What Macs Do When You're Not Looking

I swear this goes on the moment my back is turned. (Thanks to Andrew Raff for the link.)

"Unintended Consequences"

The EFF has a white paper out this month by attorney Fred von Lohmann ("Unintended Consequences, Three Years Under The DMCA") examining the impact of the DMCA and its anti-circumvention provisions. (The links to the EFF home page and the .pdf of the white paper are not working for me at the moment, but the Google html version is here.) Using real world examples of disputes arising under the DMCA, the report makes the case for how the legislation "chills free expression and scientific research," "jeapardizes fair use," and "impedes competition and innovation." It also observes,

"As an increasing number of copyright works are wrapped in technological protection measures, it is likely that the DMCA's anti-circumvention provisions will be applied in further unforeseen contexts, hindering the legitimate activities of innovators, researchers, the press, and the public at large."

Those who contemplate the banning of Magic Markers, or of writing about them - like Newsforge - emphasize just how unintended and absurd potential applications of the law could get. The white paper is a thoughtful round-up and analysis of DMCA cases, well worth the read. [Via Law.com]

Fine Distinctions, Fantastic Parody

Cory Doctorow elaborates on some of the thought processes behind the EFF's roaringly funny Flash video aimed at encouraging action about the CBDTPA, "Tinseltown Club." "[W]e actually had to go back to the drawing board once or twice and make this more like Disney's own song and iconography, otherwise, the parodical link wouldn't be clear enough," writes Cory. Oh, it's clear. I won't be able to hear those letters intoned again without Annette's voice sing-songing them in my head!
--Wednesday, via Scripting News and Philip Bump:

Now That's A Client

Scott Harris, incoming counsel to the Supreme Court. [Via Law.com]

High Court Broadens Scope Of Potential Patent Infringements

In a unanimous decision authored by Justice Kennedy, the U.S. Supreme Court today made it easier to demonstrate patent infringement by holding the "doctrine of equivalents" may properly apply to claims modified during the application process.

"In the decision now under review the Court of Appeals for the Federal Circuit held that by narrowing a claim to obtain a patent, the patentee surrenders all equivalents to the amended claim element. ... There are some cases, however, where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence."

The prinicples involved in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. are dense and procedural, but the bottom line of today's decision is that non-identical copies of a patented device are viable infringement targets, even where (as is commonly the case) the patent claim was amended during the give and take between the applicant and the USPTO leading up to the patent's issuance. The Federal Circuit's prior opinion, now vacated, had curtailed such claims.

Related links:
Opinion (.pdf, via the Court)
Opinion (html, via FindLaw)
Stories from Reuters, The Nando Times, CNN, Newsday (from January; good discussion of broader implications of the case)
(Eagle-eyed Katie blogged the reversal.)
--Later: more from Howard and Stephan.