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Biggest IP cases of 2002 101

scubacuda writes "Law.com's article, The Biggest IP Cases of 2002, has a nice summary of some of the intellectual property cases that have caught our attention this last year. Of particular interest to slashdotters: Kelly v. Arriba Soft Corp. (regarding Arriba's visual search engine), Enzo Biochem Inc. v. Gen-Probe Inc. (regarding a gene patent being invalid because it did not meet the written description requirement), an Illinois federal court injunction against Aimster, United States v. Elcom Ltd a/k/a Elcomsoft Co. Ltd. , and Playboy Enterprises Inc. v. Welles (regarding Playmate of the Year, Terri Welles, using Playboy's marks and metatags on her website)."
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Biggest IP cases of 2002

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  • I am getting tired of
    "Playboy's biggest breasts of the year"
    etc
  • somehow.... (Score:1, Offtopic)

    by Anonymous Coward
    ....i think all discussion on this article will center around that Playboy Playmate.
    • by BabyDave ( 575083 ) on Sunday December 29, 2002 @01:57PM (#4977257)

      Tsk! I'm insulted that you think all slashdotters are porn-obsessed losers. Can't we get away from this sort of stereotype?

      [5 seconds later]

      Of course, it would be unfair not to be fully aware of both sides of the argument, so I'll have to thoroughly inspect her website. Purely for research purposes, you understand ...

      • Re:somehow.... (Score:2, Interesting)

        by Slashdotess ( 605550 )
        At first I was relieved to see no actual nudity on the site, until I found this [terriwelles.com].

        At least it's tastefull.


        • New plan: link to naked women, get karma. Is it working?

        • Actually your example isn't *quite* "actual nudity."

          These pictures are in the Playboy mold of certain unspoken rules over what can be shown and what should be airbrushed, and so on. The rules have relaxed over the decades, I suppose in pace with social mores.

          This [terriwelles.com] kind of photo shows less but IMHO is less tasteful.

          Of course, here we are being suckered into the poster's prediction of degeneracy.
          • I don't know.. Looks rather tasteful to me. Oh, wait. I'm confusing "tasteful" and "tasty" again.

            (Seriously, not my type. But couldn't resist. =] )

            -Sara
            • (Seriously, not my type. But couldn't resist. =] )


              Methinks she doth protest too much.

              Yes, yes, I know what you mean. Funny thing, in college we left a copy of Playboy out on the coffee table -- adventursome as we were -- and the only people who picked it up were women, to offer some critique or another. As for lesbians, it is my understanding Playboy's not really pitched at them. Or maybe you know that. Not to judge. There's nothing wrong with it. Let's just say I won't ask your type. :)

              P.S. Not my type either. Can't even spell.
              • Hehe by "not my type" I meant "Probably doesn't have root privs on one or more machines, and thinks *nix is a relative to one of the Charlie Brown characters." Oh, and she's a bit heavy.

                Put a brain in her, and throw her on a treadmill, then get back to me. =]

                -Sara
                • Put a brain in her, and throw her on a treadmill, then get back to me. =]

                  How do you know you're her type? See that's the thing with centerfolds, everyone assumed they're available.....

                  A bit heavy? Really? I'll go back and study... (kidding!)

                  Oh, are we off-topic here or something? How about that trademark problem?
        • With apologies to those that have already looked at the place in my .sig... you can find your sex here, but there is no nudity: your sex [tilegarden.com].

          And the parent's post's .sig was almost relavent. If only it said "Beware of all enterprises that require *no* clothes.".

    • When I saw this excerpt, I wondered whether there was a more mundane sort of link that covered more routine and basic regulatory issues for small web hosting companies who deal with large telcos. For example, if a spammer successfully sends spam through a small web hosting company's mail server across the circuits of several large telcos, may any or all of the telcos respond by blocking ALL traffic to and from the entire mail server from its ciruits? Is doing so be fair or unfair? (i.e., worth it to get rid of the spam?) What procedural mechanisms exist to resolve any disputes which cannot be resolved informally? The FTC and related agencies are available for consumer complaints but what about small companies?
    • hmm.. she's not even that good looking.
      I'm a geek, spent too long in doors. me thinks....

    • by Anonymous Coward
      Slashdot
      Nudes for nerds. Pr0n that matters.
  • Terri Welles (Score:1, Offtopic)

    by MacAndrew ( 463832 )
    Isn't this woman setting herself up for an obsessive stalker? I understand she wants to make money off her birthday looks, fine, and it wouldn't be her fault if/when some nutcase targets her, but the risk of harassment is huge given that her identity is so clearly established and the website purports to sell a way to get "close" to her.

    As for typing into the Playboy mark, whatever. I suppose it makes your attractiveness prestigious?
  • ...each passing year that the DMCA is up and 'legal', there will be more and more such cases (and abuses). 2003 will put 2002 to shame.
  • Just remember this (Score:2, Insightful)

    by wiggys ( 621350 )
    The law is an ass. (which by implication must mean it's best not to feed it or it will shit on you.)
  • by divec ( 48748 ) on Sunday December 29, 2002 @02:08PM (#4977306) Homepage
    The ongoing [aaronsw.com] case against the retroactive extension of copyright duration [eldred.cc] is also very important to many people, including The Mutopia Project [mutopiaproject.org]. Though of course, which cases are most important depends on your point of view.
    • Eldred is a very interesting case. I'm optimistic the retroactive portion of the law stands a 50:50 chance of being struck down, despite the Court's conservatism and traditional deference to Congress in similar matters. As for prospective copyright terms, I really doubt the court will intervene, because the life+70/95 terms are not obviously unreasonable, esp. when compared to law in other countries -- even if they do seem a tad long as a matter of judgment.

      EFF has done a nice job collecting legal materials as its website, useful as a reference even if one disagrees with their position.

      What to make some money while testing your legal and psychic prowess? Try this contest [lawpsided.com].
      • MacAndrew wrote: "because the life+70/95 terms are not obviously unreasonable, esp. when compared to law in other countries ..."

        I wonder if you know any other country having a longer term than the US (life+70/95)? To the best of my knowledge all other countries have had lower terms. Those that have changed have done so after US "nudging". Only one country, Australia has publicly stated they will not increase it over 70, India has 60 years limit, and Taiwan has refused to accept US demands to increase it to 95 years.
        • by MacAndrew ( 463832 ) on Sunday December 29, 2002 @03:01PM (#4977543) Homepage
          Yes, but just a couple. Some very industrious people compiled this list. [upenn.edu]

          Even were the US the longest, it would have to be so by a good margin to stick out. Again, I don't necessarily think the current terms are appropriate. Judge Posner has criticized them well, and noted that the main problem is that because it is difficult to make money off materials in the public domain, there was little opposition to the Sonny Bono Act.
          • Thanks for the list.
            It seems to me that the Eldred v. Ashcroft is not so much a challenge to the number of years, but rather to the very right of Congress to make such extensions indefinitely.
            Lawrence Lessig, says:
            http://www.redherring.com/insider/2002/10/r oast-pi g-copyright-102202.html
            "The Constitution says that copyrights are to be "for limited Times." The framers initially set those "limited Times" to be quite short--14 years, renewable once. After a limited time, copyrighted work was to pass into the public domain--a lawyer-free zone where publishers and creators can draw upon creative work without fear of legal liability. This text, the challengers say, forbids the extension of existing terms."
            • by MacAndrew ( 463832 ) on Sunday December 29, 2002 @06:54PM (#4978493) Homepage
              Yep. There are two arguments in the quoted passage: First, that Congress has abused the meaning of "limited time"; second, that retroactive extensions of "existing terms" are prohibited. I'm sympathetic to the second, and think the first is for Congress not the courts.

              I do sort of wish the Court would intervene to say the term has gotten too long, but don't want a precedent like that for the Court to do so in other cases. Historical experience has been that although unchecked power of Congress is bad, the unreviewable power of the Court can be worse, as when it was busy invalidating the New Deal. Given precedent, I don't think th Court will, and I'd prefer we petition Congress, as has happened [com.com] with the DMCA.

              But who cares what I think -- here is the transcript [cubicmetercrystal.com] of the Oct. 9 oral argument, which discussion well describes the essentially simple dipute.
    • divec wrote: "The ongoing [aaronsw.com] case against the retroactive extension of copyright duration [eldred.cc] is also very important to many people.."

      I agree that eldred.cc [http://eon.law.harvard.edu/openlaw/] is a very important case, but it seems that the authors of the article have included only those cases where there is already a court decison.
    • It does not appear that the Sonny Bono Act furthers the purposes of copyright law for a number of reasons. First, the Act applies retroactively to subsisting works. Second, adding another extension to the 70 year period does not appear to add any further incentive to authors. Third, simply because we were trying to conform with other countries does not mean the Congress is immune from limitations placed on it by the Constitution. And finally, it appears that the law was passed more to protect corporate interests than the public.

      The constitution in Article I, 8 clause 8 says that "[t]o promote the Progress of Science and useful Arts" Congress may secure to authors and inventors the exclusive right to their writings and discoveries for "limited times." In other words, the founders noted that in order to create incentives for authors to create works, it was necessary to grant them an exclusive right for a limited time for the work they created. Otherwise, one could spend a great deal of time and skill creating a new work merely to have someone else make the profit. In applying the Sonny Bono Act to subsisting works, Congress appears to have broadened the grant of power given to them by the founders. For once the work has been created upon the existing notion of copyright protection, there is no longer the need to provide any incentive to the author. The founders appear to have conditioned Congress' ability to protect authored works for limited times to promote the useful Arts. Once that Art has been created, Congress has therefore fulfilled its duty in providing the incentive. A retroactive extension of the time period does not in any way affect the incentive to create a work that has already been created. Therefore, a retroactive extension of the copyright protection does not further the purposes of copyright law.

      Secondly, though Congress was granted the ability to determine what "limited times" means, there has to be some point at which Congress has overstepped its authority. Clearly, if Congress granted copyright protection for 900 years, it would be, by definition, a "limited time", but also be beyond what was needed to create an incentive for authors. Arguably, Congress' extension of the existing time period defeats the purpose of the limited time limitation if Congress is then again free to add another extension. Were Congress to continue such a practice, "limited times" would be in name only. Rather, it would be, in essence, an unlimited time. Therefore, there must be a point at which Congress can no longer grant an extension to an existing time period, especially for subsisting works.

      Thirdly, Congress cannot justify its actions based on international law. One of the reasons given for this law was to bring us up to the same time period as other European countries so we would receive the benefit of reciprocity. However, as noted during oral arguments, if France were to declare that all hate speech was unprotectable, Congress could not pass a law stating the same in the interest of international IP harmony.

      Finally, the biggest proponents of the Act are the giant media corporations who do not wish to see works they own to fall into the public domain. Quite a bit of lobbying and campaign contributions went into pressuring Congress to pass the Act. As such, one has to wonder, when pondering the retroactive aspects of the bill, whether the purpose was merely to reward and protect the giant media corporations. If this is the case, and I think one could make a good argument that it is so, then Congress is clearly not trying to "promote ... the useful Arts", but instead allow the corporations to continue exploiting the works for another twenty years.

      Therefore, taking into account that extending the period for subsisting works does nothing to promote the useful Arts, that continually extending the time period is, in essence, an unlimited time, and that a strong argument could be made that the Act was more about reward corporate interests than allowing works to fall into the public domain, it appears the Act does not further the purposes of copyright law.
  • Getting hits from a popular news site where tons of horny nerds hang out.

    Did you read Terri Welles' FAQ? LOL!
    Is it true that you have to sleep with Hef to get Playmate Of The Year?
    No, but, see previous question...heheheh

    Previous question:
    Who Chooses the Playmate of the Year.?
    Hef. He makes all the decisions in regards to Playmate of the Year. He takes into consideration the concensus of the fans, but, ultimately the decision is his.

  • by tcc ( 140386 ) on Sunday December 29, 2002 @02:11PM (#4977325) Homepage Journal

    Put a catchy IP trial header.
    Put it as a Top 10 list of the year
    Mix in Playboy in the summary

    Now that you've got everyone's attention, put one of the top playmates's personnal webpage address, and witness the explosive results :) Man I'd love to see the realtime specs on this one.
  • by X-BOX LIVE DEV TEAM ( 637223 ) on Sunday December 29, 2002 @02:12PM (#4977334)
    156.102.116.238

    *Crosses fingers*
    • But what is the biggest IP (that is attached to something)? Now, there is an Ask Slashdot for ya.
    • 156.102.116.238

      You're a terrorist! Trying to get us to DDoS Waste Management, Inc, part of our critical infrastructure!

      OrgName: Waste Management, Inc.
      OrgID: WASTEM-2

      NetRange: 156.102.0.0 - 156.102.255.255
      CIDR: 156.102.0.0/16
      NetName: WMIFTL
      NetHandle: NET-156-102-0-0-1
      Parent: NET-156-0-0-0-0
      NetType: Direct Assignment
      NameServer: ROMULUS.ACXIOM.COM
      NameServer: REMUS.ACXIOM.COM
      Comment:
      RegDate: 1991-12-24
      Updated: 2000-05-31
  • by Anonymous Coward
    Fuck this. I'm a lawyer, and it chafes my ass to see this godman stupid point made over and over again. Let me ask you this question: How many lawsuits do you think you saw in Soviet Russia?

    I mean it. Lawsuits are a sign of freedom. They're a sign that the government has decided to leave as much as possible to the free market and the law of contract and tort, and not to come in with a big wet fucking nanny agency. Which of course still generates work for lawyers through a regulatory practice, but less open and less honest work.

    Would you rather Big Fucking Brother came in and spent fifty fucking years drawing up a piece of legislation precisely specifiyng what information could and couldn't be collected? All stuffed with pork, and with a big-ass federal agency to enforce it? Or would you rather this was decided in terms of general principles of tort and property, in an open court?

    Well, I've got news for you, dickhead, the second method involves lawsuits. And those lawsuits have to be argued by lawyers. And that means that lawyers get rich. Check out the alternative any time you grudge us our big fucken' payoff. We don't get stock options, you know.

    It's like a free market, only it's better than a free market because the smartest lawyer with the best argument always wins. How many other industries are there where the best product always wins? Not software.

    Lawsuits are freedom. That's why we have so many in America, and they have so many government agencies in Europe.

    AC posting allows an educated professional like me to swear like a thug in public. I say fucken keep it.
    • by Anonymous Coward

      I mean it. Lawsuits are a sign of freedom. They're a sign that the government has decided to leave as much as possible to the free market and the law of contract and tort, and not to come in with a big wet fucking nanny agency.

      HA HA HA HA HA! You know, most of the people on here claiming they are lawyers are actually just losers who probably don't have any degree, let alone one in law. But YOU sir, I can state with nearly 100% certainty that you definitely ARE a lawyer! Because only a lawyer would say "lawsuits are freedom".

      No, lawsuits are not freedom. They are a waste of time and money for both sides, and in the untested waters of the internet, can have random or nonsensical outcomes.

      Too many lawsuits are a sign that the laws are not aligned with the wishes of the people, and with the design of a free market. Adam Smith said that "free markets are self-organizing" so if you need constant litigation to keep it going, something is wrong.

      Now, I'm not talking about all lawsuits. When someone violates a contract then the law should step in to uphold the free market.

      I'm talking specifically about 1) "unsigned" shrink-wrap contracts in software and other forms of information; 2) "intellectual property" laws like the DMCA that make tools illegal, and REMOVE the legal system from the equation when it comes to ISP take-downs; and 3) stupid patents that the government issues.

      A little mom-and-pop web site getting sued for patent infringement because they took the "Sears catalog" model of "putting pictures next to prices" is not freedom, in any sense of the word. That stuff is a MISTAKE, a pox on the free market system, a form of government regulation that should not be allowed. Patents should cover *tangible* and *novel* inventions.

      Sklyrov should never have been sued or even blinked at. Software that removes "protections" has been used since the 80's, and it didn't hurt the market back then, and it won't hurt it now.

      I really wouldn't feel "free" if I get a cease & desist because I wrote a program to copy DVDs. That's not a free society, that's a corporate-run society, probably not any better than the European-style socialism if it continues.

      Lawsuits are freedom!! Ha! Sounds like something Pres. Bush would say.

    • Legal Systems (Score:3, Insightful)

      (1) The best argument doesn't always win. Sometimes the lawyer who wins is the one who gets the ideologically sympathetic judge.

      Worse: in some systems, the lawyer who wins is the one who makes the biggest payoff to the judge ... or makes the most persuasive case that the judge's life hangs in the balance. Maybe these things don't happen (much) in America, but they do happen around the world (e.g. Colombia vs. Medellin cartel) and throughout history (e.g. late Roman republic).

      (2) What makes lawyers so deserving of Big Money? A living wage, sure ... but Big Money? To my thinking, it's teachers and garbage collectors who deserve the Big Money -- try running a civilzation without those professions, see how ugly things get real quick.

      Of course, some lawyers work pro bono for the causes in which they believe. That's not good capitalism, but it's truly heroic.

      That said, I agree with your point: better a free market legal system than a bloated bureaucracy.
    • by Anonymous Coward
      You are 100% Correct.

      I am a widely acknowledged expert in the field of marketing, and my job takes me to some of the most under-lawyered areas of Europe. It is anarchy over there. The Netherlands is particularly hard hit. Taxation is rampant, open drug taking in the street is commonplace, and anarchy prevails.

      It is the policy of my corporation that whenever we travel outside the US, if the group travelling is larger than four people, then we take our travelling attorney with us.

      The reason is simple. Lawsuits are freedom. And extra-territorial Lawsuits imply extra-territorial freedom.

      Our European cousins quake in their boots when we turn up for a meeting with our heavy hitting international corporate law guy.

      Thus we are able to ensure no socialistic un-american BS gets through into any contracts we sign.

      Rest assured that our new Linux distributions, Linuxmon and Linuxtrious will not run into any problems with limp-wristed left-wing whinging Europeans.

      Slap-em with a lawsuit. Pre-emptivly if possible.

      Lawyers are more than our Freedom, they are our inalienable constitutional right as Americans.

      Finally, I always remember the words of wisdom I recieved when working on a project closely tied to a large Redmond based software development company.

      Sue early, sue often.

      Truly savvy International Marketeers will employ the services of Kroll Associates and Control Risks Group, when dealing with Socialistic unstable regimes such as the United Kingdom, The Netherlands, France(especially) and Germany.

      Thank you Streetlawyer Man for your helpful and (in these Socialistic times in which we live in) potentially life-saving advice.

      Finally, I'm sick and tired of being held up to ridicule by snot-nosed 15 year old Linux zealots on this forum, when all I'm trying to do is give them a decent marketing perspective. Do you think I can sue VA, and Slashdot, and the so-called anonymous posters. ? Some of the comments really hurt my feelings. Money is not an object, since my marketing agency makes more $$$$$s than it can spend...
  • by KingAdrock ( 115014 ) on Sunday December 29, 2002 @02:17PM (#4977369) Journal
    you've slashdotted Playboy!!!
  • by Zombie ( 8332 ) on Sunday December 29, 2002 @02:20PM (#4977381) Homepage
    In Enzo Biochem Inc. v. Gen-Probe Inc. the court held that deposit of biological material in a public facility may satisfy the written-description requirement of the Patent Act

    Umm... so if I go take a dump in a public toilet, I own a patent on what I 'deposited'...? U.S. Patent law is insane!

  • I hit no when it asked to set a cookie, and now, right after the page loads, I get kicked over to: http://www.law.com/law/bad_cookie.html

    Dango.
  • Mo "Telephone call for IP Freely, IP Freely? IP Freely anyone? Oh dang kids! when I catch them!"
  • My signature has had the biggest IP of anyone here for months..
  • Perhaps I am asking the impossible here, but I believe it is up to folks like those who read /. to work towards the repeal of absurd laws like the DMCA, and others that result in these absurd law suits.

    Believe it or not, your congressmen, senators, and governors WILL LISTEN if they get enough feedback. What does that entail? It entails writing a coherent, calm (avoid flames), SNAIL MAIL letter and sending it to every government representative in your area. Here are some URLs that might help:

    http://www.house.gov/writerep/

    http://www.visi.com/juan/congress/

    Explain your opposition to laws like the DMCA, UCITA (http://www.gnu.org/philosophy/ucita.html), and similarly outrageous and disgusting laws.
  • by Animats ( 122034 ) on Sunday December 29, 2002 @04:08PM (#4977855) Homepage
    This year's copyright cases were quite favorable for the public domain.

    First, there's Kelly vs. AribaSoft, which held that thumbnail images are fair use. That's a good decision; it means we can have image indices, like Google's.

    Then there's Veeck v. Southern Bldg. Code Congress, regarding copyrights on the text of laws. Some states outsourced their building code creation to a semiprivate organization, which then claimed copyright on the text. The decision was clear: "'The law,' whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright." That's consistent with the general rule that when a government does something via a contractor, the government does not escape any obligations it would have if it did the job in-house. So you can scan in your local building code (or all the building codes in the country) and put it on line, even if some private company drafted the building code book.

  • by mbstone ( 457308 ) on Sunday December 29, 2002 @04:16PM (#4977888)
    I don't know if this is the biggest IP case of 2002, but it's one of the funniest: Mattel v. Universal [findlaw.com] [warning: pdf link], which concerns MCA Records' release of a single called "Barbie Girls" (which, of course, drew a lawsuit from lawsuit-happy Mattel). Judge Alex Kozinski, one of the most hilarious judicial opinion-writers of our time, called this "the battle between "speech-Zilla and trademark-Kong."
    • My favorite line was the judge's closing remark to MCA and Mattel...

      "The parties are advised to chill."
      • by Anonymous Coward
        here's that bit in full: VI After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a "social commentary [that was] not created or approved by the makers of the doll," a Mattel representative responded by saying, "That's unacceptable. . . . It's akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal." He later characterized the song as a "theft" of "another company's property." MCA filed a counterclaim for defamation based on the Mattel representative's use of the words "bank robber," "heist," "crime" and "theft." But all of these are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical 10502 MATTEL, INC. v. MCA RECORDS, INC. cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable "rhetorical hyperbole," Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.
  • A story used the words "Intellectual" when referring to "Terri Welles" site!
  • ...one's missing from the list. That one would be PanIP [panip.com] v. everybody [youmaybenext.com].
  • I made a spoof banner for LAW.COM [rjamestaylor.com] years ago. . .let the lawsuits begin!

  • The use of COBOL cripples the mind; its teaching should, therefore, be
    regarded as a criminal offence.
    -- Edsger W. Dijkstra, SIGPLAN Notices, Volume 17, Number 5

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