"Friskit, based in San Francisco, said that if it succeeds in obtaining a permanent injunction, the companies would no longer be able to offer certain features in RealOne and Rhapsody. Those features include the ability for consumers to incorporate streaming media in personalized playlists in media players or to listen to a set of songs sequentially and continuously."
3:56:09 PM    

"'One who, knowingly or strongly suspecting that he is involved in shady dealings, takes steps to ensure that he does not acquire full or exact knowledge of the nature and extent of those dealings, is held to have criminal intent,' the panel wrote in the 23-page decision."

A sensible ruling.

But also interesting: "In Monday's decision, the court rejected the recording industry's argument that because Aimster was capable of blocking infringing uses, it should necessarily be considered a contributory infringer. Instead, the court ruled, if detection and prevention of copyright infringement were 'highly burdensome' to a service provider, that provider would escape an infringement claim. "

That seems wrong to me. The question shouldn't be how burdensome it is to stop the illegitimate use, it should be whether most of the use is illegitimate. In the case of the frequently cited Betamax case, most use was arguably legitimate. In contrast it is clear that the reason Madster exists is to enable the transfer of copyrighted files -- no one would know or care about it otherwise. That is very different from the Betamax case, no matter how burdensome detection and prevention is.

Often the "limit case" is revealing. Suppose it was possible for Madster to be used for legal reasons, but no one ever used it that way. Would the judge still rule based on Betamax? What possible relevance is it that something can be used in a way that it is not in fact used -- or is rarely used?

You could always measure altitude by throwing a computer running Madster off the roof and timing how long it takes to fall. Does that make Madster OK? That's a useful function for a computer running Madster that probably happens about as often as legal file sharing does on Madster.

But there must be some deeper principle here that I'm not clear on. For instance radar detectors are another class of device which are used solely to break speed limits without getting caught; and yet it is legal to buy, sell and operate them in many states, and there is a Federal law against using them in commercial vehicles but not against using them in noncommercial vehicles. Why is it legal in so many situations to buy and sell items that everyone knows have the specific purpose of enabling people to break speed limits with impunity? What constitutional principle supports that freedom?

If you know, and tell me, I'll report the answer here.
2:04:05 PM    

Despite the article's attempt at presenting a mixture of arguments, and despite the fact that the article is probably worth your time to read, I am amazed how blind many people are to the irrationality of some of the anti-software-patent arguments. This includes the article's author:

By far the strongest [anti-software-patent] argument is that software works by building on top of other software. This is certainly true and lends huge weight to the assertion that patenting software will end up stifling innovation since people will become weighed down with making sure they don't trend on others' toes. Patenting aspects of software breaks down the very process by which new software is created.

Now, the fact that the "strongest" (according to that author and many others) argument is totally bogus does not mean that 20-year software patents are a good idea. One real anti-software-patent argument is based on the very simple and inarguable fact that bits take a lot less time to manipulate than steel does, and potential improvements take a lot less time and money to test. Progress can be much faster in the software field than in most manufacturing areas. So, protecting an idea for the same amount of time in those varied fields is far from optimal. 20 years is a mismatch to the reality of software development, and therefore such patents must have a tendency to stall progress. But, say, 3 or perhaps 5 years would give small innovators some chance to profit before the big guys steal their ideas, thus giving true innovators a better chance to profit from their risk-taking and creativity. (Note that having a patent on a great idea that becomes quickly adopted is not a free ride to making money, as the inventor of the intermittent windshield wiper found out. But it is nevertheless very possible for a small guy wielding an intelligent strategy to profit -- that, however, is another subject.)

If the anti-software-proponents focused on realistic arguments instead of using emotionally-motivated pseudo-reasoning to try to outlaw of software patents altogether, they would have a much better chance of succeeding. For one thing, they would have people like Jeff Bezos on their side, who also believe that the patent term for software should be greatly reduced. A well-financed, united front, focusing on arguments that actually make logical sense, could make the case to governments in the U.S. and elsewhere much more powerfully. The anti-software-patent crowd would have a much better chance getting what they need, if not what they want.
9:58:57 AM