Archive for October, 2008

Bilski Decision Swacks Business Method Patents (US)

The much awaited decision of the court of appeals (US CAFC) in Bilski is in, with business process patents “swacked” (a word coined by my son – as in “mum, my brother just swacked me for no reason”).

We affirm the decision of the Board because we conclude that Applicants’ claims are not directed to patent-eligible subject matter, and in doing so, we clarify the standards applicable in determining whether a claimed method constitutes a statutory “process” under § 101.

(at page 2)

The decision is available here.  Some commentary is on Groklaw.

Copyright Infringement as Stealing: Pfft!

Note on Copyright Infringement as Stealing

Brendan Scott, October 08


Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.


There is a copyright-infringement-as-stealing meme which has been pushed for some time, but seems to be relentlessly marketed at the moment.  So, for the benefit of those being exposed to it, it’s appropriate to consider what the law actually says about the meaning of words like “stealing” and “theft” and whether it’s possible for a copyright infringement to fall within the meaning of these terms.

Attack of the Dictionaries

This what my Butterworths Australian Legal Dictionary (1997) has to say about what the words mean:

Stealing has no definition of its own, but has a reference to common law larceny and theft.

The definition for larceny is:

“The offence at common law of fraudulently, and without the consent of the owner or a claim of right made in good faith, taking and carrying away anything capable of being stolen, with the intent at the time of the taking to permanently deprive the owner of the property”

The definition of theft is:

“A term normally describing the offence of stealing of larceny… In some jurisdictions it is a term used to describe stealing which is defined in terms different from larceny at common law.  For example, in Victoria theft is dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it”

For the record, my Black’s Law Dictionary Deluxe Eighth Edition (US law) gives similar definitions (incorrect spellings are all [sic]):

steal 1. To take (personal property) illegally with the intent to keep it unlawfully. 2. To take (something) by larceny, embezzlement, or false pretenses.

larceny The unlawful taking and carrying away of someone else’s personal property with the intent to deprive the possessor of it permanently. Common-law larceny has been broadened by some statutes to include embezzlement and false pretenses, all three of which are often subsumed under the statutory crime of “theft”

theft 1 The felonious taking and removing of another’s personal property with the intent of depriving the true owner of it; larceny. 2 Broadly, any act or instance of stealing, including larceny, burglary, embezzlement and false pretenses.  Many modern penal codes have consolidated such property offences under the name “theft”

No Taking, No Deprivation, Therefore No Stealing

There are a couple of themes running through these definitions, one of which is that there is an intent to deprive someone of something – and to deprive them of it permanently.   It does not seem possible to shoehorn a copyright infringement into any of these definitions because an infringement does not involve the taking of a thing (or of personal property).  Moreover, nor does it result in a deprivation (nor, indeed a keeping of any thing taken).

Further Note on Black’s Dictionary

In fact, Black’s goes further than the definition above.  They have a special word “cybertheft” into which they put using the internet to “[interfere] with a copyright” – presumably they decided that such an interference didn’t fall within the meaning of “steal”, “larceny” or “theft”.   For your reference,  cybertheft is defined:

cybertheft The act of using an online computer service, such as one on the Internet, to steal someone else’s property or to interfere with someone else’s use and enjoyment of property.  Examples of cybertheft are hacking into a bank’s computer records to wrongfully credit one account and debit another, and interfering with a copyright by wrongfully sending protected material over the Internet.

The copyright example here is, by the way, somewhat tenuous – the authors have not used a copyright term, such as “infringement” to describe the activity, nor have they taken into account any of the myriad complexities of copyright law (what does wrongful mean?  would a fair use be wrongful?).  Presumably the “interfere with” limb of this definition would not withstand scrutiny.  Using the internet to hack someone’s home automation system and (eg) turn their lights off hardly qualifies as “cybertheft” (despite it being a clear interference with someone else’s use or enjoyment of property)  but would pass muster under this definition.

The Impossibility of “Stealing” Copyright

There is another problem for the infringement-as-stealing crowd.  Even if one concedes, for the sake of the argument, that copyright is “property”, as an intangible right it is practically impossible for anyone to steal it.  For example, if I give you the right to mow my lawn once a fortnight, how can someone else “steal” that right?  They might come and mow my lawn before you get there, but that doesn’t deprive you of the right.  You’ve still got it and you can still exercise it.  You might complain to me that I shouldn’t have let them do it because now all the joy’s gone out of the exercise for you, but in no sense have they (or I) stolen anything.  If you were to apply this term to other intangible rights, practically any interference with the use or enjoyment of any right would magically transform into stealing.

Note: This might not be the case in those foreign jurisdictions where copyright is effected through registration.  Someone might commit a fraud on the registrar to have the registration changed to a different owner.  Technically then it may be possible to steal copyright – but that would still not assist in the case of a mere infringement.


Infringement does not appear to fit the meaning of stealing or theft because an infringement does not involve either a taking or a deprivation.  Further, intangible rights seem almost impossible to steal by definition.  To use the infringement-as-stealing meme demonstrates something of a lack of respect for language and consequently a lack of respect for the people to whom you are speaking.

eeePC – Good Warranty Service from Asus


Fast and efficient warranty service from Asus on Linux eeepc with keyboard problem.


My eeePC developed a problem with the left shift key and the number 2/@ key.  I rang the retailer on Thursday 9 October  around 4:30 pm.  They said I could drop it back to them, but better to call Asus direct… but they couldn’t give me the contact details <sigh>.  I called Asus around 5pm that day.  They asked me if I could drop the eeepc into them (at their service centre at woop woop).  I said that might be a little difficult so they said they’d get a courier to pick it up.

The courier company phoned me around 1:30 on Friday 10/10 to arrange a pickup.  I boxed it up quickly and the courier came later that day (around 4:30??).   On Tuesday 14/10 Asus support called and said they’d replaced the keyboard and would courier it back to me, to arrive Wed/Thurs. I told them not to deliver till Wed afternoon.  When it hadn’t arrived on Friday I called them up (around 2:30 pm) and stayed on the phone while they checked it out.   They said it had been held up for some reason (DHL tracking indicated that it was picked up on 15/10 at 16:16 – so they probably deliberately held it back till then) and that I should call DHL with the tracking number.

So I called DHL three times.  On the first two times they said they’d had problems with deliveries in Sydney on Thursday and everything was therefore running late on Friday.  On the third time (around 4:30 on 17/10) I was able to talk to someone to find out the problem with my package – the street name had been spelled incorrectly.  So I gave them the correct spelling and they said they’d arrange for delivery on Monday 20/10 (today).

It has just arrived (boxed up in my original packaging, including the scrunched up paper I used for padding.  I guess I should give them marks for being environmentally friendly?  I’ve turned it on and done a small bit of typing and everything seems to work ok.

So, apart from the addressing error* this was a fast and efficient warranty service.  Thanks Asus.  Had I not told them to hold it, I probably would have had it Wed/Thurs.  Or, if I had followed it up on Thursday, I probably would have received it back on Friday.

* Inherited from my first problem report (copy included with the warranty return), where the operator apparently didn’t write it down properly – I do remember spelling out all the letters.

Developers: Legal Tips for Young Players – Record Keeping

Brendan Scott, October 2008

Records Records Records

In the mid 90s I acted for a large government institution in a dispute over the implementation of a failed search engine development being carried out by one of the worlds’ largest developers/systems integrators.   As is usual in litigation both sides conducted “discovery” – where you produce to the other side any documents of yours which are relevant to the dispute.   Part of the discovery related to the backups of the actual code of the software being developed.  In theory each side should have had a monthly back up for 12 months – that’s what they told us.  When it came to recovering from the backups we discovered most could not be restored.  Out of 24 copies which should have been available, only (I think) 2 could be recovered.   Neither of two large organisations (each of which might fairly be regarded as a paragon of record keeping) were able to keep adequate records.

Small and medium enterprises typically have poor record keeping processes.  Without records, it can be very difficult to prove any point you’re trying to establish – especially if the other side has kept their own (self serving) records.  A good record keeping system will permit you to understand what was happening at a particular time and this can have a lot of important consequences.

Structure Your Records

A record keeping system not only records information, it also structures and stores it in an ordered fashion.   This can sometimes mean having to replicate the record in a number of different places if it happens to be relevant to a couple of different things.   If you don’t keep your records in a structured way you might, in theory, be able to reconstruct what was happening from the jumbled mass of disparate notes you have kept, but, in all likelihood, you won’t be able to do so as a matter of practice.  It is unwise to rely on an after the fact search to find relevant documents.   You might choose to structure things implicitly through the file system.  Alternatively you can use meta-data in a document management system.  However, my experience (now somewhat dated) with document management systems has been that structure is poorly represented (my impression was that they made it easy for me to find other people’s documents, but rarely my own).

Maintain Separation of Projects

A failure to properly structure your files (whether physical or electronic) can have legal implications.  For example, if you fail to maintain a clear demarcation between the open and closed source work that you do, the code from one area may contaminate the other, potentially leading to untold heartache.  Indeed, this applies pairwise to any two  projects you are working on.  Particularly important is that you maintain a strict demarcation between any of your personal coding infrastructure (eg common libraries that you may have developed and reuse for multiple clients) and the specific projects you are working on.

For example, if you were to lump your private libraries into a directory shared with a client project that might seem to a judge (who are not renowned for their understanding of coding practices) as if they formed a single work – which may be bad if you’ve assigned IP as part of your engagement.

Make Notes

In some cases records can serve as a substitute for an express contract.  Equally, where a contract is ambiguous or apparently overreaching, consistent record keeping can, over time, establish some certainty within that ambiguity or can put bounds on the scope of an overbroad contract.  Such records might include, for example, notes of conversations where decisions have been made about what is in or out of scope, or emails which have been sent to this effect.  To the extent there is ambiguity don’t be shy in recording your understanding of the events.  While courts may not necessarily take your view of the world (as instantiated in your records) as gospel, it’s better than having nothing.  Send the notes to the other side prefaced by something along the lines of “This is what I understood we are doing going forward: ….”  This gives them an opportunity to correct you if you’re wrong.  If they don’t it will look odd for them to argue it was wrong at a later date.

Date it

To the extent practicable notes the date the note is taken should be included as part of the note.  This makes it easier to date the note – which can be crucial.  Often cases ride on when a person knew or said something.  If you have an undated note of what was said, it may not end up helping your case if you are unable to place it in relation to some critical date.  For example a note that the other party said “don’t worry, the contract has nothing in it that you should be concerned about” will have a completely  different consequence if it can be proven to be said the day before you sign (perhaps it induced you to sign) as opposed to the day after (when it can have had no effect on your decision to sign).  In addition, courts will generally pay more attention to a record which is contemporaneous with the details it records rather than one which attempts to reconstruct the situation at a later date.

Never use automatic date fields in documents if they will auto-update at some later time.  Date fields may seem like a good idea at the time, but once they update, their value is lost.  If you must use date fields, have some process by which they are converted to plain text on save (eg when the note is finished, or the relevant document has been sent).

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