U.S. Patent Office officially rejects all sixteen Test.com patent claims

In another step forward for EFF's Patent Busting Project, the United States Patent and Trademark Office (PTO) last week issued an official rejection of all sixteen claims of the Test.com Internet test-taking method patent. The PTO granted re-examination last year after EFF submitted a petition that included several examples of prior art from a company called IntraLearn that had not previously been part of the PTO record. In light of that prior art, the PTO has now found that all sixteen of Test.com's claims obvious and non-patentable.

So what's next? Well, if Test.com wants to fight to save its patent, it's going to have to come up with some pretty clever arguments to somehow explain why it wasn't obvious to offer online test-taking in 1999, especially in light of the materials we submitted showing that companies like IntraLearn were already doing so. The other option is to somehow attempt to narrow their claims down to something innovative and non-obvious that they did invent. However, given the basic nature of the method and underlying technology, it's hard to imagine what, if anything, they could salvage. When they do respond, we'll make sure to post it on the site and let you decide for yourselves what to make of it.

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Should Yahoo! be able to patent "smart drag and drop"?

Help the US Patent Office reject a bogus patent claim

The Peer-To-Patent Project (PtP) is a new initiative by New York Law School's Do Tank in cooperation with the US Patent Office (USPTO) that uses open source and open knowledge techniques to help stop the deluge of bad software patents in America. The project works by posting new software patent applications that have been voluntarily submitted by their inventors and asking the public to comment on them. It has been endorsed by such open source and Internet luminaries as Tim O'Reilly and PJ from Groklaw.

Participants can point out prior art, explain technological concepts, or even opine on whether a certain technique is obvious (and thus non-patentable) or not. After two months of commenting, the top submissions are sent off to the Patent Office to help them decide whether or not to grant the patent.

There have been a series of new applications hitting the PtP site lately, some of which are pretty broad and outrageous. For example, check out this one from Yahoo! claiming to have patented "smart" drag-and-drop technology. Here's claim one:

A computer-implemented method for manipulating objects in a user interface, comprising:

• providing
  the user interface including a first interface object operable to be
  selected and moved within the user interface; and

• in response to selection and movement of the first interface object in the user interface, presenting at least one additional interface object in the user interface in proximity of the first interface object, each additional interface object representing a drop target with which the first interface object may be associated.

That's it. You drag, you drop, you infringe. Crazy, eh?

So what does this have to do with you? It's time to do something about it -- if you have examples of drag and drop interfaces that can invalidate this claim, go to the PtP site and submit them here (heads up: some registration required). Your submissions could mean the difference between Yahoo! getting a bogus patent or not. So, if you want to help fight an overbroad software patent, now is the time to act. There are only 31 days left to submit prior art to the USPTO on this patent.

(For additional help and information about participating, check out PtP's tutorial.)

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LimeWire on 1 in 3 Desktops World-Wide

Digital Music News and BigChampagne report that 36.4% of all PCs world-wide have LimeWire installed, based on system scans of 1.6 million machines.

This is worth noting for at least two reasons. First, it reminds everyone that when it comes to digital music, the main event is still P2P file-sharing, as it has been ever since Napster's debut in 1999. The entire apparatus of "legitimate" online digital music stores (like iTunes) remains just a drop in the bucket. And the entertainment industries still haven't taken any meaningful steps toward a collective licensing solution to monetize P2P, as we've been urging since 2004.

Second, this is yet another empirical nail in the DRM coffin. The Darknet remains robust and generally accessible to mainstream computer users. So long as consumers continue to have simple, easy ways to share digital content, once DRM has been stripped from a file, the now-liberated content flows freely. In other words, all it takes is one leak (and DRM always leaks). And in a world with easy sharing, fans don't need to bother with DRM-cracking tools, which means the DMCA's anti-circumvention provisions really aren't doing any good (but continue to do plenty of harm).

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Apple and Think Secret Settle Lawsuit

Today, Apple news site Think Secret announced it has settled Apple's lawsuit against it. While the terms have not been disclosed, "no sources were revealed and Think Secret will no longer be published."

The Think Secret suit, filed several years ago, sought to hold Think Secret liable for posting news about upcoming Apple products. It is was filed around the same time as the Apple v. Does lawsuit in which EFF successfully represented Apple Insider and Powerpage, but with a critical difference. In Apple v. Does, Apple sought the identities of the sources in Apple Insider and Powerpage, but in Apple v. Think Secret, Apple sought to hold the journalists directly liable.

EFF helped Think Secret find legal counsel, and, with the able assistance of attorney Terry Gross of Gross & Belsky, Think Secret filed a thoroughly researched and well written anti-SLAPP motion to strike the lawsuit on free speech grounds. The motion stopped Apple's lawsuit in its tracks, and raised the prospect that Apple would have had to pay Think Secret substantial sums for its legal fees. That motion has been pending since March 2005: the court hearing on that motion was repeatedly continued in stipulations signed by Apple, suggesting that Apple did not want a final ruling on the motion. While the Court has never ruled, we believe the motion was meritorious, and Apple was looking at the prospect an embarrassing and expensive loss.

We understand that Nick Ciarelli, the journalist who ran Think Secret, is "very satisfied" with the settlement. While it is sad that Think Secret will be closing its doors, since it was a valuable news source, Ciarelli is now free to move on to other things, and it would be surprising if Apple did not include a handsome payment as part of the settlement agreement (EFF has not seen and is not aware of the terms). We can only hope that this will be a powerful lesson to Apple, and the company will eventually learn not to sue its fans.

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minilinks for 2007-12-17

• ACLU files motion against Verizon in Oregon
  The ACLU wants its case against Verizon to be allowed to go
  forward, in light of recent court decisions.
  
• House vote on illegal images sweeps in Wi-Fi, websites
  The House approved a bill that would force anyone offering
  Wi-Fi access to report illegal or "obscene" images.
  
• Canadian songwriters and artists call for filesharing
  A Canadian proposal would legalize P2P networks and
  compensate artists when their music is shared.
  
• Shedding light on China's underground cybercrime economy
  A new study gives insight into how the black market in
  malware and cybercrime in China works.
  
• Google keeps what Ask.com erases
  Ask.com's AskEraser program is intended to protect your
  privacy by erasing your digital footprints -- but does it do
  what it promises?
  

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New FOIA Reform Bill Passes House & Senate

The Freedom of Information Act (FOIA) is a rare example of a government program that actually serves the public. Journalists, citizens, and all sorts of public interest organizations (EFF included) use FOIA to bring to light government documents and information that would otherwise remain hidden from public view.

But FOIA’s effectiveness has declined in recent years. A report released in July showed that FOIA requests were increasingly getting stuck in bureaucratic limbo -- some for as long as 20 years! And after the September 11 attacks, then-Attorney General John Ashcroft instructed government agencies to withhold information they could release if there is any ground for keeping it from the public.

Now, public interest groups are applauding the passage by the House and the Senate (login may be required) of a recent bill that aims to fix some of FOIA’s problems. Similar legislation stalled earlier this year after passing the House and Senate, but the more recent bill is now poised to make the first changes to FOIA in more than a decade.

While the legislation isn’t perfect, it will take some steps towards streamlining the process and creating more accountability:

• A tracking system for FOIA requests will assign a public number to each request, and create a hotline for agencies to deal with problems.
• Complaints about FOIA processing will be received by an ombudsman at the National Archives.
• Agencies that fail to respond within FOIA’s required 20-day limit will lose the ability to recoup research and copying costs from requesters.
• Requesters will have increased power to sue to recover court costs and attorney’s fees.
• FOIA will apply to government records held by private contractors.

The President has not said whether he will sign the bill, but unless he explicitly issues a veto, it will become law in 10 days (assuming that Congress remains in recess over the holidays). If the new law actually manages to make FOIA requests move faster in 2008, EFF will be among the first to know.

To see the kinds of revelations that result from FOIA requests, visit EFF's FOIA Litigation for Accountable Government (FLAG) Project page.

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Neuros Launches "Unlocked Media" Brand

Neuros Technology, manufacturer of open-source powered, analog-to-digital video recorder hardware, is spearheading a new effort to educate consumers about digital rights management (DRM) by establishing the "Unlocked Media" brand. The idea is for the "Unlocked Media" trademark to be freely available to innovators making products that allow media to be stored and played anywhere.

The establishment of the "Unlocked Media" badge is a consumer-oriented salvo that complements other important efforts to combat DRM, like the Free Software Foundation's "Defective By Design" campaign. Many activists and technologists are opposed to DRM on principle, but for some users, their primary understanding is that DRM is extraordinarily inconvenient. The "Unlocked Media" trademark is targeted at this kind of consumer, identifying products that reject DRM for the sake of compatibility and versatility.

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Does Peace with UMG Mean Downgrade for XM Subscribers?

XM and Universal Music Group (UMG) have apparently settled their lawsuit over XM's Inno (we explained the details in a May 2006 post when the suit was filed), the little receiver/recorder that promised to be like a TiVo for your satellite radio subscription. Early reports only speculate about the terms of the settlement, suggesting that XM is probably paying a royalty to UMG for every Inno sold.

That's bad enough, as it sets a precedent that record labels can effectively tax innovators for building new technologies (UMG also pressured Microsoft into paying a royalty on every Zune). But the real question is whether XM will "downgrade" the features that the record labels object to -- like the Inno's ability to record only artists you specify and randomly access individual tracks (the record labels complain that this makes the Inno too much like an iPod, and that copyright law is somehow responsible for policing the boundaries between iPods and radios and computers and ... and...). Many will recall that the RIAA has been pushing for new laws like the PERFORM Act and FCC regulations that would prohibit these features, leaving us in a world where digital audio recorders are artificially left less capable than even the original TiVo video recorders.

So, any of you who own an XM Inno, please let us know if you get a mandatory "upgrade" that downgrades your device.

UPDATE: a helpful Inno owner tells us: "The firmware on the Inno apparently can only be changed via a USB cable using special software on your PC. They've gone through several versions including the famous 1.05 where the illegally high powered FM modulator could be enabled at any time. Later versions turned off this feature, but many people still cling to their 1.05 version Innos in spite of the bugs." So it appears that Inno owners may be protected from mandatory "downgrades," but at the expense of not getting other new features.

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Update: Harry Reid Bows to Pressure, Postpones Immunity

At 4.30pm today, Harry Reid announced on the floor of the Senate that, given the complexity and contentiousness of immunity (which he says he backs Dodd in opposing) the bill will not come up before the holidays.

A very wise decision. Thanks are due to Senator Dodd, grassroots support, and your own many calls and letters for emphasizing just how dangerous and outrageous step this would be for any politician seeking to preserve the Constitution. We're not there yet, though, so keep the pressure up: write to your representative and demand that immunity not rise again in 2008!

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Senate Showdown over Telecom Surveillance

The Senate showdown over whether to exonerate telecommunications companies for illegally surveilling their customers is underway. Senators Dodd, Feingold and Kennedy have lead the charge. All three made awesome and eloquent arguments for a transparent and accountable government.

Senator Chris Dodd (CT) has been my hometown Senator my whole life; it's great to see him taking leadership on this:

I will ask the Senate candidly, and candidly it already knows the answer: Is this about our security— or is it about (the President's) power?

I ask that question not to change the subject, but because it is the key to understanding why this administration is pushing so hard for telecom immunity—that is, for secrecy. Richard Nixon, the same man who declared that “if the president does it, it’s not illegal,” raised secrecy to an art form—because he understood that the surest way to amass power is to conceal its true extent.

Secrecy can spring from the best motives; but as it grows it begins to exist only for itself, only for its own sake, only to cover its own abuses.

The senators of the Church Committee expressed succinctly the deep flaw in that form of government: "Abuse thrives on secrecy."

Senator Russ Feingold (WI) followed up:

We often hear from those who want to give the government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. If we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security.

...

This is not about whether the companies had good intentions or acted in good faith. It is about whether they complied with this statutory immunity provision, which has applied to them for 30 years. If the companies followed that law, they should get immunity. If they did not follow that law, they should not get immunity. A court should make that decision, not Congress. It’s that simple.

And finally, Senator Ted Kennedy (MA), who introduced the original FISA intelligence oversight legislation 30 years ago:

Think about what we’ve been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies. The President’s insistence on immunity as a precondition for any FISA reform is yet another example of his disrespect for honest dialogue and for the rule of law.

It’s painfully clear what the President’s request for retroactive immunity is really about. It’s a self-serving attempt to avoid legal and political accountability and keep the American public in the dark about this whole shameful episode. Like the CIA’s destruction of videotapes showing potentially criminal conduct, it’s a desperate attempt to erase the past.

Their efforts and ours were dealt a major setback in this morning's cloture vote. But the fight isn't over yet. You can watch the debate live on C-Span 2, or follow live-blogging at FireDogLake and Unclaimed Territory. You can also email or phone your Senators now and tell them to oppose immunity.

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