[Commons-Law] relay

[Commons-Law] Words After Violence

commonslaw — 2008-11-28T10:31:28Z

Via: "Lawrence Liang"

[Commons-Law] EU Culture Council rejects French three-strikes proposal

commonslaw — 2008-11-25T07:40:16Z

Via: "Pranesh Prakash"

Dear All,
Some important developments from the Council of the EU (the 2905th
Education, Youth, and Culture Council meeting)
,
in the form of a resolution titled "Council Conclusions on the
development of legal offers of online cultural and creative content
and the prevention and combating of piracy in the digital
environment":

On TPMs:
"Although the use of technical systems for protection (Technical
Protection Measures (TPM)) or rights-management information (Digital
Rights Management (DRM)) may in some cases, while taking due account
of the principle of personal-data protection, contribute to protecting
and managing rights in the digital world, the lack of interoperability
or transparency of these systems creates insecurity for consumers and
limits their use of the content offered by the various platforms;"

On balancing of rights and proportionality:
"The need to ensure a fair balance between the various fundamental
rights, particularly the right to personal data protection, freedom of
expression and information and the protection of intellectual
property, and to seek, when implementing Community law, solutions in
compliance with the general principles of Community law, in particular
the principle of proportionality."

Glyn Moody makes much of the ordering of the rights in that sentence.

[Commons-Law] Monty Python gets it right

commonslaw — 2008-11-20T18:36:58Z

Via: "Pranesh Prakash"

Dear All,
The Brit comedy troupe Monty Python (or rather, the surviving members)
now have a YouTube channel: http://www.youtube.com/montypython

From
http://pythonline.com/special_announcement

[Commons-Law] IsoHunt seeks pre-emptive ruling on legality of Bittorrent search engines

commonslaw — 2008-11-19T14:17:53Z

Via: "Pranesh Prakash"

Since this is news from Canada, it includes insightful comments by Prof. Geist:
"The interesting question is how will the court characterize (Fung's
[IsoHunt's owner] arguments), because the broader legal implications
for copyright and for many parties - search engines and the like -
could be affected by the outcome of this case."

From: http://ca.news.yahoo.com/s/capress/081105/technology/technology_music_copyright_battle

Canadian owner of popular downloading site seeks court ruling on its legality
Wed Nov 5, 4:11 PM

By Michael Oliveira, The Canadian Press

TORONTO - The Canadian owner of one of the Internet's most popular
sites for downloading everything from music to porn is pre-emptively
asking the Supreme Court of British Columbia to rule on whether he is
violating the Copyright Act.

Gary Fung, 25, of Richmond, B.C., runs the IsoHunt.com search engine
for BitTorrent files, which are commonly used to download and upload
virtually every type of copyrighted material, including music, movies,
computer software and e-books.

The site currently links to more than 1.5 million files online, such
as the latest chart-topping CDs, video games, DVDs and even movies
currently in theatres.

Isohunt.com regularly cracks the Top 200 list of the web's most
popular sites, according to analysts at Alexa.com.

"It serves a need that had not been served before, especially with the
emergence of BitTorrent becoming a dominant (downloading) protocol,"
Fung said of the site's popularity.

Fung has been named in a lawsuit launched in 2006 by the Motion
Picture Association of America.

After receiving letters last May from the Canadian Recording Industry
Association demanding he take down links to copyrighted material, Fung
decided he would ask the courts to rule on whether his site breaks
Canadian law.

"We filed the court documents because we were threatened by CRIA.
Essentially they're saying that all we do is infringe on their
clients' copyrights," he said.

The letters Fung received argued his site is "responsible for causing,
authorizing and contributing to a staggering amount of illegal music
downloading, uploading and file sharing."

The letters also state Fung could be responsible for copyright
infringement damages of up to $20,000 per song.

But Fung insists his search-engine website doesn't break any laws
since it simply links to copyrighted material online but doesn't host
any of it. He notes that Google can also be easily used to find
BitTorrent files.

"IsoHunt does not consider that its operations ... infringe or violate
in any way the Copyright Act and therefore seeks the protection of ...
(the B.C. court) in the form of declaratory relief in relation to
clarification of its legal rights in respect of its operation," Fung
states in his petition to the court.

IsoHunt.com has a policy of taking down links to files when contacted
by copyright owners and has removed more than 50,000 links since 2004,
Fung said.

It's similar to the policy that was imposed upon the makers of the
Napster downloading software when they were sued for copyright
infringement, Fung said.

He added that he invited CRIA to send in requests to remove links but
the association "has refused to do that."

CRIA said it would not comment on the case.

Michael Geist, a copyright expert at the University of Ottawa, said
IsoHunt.com's take-down policy is similar to what most BitTorrent
download sites do in an attempt to avoid legal action.

"Many, many sites argue that there's simply too much content posted
(on their sites) to actively monitor so they're entitled to presume
their service is being used lawfully" until a copyright holder
complains, he said.

"And that's when their potential liability kicks in if they take no
steps to address it."

The case could have a broad impact and affect a variety of Canadian
websites, and not just BitTorrent download sites, Geist said.

"The interesting question is how will the court characterize (Fung's
arguments), because the broader legal implications for copyright and
for many parties - search engines and the like - could be affected by
the outcome of this case."

Fung said he might have to take down his site if the B.C. court case
goes against him. Donations from the site's users and advertising
revenue are paying his legal bills, he said.

"If we lost the case, it'd depend on what the judgment is. If it
involves damages we can't pay, then I'll have to shut down the site,"
he said.

[Commons-Law] On Lewis Hyde, author of 'The Gift' meets Santos' subaltern cosmopolitan legality

commonslaw — 2008-11-18T22:33:50Z

Via: solomon benjamin

Dear Lawrence and Friends,
Thought this article in the NYT mag. on Lewis Hyde author of 'The Gift' would be of wider interest! (Lawrence, thanks for the book, now being avidly re-read!).
Check out:
What Is Art For?
By DANIEL B. SMITH
Published: November 14, 2008 at:
http://www.nytimes.com/2008/11/16/magazine/16hyde-t.html?pagewanted=1&_r=1

'.. After the lecture, as we walked across the darkened campus, I mentioned to Hyde that I had found Lessig’s talk to be logical and well crafted.
“A little too well crafted, if you ask me,” Hyde said.
This took me by surprise — Hyde is a polite man who rarely speaks critically of others — and I later asked him to elaborate. “Look, Lessig is a lawyer,” he said. “I like him, I think he’s solid. But it’s a very particular way of thinking.” Hyde himself makes use of the Creative Commons, yet there’s a formality to the setup that troubles him. “All of the C.C. licenses use the lever of the law,” he said. “They have the assumption of private ownership behind them. So Lessig, in a certain sense, is confining himself to one slice of this stuff, which is not as capacious as a true commons would be.”

Would this pose two intersects towards 'an urban revolution'? 1) First, in mostly small firm based industrial production that customize commodity lines via an intensive copy culture that spurs innovation that includes reverse engineering. The IPR centered 'creative class' arguments fall flat!
2) Second, in their transnational urbanization: Wider connections to a commons (seen in Hyde's perspective) via small trade trans-national networks that connect Chennai, Bangalore and Yiwu in Eastern China. Opened up via such 'porous legalities', into what Santos et al term 'Subaltern cosmopolitan legality' (Santos de Sousa & Rodriguez's Law and Globalization from below).

If situations destabilize those 'in power' and associated 'property', than perhaps something goes on. Perhaps the parallel to Disney would be Daniel Chow from the Ohio Univ. law dept. Hired by Procter and Gamble, Chow investigated piracy and argues for it's link to 'global terrorism'. This link is familiar story. See his statement to the US senate at:n
http://www.cecc.gov/pages/roundtables/051605/Chow.php

Whats perhaps more fascinating is his argument on why a crackdown on piracy is made difficult via it's urbanization -- perhaps another revolution?
See:
http://moritzlaw.osu.edu/faculty/digest.php?digestID=57

And for a fascinating view of a commons city, in all it's unsettling fluidity, that seems straight out of my own memories of 1990's East Delhi, see:
Chinese instant cities http://ngm.nationalgeographic.com/2007/06/instant-cities/hessler-text

Cheers
Solly

Add more friends to your messenger and enjoy! Go to http://messenger.yahoo.com/invite/

Re: [Commons-Law] Fair use

commonslaw — 2008-11-17T18:10:45Z

Via: "Lawrence Liang"

Re: [Commons-Law] Fair use

commonslaw — 2008-11-17T17:48:45Z

Via: Ren Reynolds

[Commons-Law] Update on the Novartis case before IPAB – 17 November 2008

commonslaw — 2008-11-17T17:38:45Z

Via: "Julie George"

Update on the Novartis case before IPAB – 17 November 2008

Chennai, 17 November 2008

The Intellectual Property Appellate Board (IPAB) today commenced
hearing the appeals filed by Novartis AG (Novartis) challenging the
Indian Patent Office's decision to reject its patent application for
the beta-crystalline form of imatinib mesylate (Gleevec).

A special bench of the IPAB comprising Mr. Negi (Judicial Member) and
Mr. P. C. Chakraborti (Special Technical Member) is hearing these
appeals.

At the commencement of the hearing, Mr. Anand Grover, counsel for
Cancer Patients Aid Association (CPAA), informed the IPAB that he
would be objecting to new expert evidence that Novartis has sought to
introduce in the appeal. He argued that because Novartis did not
introduce this expert evidence before the Indian Patent Office while
the Patent Office was examining the patent application and the
pre-grant oppositions, it could not do so now. He added that if
Novartis wanted to bring this additional evidence on record, it would
have to file an application to do so. Mr. Grover also informed the
IPAB that CPAA has filed an application to introduce certain prior art
documents as additional evidence. Distinguishing these documents from
Novartis' additional evidence, he pointed out that the documents CPAA
sought to introduce are articles published in journals as opposed to
expert evidence that Novartis sought to introduce. Mr. Shanthi
Bhushan, counsel for Novartis, replied that he would oppose the
introduction of any new evidence by CPAA or any other party. This
issue will be argued before the IPAB later.

Commencing his arguments, Mr. Bhushan traced the history of the
Novartis litigation and summarised that the grounds for oppositions
that were filed by the five parties—novelty, non-obviousness, section
3(d) and wrong claiming of priority date. He then read out the
relevant provisions of the Indian patent law. Mr. Bhushan read out
the definition of "inventive step" under the Indian law and said that
the law requires a showing of technical advance or economic
significance and non-obviousness. He argued that when a person
expends a huge amount of time, money and effort in research and
development resulting in a new product, there is an inventive step and
the person ought to be compensated to enable him to recoup his
investment. The absence of such incentive, he argued, would kill all
research. Mr. Bhushan also read out section 3(d) of the Indian patent
law, which does not permit patenting of new forms of known substances
unless there is an enhancement in efficacy of the new form over the
known substance. He argued that section 3(d) only applied to "mere"
discovery of a new form of a known substance, i.e. a discovery without
expending time and effort in research. However, if the discovery was
the result of painstaking research involving huge amount of time,
money and effort resulting in a particular selection from numerous
possible permutations and combinations, the discovery was patentable
on a showing of increased efficacy.

Mr. Bhushan then referred the IPAB to an article on selection patents
authored by Julian Jeffs [Julian Jeffs, "Selection Patents", 1988
European Intellectual Property Review 10(10), 291–296]. Quoting from
the article, he said that a selection patent involves the selection
for a useful and special property of a particular compound or class of
compounds. Relating this to section 3(d), he argued that section 3(d)
allows selection patents by allowing patenting of new forms of a known
substance on a showing of increased efficacy.

Outlining the development path of the beta-crystalline form of
imatinib mesylate, he argued that the main issue at hand was selection
patents and that Novartis had engaged in painstaking research and had
invested a lot of time, money and effort in discovering the properties
of imatinib mesylate, its crystal form and then the beta-crystal form
from the various possible permutations and combinations. Mr. Bhushan
said that US5521184, the 1993 patent issued by the United States
Patents and Trademark Office, disclosed the free base of imatinib. He
said that despite the fact that the 1993 US patent disclosed that salt
forms could be obtained in a customary manner, Novartis has been
granted patents on corresponding patent applications in over 35
counties. He argued that as the patent law was similar in almost all
countries, a patent ought to be granted in India too. Perusing the
list of countries in which corresponding patent applications have been
granted patents, Mr. Negi observed that it appears that Poland has not
granted a patent to Novartis on its application. Mr. Bhushan assured
the IPAB that he would update the patent status in Poland.

Pointing out that the beta-crystalline form of imatinib mesylate was
30% more bioavailable, thermo-stable at room temperature and less
hygroscopic than other forms of imatinib and imatinib mesylate, he
said that these advantageous properties made the beta-crystalline form
more efficacious. He added that for cancer drugs, which are attendant
with serious side-effects, such increase in bioavailability was
crucial as it meant that a greater quantity of the drug could reach
the target site with the same or lesser dosage. Mr. Chakraborti
queried if the 30% increase in bioavailability of the beta-crystalline
form of imatinib mesylate was an increase as compared to the imatinib
free base or imatinib mesylate. Mr. Bhushan clarified that the 30%
increase in bioavailability of the beta-crystalline form was over the
free base of imatinib. Mr. Chakraborti also asked Mr. Bhushan whether
he was arguing that an increase in bioavailability amounted to
increase in efficacy and asked him to explain his understanding of
efficacy. Mr. Bhushan replied that the increase in bioavailability
and the improved stability at room temperature and lesser
hygroscopicity all amounted increase in efficacy. Mr. Chakraborti
observed that the term "efficacy" has a fixed understanding in the
pharmaceutical field and asked Mr. Bhushan to provide documents to
support his explanation of efficacy. Mr. Bhushan replied that he
would do so when he specifically dealt with the argument on section
3(d).

Mr. Bhushan then read out relevant portions from the order of the
Patent Controller, Novartis' patent application and the pre-grant
opposition filed by Natco Pharma Limited.

The hearing was adjourned to 18 November 2008. The hearings are
expected to continue on a day-to-day basis and come to a close by the
end of next week.

Updates are also available on a daily basis on our website at
www.lawyerscollective.org.

In solidarity,
Lawyers Collective HIV/AIDS Unit

[Commons-Law] Fair use

commonslaw — 2008-11-17T13:50:44Z

Via: Ren Reynolds

I've lurked on this list for ages but am not sure that this is an
appropriate use of it.

I'm coming to India for the first time this year to present at the
Internet Governance Forum in Hyderabad, I hope to show a short series
of clips of virtual worlds such as World of Warcraft. It's my belief
that showing clips to a audience at a private meeting is covered by
'fair use' which I think obtains under Indian law. What's more, given
the way that Virtual World companies try to use some what spurious
claims to IP to control users of their system I feel a duty to
exercise my fair use rights as a matter of principle.

However I am un-clear on this as a matter of India law and was looking
for pointer so I can make an un-ambiguous statements of my rights.
Could anyone on this list provide me a pointer to statue and case law
that might support my position.

ren

--8<--

web: www.renreynolds.com

Think Tank: www.virtualpolicy.net

blog: terranova.blogs.com

m (UK): +44(0) 7778 285 273

m (US, only when I’m there): +1 646-417-0641

Skype: RenZephyr

Twitter:
twitter.com/RenZephyr
Facebook: www.facebook.com/profile.php?id=734676997

Linked-in: www.linkedin.com/in/renreynolds

aim | bebo | club penguin | cyworld | del.icio.us | EvE | gax | gia |
habbo (UK) | iLike | jaiku | last.fm | LOTR (EU: Laurelin) |
MapelStory | pownce | profilactic | rupture | skype | secondlife |
there.com | tumblr. | twitter | upcoming | wacoopa | XBox Live:
RenZephyr

facebook | flickr | MySpace | openID | plaxo: Ren Reynolds
WoW (US Ettrig):
Cabot

Moshi Monster: www.moshimonsters.com/monsters/renreynolds
dopplr: www.dopplr.com/traveller/RenReynolds

spock: http://www.spock.com/user3c4282p51k10169012ck4cc82ss12k273757s00

[Commons-Law] Search Engines to Block Famous Names in Argentina

commonslaw — 2008-11-17T12:26:44Z

Via: "Pranesh Prakash"