Is Windows a Symphony or a Player Piano Scroll?
Man, this whole having-a-real-job thing interferes with your ability to read random supreme court decisions! Fortunately, there are still stretches where I simply have to wait an hour to see the results of an experiment.
In a busy Monday, the Supreme Court made it much easier to challenge patents on the grounds that the thing patented was actually obvious (whew), and held that high-speed police chases are not unconstitutional (whew for cable news channels). But the third opinion of the day, Microsoft Corp. v. AT&T Corp., is the one that I was waiting for: the latest installment of the spectator sport "How do laws written to deal with physical things apply to information?"
Setup: AT&T has some patented speech compression algorithms; Windows includes a codec which everyone agrees infringes on the patent. Microsoft pays AT&T some money in compensation: a fee for each copy of Windows installed on a computer in the US. Microsoft also sells Windows abroad, of course, and US patents don't apply in other countries - well, not usually. But Congress didn't like this loophole, so in 1984 they amended patent law so that a company is still liable if it "supplies... from the United States," for "combination" abroad, a patented invention's "components."
When Microsoft takes a Windows Master CD and ships it to China, the nice folks there burn many copies of the CD, then use those copies to install Windows on many many computers. The question before the court was, does that count as combining components supplied from the US, or not?
By 7 to 1 (no Roberts), the Justices say it does not.
Certainly the "component" being combined couldn't be the physical master Windows CD, because that CD doesn't end up in the computer. (It doesn't even touch the computer - only a foreign-made copy of it does - but three justices went out of their way to say that it wouldn't matter if it did; the others explicitly didn't touch that question.) The fact that copying software is so easy, indeed that installing software inherently involves copying it, makes no difference.
So the only possibility is that the "component" at issue is the abstract, disembodied notion of the Windows software, divorced from any physical medium. And that simply can't be a component of something. The abstract notion of Windows is like music in a composer's head; the Windows Master CD is like a page of sheet music; a component would be a scroll that goes inside your player piano. Congress is free to close this loophole if it wants, but the Court says it certainly hasn't yet.
Original opinion here.
In news that might seem related, depending on your point of view, be sure to read about the Digg HD-DVD revolt. The first key that breaks HD-DVD encryption was cracked back in February, and for some reason it's getting a lot of press now. Digg initially deleted all stories mentioning the magical string "09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0" from its site. After a massive user revolt, it changed course and now says it's willing to "go down fighting."
No court has ever found that repeating a 16-byte key violates the DMCA or otherwise constitutes illegal use of intellectual property; this is all about legal-threat-intimidation. Sometimes peeved people can be an antidote to peevish lawyers. Welcome to the internets.
In a busy Monday, the Supreme Court made it much easier to challenge patents on the grounds that the thing patented was actually obvious (whew), and held that high-speed police chases are not unconstitutional (whew for cable news channels). But the third opinion of the day, Microsoft Corp. v. AT&T Corp., is the one that I was waiting for: the latest installment of the spectator sport "How do laws written to deal with physical things apply to information?"
Setup: AT&T has some patented speech compression algorithms; Windows includes a codec which everyone agrees infringes on the patent. Microsoft pays AT&T some money in compensation: a fee for each copy of Windows installed on a computer in the US. Microsoft also sells Windows abroad, of course, and US patents don't apply in other countries - well, not usually. But Congress didn't like this loophole, so in 1984 they amended patent law so that a company is still liable if it "supplies... from the United States," for "combination" abroad, a patented invention's "components."
When Microsoft takes a Windows Master CD and ships it to China, the nice folks there burn many copies of the CD, then use those copies to install Windows on many many computers. The question before the court was, does that count as combining components supplied from the US, or not?
By 7 to 1 (no Roberts), the Justices say it does not.
Certainly the "component" being combined couldn't be the physical master Windows CD, because that CD doesn't end up in the computer. (It doesn't even touch the computer - only a foreign-made copy of it does - but three justices went out of their way to say that it wouldn't matter if it did; the others explicitly didn't touch that question.) The fact that copying software is so easy, indeed that installing software inherently involves copying it, makes no difference.
So the only possibility is that the "component" at issue is the abstract, disembodied notion of the Windows software, divorced from any physical medium. And that simply can't be a component of something. The abstract notion of Windows is like music in a composer's head; the Windows Master CD is like a page of sheet music; a component would be a scroll that goes inside your player piano. Congress is free to close this loophole if it wants, but the Court says it certainly hasn't yet.
Original opinion here.
In news that might seem related, depending on your point of view, be sure to read about the Digg HD-DVD revolt. The first key that breaks HD-DVD encryption was cracked back in February, and for some reason it's getting a lot of press now. Digg initially deleted all stories mentioning the magical string "09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0" from its site. After a massive user revolt, it changed course and now says it's willing to "go down fighting."
No court has ever found that repeating a 16-byte key violates the DMCA or otherwise constitutes illegal use of intellectual property; this is all about legal-threat-intimidation. Sometimes peeved people can be an antidote to peevish lawyers. Welcome to the internets.