pay $520.6 milion to them in damages.

“Administrators of the University of California, which holds the patent and licensed the technology exclusively to Doyle’s company, applauded the decision.

‘“This verdict is a significant landmark in defining and protecting Internet technology whose benefits literally reach the whole world,” James E. Holst, the university’s general counsel, said in a statement. “As a public institution that reinvests its licensing revenue in its larger research mission, we are gratified by the jury’s recognition that UC and Eolas must be fairly compensated for use of its patented technology.”’

Of course the injunction against Microsoft’s continued use of plug-in technology that relies on or builds upon the patent could have some, well, interesting effects. Obviously, while Microsoft announced that they will appeal the decision, they have to re-design their Internet Explorer product extensively. The amount of embedded web content that this will impact is monstrous. Basically any content on a web page (such as video, animation, audio, Active-X content, and yes this would include flash) that Explorer relies on a plug-in to show in the browser window would be unviewable in the new Internet Explorer. Finally no more looping, pulsing flash advertisements! Another possible positive note; as long as they’re having to rebuild IE from the ground up (well just about at least) they might as well finally make a version that is web standards compliant. So the next time you allow Microsoft onto your machine to update Internet Explorer, you might just find that alot of web sites stop working like they used to. Eolas seems so far to be unwilling to license their technology to Microsoft, but I suspect that if the appeals process fails Microsoft will offer to pay, and probably pay dearly to get a license from Eolas. I’m not sure that Eolas will give them one though, not if an email between Dr. Doyle and PBS’s Robert X. Cringley is any indication:

“…What if we were to just say no? Or, what if some other big player were to acquire or merge with us? What if only one best-of-breed browser could run embedded plug-ins, applets, ActiveX controls, or anything like them, and it wasn’t IE? How competitive would the other browsers be without those capabilities? How would that change the current dynamics in the Industry?

“…Just think of how we could use this patent to re-invigorate and expand the competitive landscape in this recently-moribund industry. What if we could do what the DOJ couldn’t, and in the process make Eolas and everybody else, possibly excluding MS, richer? Wouldn’t Eolas stand to profit more in such a scenario than any kind of pre-trial settlement could provide? Wouldn’t everybody else?”

Of course speaking of the case and web standards…there are a number of “small” nagging issues unresolved as yet from this case:the web and the other browsers. As of yet no one else has heard anything from Eolas regarding any of the other browsers who use plug-ins (Mozilla, Apple, Opera) In the mean time the W3C called an Ad Hoc Meeting to discuss the recent court decision, and what impact this will have on the web. Microsoft reportedly presented several options it is considering which were discussed. A public mailing list was set up to facilitate communications between all interested parties.

So right now Microsoft is moving ahead to comply with the court ruling. Everyone else is waiting. And this all comes to pass because of patents on software, a monster the industry helped create in the 80’s, which the PTO has never had the expertise or manpower examine thuroughly, and have absolutely no possible hope of straightening out now. Ironically this comes on the eve of EUs vote on allowing software and business practises to be patented. Hmmm… as I recall Microsoft was a proponant of that… wonder if they’ll change their tune and support the currently legislated EU patent law - “mathematical methods, schemes and rules for mental activity, methods of doing business and programs for computers are not patentable inventions.”

Listening to: The Katinas - Eagles Wings
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August 29, 2003

SCOpes Monkey Trial has published a lightweight overview of the SCO fight. They compare it to the Scopes Monkey Trail of 1925, with SCO the part of the fundamentalist - “buttoned-down types clinging to proprietary and closed computer systems.” 

For more information on the SCO issue I suggest reading Halloween IX,’s summary/response. Granted it is from the open source side of the fight, but in the tradition of open source, they make strong arguements for their position and provide generous links to independent sources of information to back up their arguments.

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RIAA Scorched Earth Campaign

GrepLaw | Jane Doe, $150K/download, and Using the Color of Law: an interview with Glenn Peterson

Glen Peterson is the lawyer representing “Jane Doe” in a fight against RIAA. In an interesting interview at Greplaw, Mr. Peterson provides some insight on a number of the case’s points. A case in which he aims to show the unconstitutionality of the RIAA’s approach and it’s violation of privacy and due process rights:
“…the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals.”

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August 28, 2003

1 in 5 are public domain!

Eliot Landrum recently put up an improved version of BookMagazines Best Selling Classics list. Eliot has added the date of copyright expiration to the list. Interestingly, 20% of these books are already in the public domain. Unfortunately the next book from this list that will enter the public domain is The Great Gatsby in 2020. So it’ll be at least another 16 years before another one of these books can be found at Project Gutenberg.

I’ll have to wait to create a handmade art-binding edition of The Hobbit until I’m over 64 years old. Of course considering that it was originally published when my Grandfather was still wet behind the ears…

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