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  • The BlackBerry Emergency

    Blog post by Mishi Choudhary. Please email any comments on this entry to <Mishi@softwarefreedom.org>.

    According to the Government of India, private service providers like AirTel and Vodafone are failing in their legal obligations under the Information Technology Act, hastily amended in the days immediately following the Mumbai 7/11 attacks, by not providing access to the content of emails and texts sent to or from BlackBerry users. As a lawyer, I have some doubt about this legal position, no doubt under discussion between GoI and the service providers. But there is no doubt that the Government has failed to make clear the context of this dispute, or the real consequences of the demands it is making.

    BlackBerry devices use the wireless networks of the local service providers to deliver email and texts through servers operated by Research in Motion located outside India. If you or I as individuals buy a BlackBerry through one of the offering service providers, our email and text traffic will not be encrypted, and GoI will have whatever access to our communications the law requires. If, however, your BlackBerry was given to you as an employee of an MNC or a large local enterprise, for work use, those emails and texts will be encrypted so that only the sender and receiver, but not Research in Motion (RIM) and not the local Indian wireless service provider, will be able to read them. Since these parties do not have access to the content of encrypted messages, and therefore cannot provide what Government says the Act requires, the Government now threatens to force a halt to their services as of August 31.

    Unless a ring of terrorists is embedded entirely within some MNC, and is using its email and messaging system to plan terrorist attacks or other crimes using corporate BlackBerries, such a service cut would not be likely to prevent the planning or execution of any attacks. What it would do, however, is effectively cut off India from the global financial system. The ability of banks, insurance companies, law firms, consultancies and other professional service enterprises to operate around the globe depends entirely on the flow of confidential intra-firm communications. People cannot do business anywhere unless they can be sure that their firm's business communications are not being overheard by competitors or other parties using breaches in communications networks. So every such enterprise relies upon mechanisms that ensure complete confidentiality on which the movement of trillions of crores every day in the world economy depend. BlackBerry provides one portion of that network to a large subset of that market. Any country which shuts off encrypted BlackBerry communications has shut down its place in the global economy.

    Government knows, what the extent of its threat implies if our connection with the global economy is temporarily lost. But if the Government were clear with the public now about the small security benefit to gain and the magnitude of the harm it will cause if its threat is carried out, its dis-proportionality would raise questions in the mind of the public. Apparently GoI believes that such a threat can, from its very desperate dramatic quality, induce a useful result. Unfortunately, this too is wrong. Because nobody but the enterprises themselves have an access to the decrypted information, Government must get inside the BlackBerry itself if it is to read the messages.

    Thus, it is likely that GoI is pressurizing the local service providers like Airtel and Vodafone to put spyware within the BlackBerries attached to their networks. Thus, an arriving investment banker or CEO from New York or Frankfurt would have his BlackBerry subject to the introduction of spyware by the network, along with all the BlackBerries used by Indian financial services firms. There is precedent for this effort. One UAE wireless company, Etisalat, was caught installing spyware on more than 100,000 enterprise BlackBerries in the Emirates last year. Research in Motion was required by its customers to bear the cost of software upgrades to the system to remove the spyware and secure their business communications. Etisalat has been fundamentally injured in its credibility in international business, and is in some danger of becoming a global pariah.

    GoI is making threats that could only be fulfilled at cataclysmic cost to the economy. It will in effect result in causing immense harm to India's telecommunications sector and our reputation in the global financial services economy, where so many of our jobs are being created. In the end, it would inflict immense damage, much greater than any terrorist could ever cause scarcely achieving any additional security.

  • Software Patents Post Bilski: A Look Ahead

    Blog post by Michael A. Spiegel. Please email any comments on this entry to <mspiegel@softwarefreedom.org>.

    In the haze of confusion surrounding the Supreme Court’s recent decision in Bilski v. Kappos, the appeals board of the United States Patent and Trademark Office issued a ruling last week that takes a definitive stand against the worst kinds of patents that threaten software developers every day.

    Despite the Court's failure to provide much guidance or adopt a bright-line test for patentable subject matter in Bilski, the appeals board ruling in Ex parte Proudler is a sign of the growing skepticism towards software patents that continually test the boundary between acceptable technological innovation and impermissible abstraction. In Proudler, the Board rejected a number of claims to a software invention, citing Bilski in its reasoning.

    This rejection is particularly noteworthy as it dispenses with a number of fig leaves that patent attorneys have been using for years to make software inventions seem less like abstract ideas, and therefore patentable. While the USPTO has always held that software is unpatentable, patent attorneys were usually able to get software patents granted by adding such seemingly magical phrases as “a computer readable medium containing computer executable instructions” to a series of data processing steps, thus transforming software into a patentable physical component of a computer.

    Taking a page from the same playbook, the Proudler application claims a “method of controlling processing of data in a computer apparatus” and a “computer program stored on computer readable media for instructing a programmable computer to implement a method of controlling the processing of data.” Since the Federal Circuit’s infamous 1998 State Street decision which opened the floodgates to software and business method patents, such claims have been deemed patentable without question. Although the Board could have justified the July 7th decision on other grounds, it took particular pains to reject the Proudler application for claiming unpatentable software. “A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category,” the Board said in its rejection. In its rejection, the Board cited both recent Supreme Court cases (including Bilski) as well as pre-State Street decisions from the Federal Circuit.

    I believe the Board correctly deduced two notable things from Bilski, in an interpretation which hopefully will take root in the courts as well.

    First, the “machine-or-transformation test”, in which a patentable process must either be closely tied to a particular machine or transform a particular article into a different state of thing, survives as a primary test for routine use. Although the Supreme Court held that “the machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible ‘process’,” it did characterize the test as “a useful and important clue.” Without any hint of what processes, if any, may fail this test while still being eligible for a patent, the burden will lie with software patent applicants to prove that their processes are patentable after failing the machine-or-transformation test.

    Second, the Bilski decision effectively kills the “useful, tangible, and concrete” test long favored by patent attorneys who sought to overcome rejections for ineligible subject matter. As the USPTO has tightened its guidelines for computer-related inventions over the years, many applicants cleverly decided to draft their software claims to appear as if their process was tied to a particular machine. However, for those patents which were granted on the basis that their inventions were “useful, tangible, and concrete”?most notably software patents granted immediately following State Street?the Court’s decision in Bilski makes these patents especially vulnerable.

    Assuming this characterization of Bilski survives on appeal, I think we will start to see the USPTO take more aggressive steps to stanch the flow of the worst types of software patents. One need only look at the specific claims in the Proudler application to see how patents of this type stifle innovation in computer technology. I cannot think of any computer program that does not have “logically related data items” processed by associated rules. The rest of the claim language contain unintelligible nonsense—the perfect weapon to use against small software developers who can’t afford to defend themselves against patent aggression.

    So what will the status of software patents be going forward? Given the Supreme Court’s reluctance to categorically exclude any type of invention from patent-eligibility in the face of unforeseen developments in technology, I believe that at least some forms of software will remain patentable, barring any (unlikely) legislative response to the software patent issue.

    Expect to see software patent claims for “computer readable mediums” encoded with “processor executable instructions” challenged under the machine-or-transformation test as not being tied to a specific machine. These challenges may prove successful in invalidating the most abstract of computer software patents, to which patent applicants will respond by drafting process claims with ever increasing references to specific computer hardware. I also expect to see an increasing reliance on system claims with generic hardware elements, such as a processor or computer network, configured to perform steps performed in software. The patentability question for computer software running on general-purpose computers will be decided on the Court’s clear disfavor for “abstract ideas” as seen in the context of the reaffirmed Benson-Flook-Diehr trilogy of Supreme Court cases. The language in these cases which deny patents to “algorithms” and “mental processes” may prove useful in invalidating the most harmful of software patents.

  • The 300th Anniversary of the Statute of Anne

    Blog post by Laura Moy. Please email any comments on this entry to <Laura Moy@softwarefreedom.org>.

    This weekend marks the 300th anniversary of the Statute of Anne, widely considered to be the foundation of modern copyright law. The Statute, formally titled “An Act for the Encouragement of Learning," is often praised for placing intellectual property rights in the hands of individual authors and ushering in the era of public interest copyright law. In reality, however, the law's most lasting legacy has been the misguided proposition that “the Encouragement of Learned Men to Compose and Write useful Books" cannot be accomplished without copyright: a system which restricts the flow and use of information, chills collaboration, and presupposes that property rights are necessary to encourage innovation.

    The passage of the Statute represents the culmination of a centuries-long partnership between the monarchy and publishers, the effects of which continue to be felt today. In 16th century England, religious and political unrest, coupled with the proliferation of printed media, threatened to compromise the crown's ability to control the masses. Queen Mary and King Philip engineered a clever media censorship scheme in response. In 1556 they struck a Machiavellian deal with the guild of London publishers: the publishers would cooperate with the crown to prevent the publication of undesirable works, and in exchange, the crown would grant them a monopoly over intellectual property rights and the power to destroy unlawful books and presses.

    By the end of the 17th century, this partnership lapsed, threatening the publishers' monopoly. The publishers tried repeatedly to reinstitute the scheme, but amidst the growing importance of the electorate and an increasing hostility to private monopolies, all their efforts failed. The publishers had to change their strategy. If they were unable to reestablish copyright all for themselves, the next best thing for them would be to assign property rights directly to authors, who, unable to print and distribute their works on their own, would have no choice but to contract with the publishers. Publishers could then bargain with the authors to get exclusive publication rights, in essence perpetuating their monopoly over books.

    With this goal in mind, the publishers convinced Parliament that the creation of strong intellectual property rights was essential to encourage the advancement of learning.

    So the Statute of Anne was born, and on April 10, 1710, became law. The Statute of Anne, which, like modern copyright, granted exclusive rights directly to authors for limited terms, was intended by Parliament to promote “the Encouragement of Learned Men to Compose and Write useful Books.” Intellectual property, which restricts individuals' use of each other's ideas, had formerly always been conceived as a tool of censorship. That it was now suddenly championed as a tool to encourage information sharing denotes nothing less than a radical shift and is testament to the success of the publishers in convincing Parliament that no one does anything for free.

    This unfounded presumption that is now so deeply ingrained in modern conceptions of intellectual property, is the unfortunate legacy of the Statute of Anne. Hence the misguided challenge posed to the FLOSS movement with frustrating frequency: How can Free Software possibly provide adequate incentives to developers in the absence of strong proprietary intellectual property rights? Of course, our model does work. The fundamental flaw informing this question lies not in the shortcomings of the collaborative innovation model, but in the ancient assumption that only property rights can provide an effective incentive to write and publish.

  • Gene Patenting and Free Software: A Breakthrough

    Blog post by Eben Moglen. Please email any comments on this entry to <eben@softwarefreedom.org>.

    [Crossposted from Opensource.com].

    Last week, to the surprise of patent lawyers and the biotechnology industry, advocates for technological freedom won an enormous victory against socially harmful distortions of patent law. The Federal District Court for the Southern District of New York held invalid patents owned by Myriad Genetics on diagnostic testing for genetic susceptibility to the most common hereditary forms of breast and ovarian cancer. By "patenting" the right to determine whether the BRCA1 and BRCA2 genes are present in the relevant mutated form in a women's genome, Myriad Genetics has been able to exclude all other laboratories from conducting the test. Patients and their insurers have paid much more, and women and their families have waited crucial weeks longer than necessary for information relevant to treatment and potentially affecting survival.

    The Public Patent Foundation and the American Civil Liberties Union challenged the patent on the ground that the Act does not permit the patenting of "facts of nature." In a lengthy and carefully argued opinion granting summary judgment, Judge Robert Sweet agreed. Judge Sweet rejected the basic premise on which gene testing patents such as the one granted to Myriad have been justified: that the amplification of naturally-occurring DNA sequences is a patentable transformation of the DNA molecule. Instead, Judge Sweet adopted the view put forward by Myriad's own expert witnesses, that DNA is a special molecule, "a physical carrier of information," and therefore held that the reading of such naturally-occurring information is not patentable subject matter. Whether posed as a new composition of matter, or as a method for "analyzing" or "comparing" DNA sequences, Judge Sweet held, Myriad's attempt to gain a monopoly on looking at a particular DNA sequence to find out what it says falls outside the permissible scope of patent law.

    In reaching his legal conclusions, Judge Sweet relied significantly on the recent opinion of the Court of Appeals for the Federal Circuit, which has primary responsibility for interpreting the nation's patent law, In re Bilski, 535 F.3d 943 (2008), now pending in the Supreme Court. Bilski, as readers here will know, raises issues concerning the patentability of business methods and computer software, on essentially the same basic ground: that, as the Supreme Court has said, "phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Judge Sweet's opinion may be said to raise the stakes on Bilski slightly, but the parts of the Federal Circuit opinion on which Judge Sweet relies are not about the "specialized machine or transformation of matter" test adopted by the Federal Circuit to distinguish patentable from unpatentable inventions involving computer software and methods of doing business. Judge Sweet followed the Federal Circuit closely in its expression of the settled law of patent scope, making it more unlikely that the Federal Circuit, which will hear the inevitable appeal from Judge Sweet's judgment, will be inclined to disturb the conclusion.

    Instead, Judge Sweet's ruling shows the beginning of a broader front in the judicial determination to reign in patenting that has gone too far, turning information that should be free to all into property exclusively held by a few. Neither our patent law itself, nor the guarantees of freedom to learn and teach protected by the First Amendment, can tolerate the widespread creation of statutory monopolies on ideas. Judge Sweet's conclusion with respect to gene patenting confirms and supports the position taken by the amici curiae in Bilski, including the Software Freedom Law Center, that computer software standing by itself, another carrier of information about algorithms, or mental processes, is not within the scope of patent law. Judge Sweet's opinion illuminates another of the large classes of human knowledge presently being made the subject of statutory monopolies through the patent system, but which cannot legally be made monopolies at all.

    Americans have begun to understand a little bit about how, in the last two decades, corporations and their servants turned more and more of our society's opportunities into property for themselves. The sorrow and anger that is entering our politics, as honorable working people realize how badly they were had, will not soon abate. That the patent system too was gamed by the powerful at the expense of everybody else has not been fully grasped yet. But it will be. Time will show that Judge Sweet was more than courageous in his ruling, that he was also speaking with the voice of America behind him, as all great judges do.

  • Free Software: Phase Two

    Blog post by Lysandra Ohrstrom. Please email any comments on this entry to <Lohrstrom@softwarefreedom.org>.

    Free software is ubiquitous. It runs everywhere on (almost) everything. The question that dominated most of the discussions at the Libre Planet Conference in Boston about a week ago is what now? How can the community capitalize on its achievements to make the movement more inclusive and reconceive the relationship between free software and privacy?

    Most attendees seem to agree that it's time to proselytize to the non-hacker masses and get them to care about the privacy, freedom, and control they sacrifice when buying proprietary technology. At John Gilmore's group discussion on the future of free software Saturday morning, people proposed making the user interface more friendly; addressing freedom in the browser space; developing a solid gaming platform for free software. "My experience is that if you give people who play games the option to improve them they will," one attendee said. "I know people who became programmers so they could improve the games they played."

    The SFLC's founding director, Eben Moglen, said in his talk that the movement has reached "a point of inflection." The challenge it will face in "Free Software: Phase Two" is to explain the relationship between privacy, the integrity of human personality, and free software. The movement will have to figure out how to convince people they need a solution to a problem they don't know exists, he said. "It's not about we're done. The war is over. It's about, what's next."

    I think ordinary people who don't write computer code or think about the consequences of proprietary technology are aware that there is a problem; that they are forfeiting too much control over the tasks and relationships that make-up daily life to unknown forces in the digital world. The cyber security threats, malicious hacker attacks in China, car malfunctions, and voting booth problems that dominate the news cycle can all be traced back to potential software glitches. People know about these problems. They just don't know how the problems are connected or how to fix them.

    The challenge facing the free software community is to explain how the Toyota recall and Google's withdrawal from China can be traced to one cause: namely giving for-profit companies monopolistic access to the source code of the thousands of software programs that we are increasingly reliant upon. What's lost in the mainstream media coverage of these seemingly unrelated events is an explanation of a solution that already exists: open, auditable source code that anyone can view and detect flaws in.

    The first step for the SFLC and attendees of Libre Planet is to connect the various news headlines to a central problem: restricted access to source code. Then explain that it doesn't have to be this way. The technology wasn't designed to infantilize users. It was designed to give users a set of tools to collaborate and communicate in a digital world.

    I think the long-term challenge facing the free software community is even more fundamental than telling people they need a solution to a problem they did not know existed. You need to remind people that they don't know how the machines they interact with every day work. You need to open the doors of the community to the end-users for whom the difference between C++ and Java Script is as foreign as Dari and Pashto. The challenge is to encourage people who are used to having a passive relationship with the technology they use to search inside their computers; to show them that digital citizenship is about more than curating the photos you post on Facebook and limiting the information you transmit online. It's about self-sufficiency. It's about first understanding how computers work and customizing them, and then taking control of your own information and the activities you have entrusted to Wizard of Oz-type entities for no other reason than you didn't think you had a choice.

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