Nothing Is Obvious
It’s just Patently-O, but this and this bothers me.
Seriously, though. Is it really lawyers and judges’ place to make this kind of decision? I really don’t think so, simply because I respect what patents are ultimately trying to do.
Ok, it’s a little dated, but hey.
Killing them softly with his sweet opinion♪
This past Monday, the landmark patent law case, eBay v. MercExchange, was decided by the US Supreme Court. You can find the complete slip opinion here. Many other patent law blogs summarized the issue to its extremities and fine grain details, but you can look at it as one of the key battles between so-called patent trolls and big tech corporations in summary.
Surprisingly the Supreme Court came out with a fairly centrist opinion but ruled in favor of eBay (kind of) to vacate the appeals court decision. One of the axioms of the US Supreme Court in the mess that is patent law today was that each Supreme Court opinion messes with the overall structure, harming rather than helping patent litigators, prosecutors, investors and inventors. Why is that? It’s hard to say in short but it might have to do with making laws in the vacuum.
Thankfully this opinion isn’t likely to alter the landscape of law too much. While weakening what injunctions are for patent infringers today, the opinion seemed more corrective than authoritative. The normal elements of injunctive relief is still fully available as they were for decades, and at the discretion of the trial court. The two concurring opinions were very informative and Chief Justice Robert’s opinion re-nailed the opinion of the court:
“The decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.”
The standards, on that note, are:
“(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. “
The surprise is just how the Supreme Court justices couched their positions. It seemed that this is one thing that the various justices tend to agree with, given its unanimous decision with two heavily-joined concurrences. Probably slightly less than exciting, overall, was this case given the hype it had. And all is good.
Law of the Blog?
Do you think, for us American bloggers with our sites hosted in the US, with an English, non-discriminating (aside from subject matter) audience, are we entitled to our First Amendment rights? Do we violate copyrights by including caps, lyrics, quotes from other texts (commonly other blogs, news, wikis, etc)? How about music? Designs (like a WP theme)? How about flaming and things like that?
IMO they’re all valid questions–just where the line is drawn? Obviously there’s little in terms of previous instances where a court said something. Blogging is generally new. We all know the Internet is the super copyright infringement machine, and even in that area of law the dust is far from settling. The niche that bloggers belong to seems like the least of all worries. Just how marketable are blogs? I guess they are as long as you’re not comparing them to selling CDs and DVDs.
I don’t have any real answers. What I’m trying to get at is that are two opposite but converging perspectives to look at the issue: free speech versus copyright. At times these two views are in conflict, but that’s rare; usually they mind themselves. But just when should good faith and interest in free expression overcome commercial interests?
After all, ultimately as long as you’re not just doing detail summaries with screen caps, you are probably putting a lot of copyright-able material into your blog. That’s good. It’s important to cite back either with a simple text saying where, or a trackback, or whatever, when you cop something. It is good to avoid plagerism. But neither is the case we worry about usually; or rather, it’s the opposite. We don’t want to be just merely pawning off pretty pictures from anime to “generate a lot of site traffic” or merely retelling a textual by-the-book synopsis as a public resource. There may be places for that, but are those uses “fair”? Is the world a better place without blogs telling you what’s hot in Japan so you can infringe copyright in a smart and efficient manner?
I don’t know. But it’s good to look on the other side of the coin every now and then.
