Thursday, December 16, 2010

Blackmail & Coercion in Modern Copyright Law

... referring to Tateru's post today about Ozimals & Amaretto...

First, here's the boring legal mumbo-jumbo from the Complaint for Declaratory Judgement (thanks to Marx Dudek & Tateru for the pdf link):

"11. On or about November 2, 2010 Ozimals, Inc. improperly alleged in a ceast-and-desist letter to Plaintiff Amaretto Ranch Breedables, LLC, that Amaretto's virtual horse that eats virtual food to grow into an adult and actually survive in Second Life was the same as Ozimal's virtual bunny, and that Amaretto's products infringed Ozimals' alleged copyrighted product, although no copyright registration, nor any patent was claimed or produced by Ozimals to Amaretto."

"20. The idea encapsulated in Amaretto's virtual horse - that one must feed it in order for it to grow, survive and replicate - was well known and was in the public domain long before either Ozimals' or Amaretto's products were in existence: [quotes Plant Pets, 2007 ; Sion Zaius Chickens, 2008; HunnyBunny, 2009; Petable Turtles, 2009 and Pinky Pigs, 2009]

21. [goes on to quote prior art regarding a breedable virtual animal that could pass on its 'genetic traits' goes back at least to Digimon, 1997; I would suggest also Tamagotchi, 1996 - ed.]"


This is a perfect example of how modern "copyright" and "patent" law have been twisted 180 degrees from the original intent of the laws regarding protection of ideas.

This claim by Ozimals is ridiculous on the face of it, especially with the numerous examples of "prior art" cited in the complaint and easily researchable by any half-competent patent/copyright attorney. Given these examples, this can only be a frivilous filing - deceptive in nature and a deliberate move to tangle Amaretto in costly legal proceedings designed to harm and damage its business.


This is the way modern patent/copyright law is being used to intimidate, discourage, strongarm and extort businesses. You can lay the blame for this trend squarely on the shoulders of Michael Eisner, who did so much to degrade and besmirch Disney's reputation; on Steve Ballmer, who created a Microsoft Patent/Copyright War machine to hide the fact that MS lost their income stream and viability in innovation years ago; on the slumped and greasy shoulders of Big Media, who are desperately scrambling to retain their golden thrones as Gatekeepers of ideas and culture so that they can continue to suck blood from artists and creators like bloated ticks.

The heart of the idea of copyright law was to spur innovation and creativity by providing for a temporary limited monopoly to recover investment costs and profit from the labor of creation, not lock up ideas forever. Patent law was created with similar thought to the above points - for the company who invested in production and capital outlay to recoup its costs and make a profit from the implementation of an idea in a solid working product (a real object).


Increasingly, companies (who are now 'legal personages' to a court, despite having none of the responsibilities of a legal personage) are using the threat of a DCMA Takedown Notice as a bludgeon in a predatory and coercive attempt to either intimidate or bankrupt a company with legal costs in order to remove competition in their market sector. This is conduct that not only smells of racketeering, protectionism and blackmail but that is also twisting the intent of the original copyright provisions and stifling innovation and competition, the two things that copyright law was designed to stimulate.

Examples are, sickeningly, too numerous to mention them all: The IBM-SCO travesty, 8 years of SCO trying to sue IBM over IBM's use of its own code; the attack on Tom-Tom by Microsoft, again using MS's sneak-patent-torpedo method of stealing Linux and Unix source code; NTP vs RIM/Blackberry... sadly, too numerous to cite here.

Patent Troll has entered the lexicon of modern business; I submit it should be more accurately described as extortion and racketeering. Companies who have no real capital or ideas are buying up old patents, sitting on them like vultures or maggots and waiting to torpedo some young rising company in an attempt to extort a "settlement" or profit from another company's efforts in research, development and implementation of an idea, or are engaged in attempting to patent common knowledge and expressions (Apple's "i" being the most famous currently).

The US Patents Office is also implicated and hip-deep in this protection racket; how else could it grant such obvious patents as #6360693 - Animal Toy (a synthetic stick); #5443046 - Method Of Exercising A Cat (using a laser pointer; there's actually 4 other patents describing the same thing) and my favorite disgustingly-mind-twisting one from Halliburton: #20080270152 - "Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party" i.e. patenting patent trolling!!!

It might make you laugh until you realize what this implies about the Patent Office, the reach and strength of commercial interests in US law and the deadly effects this is all having on ideas - not products, ideas. This is the Commercial Thought Police writ full-blown and large as life, happening now at any media company or bank near you.


If you are a content creator, it would serve you and your community well for you to be at least familiar with what is being passed off as "copyright law" these days. Too many people are ready to join the Greek Chorus when it comes to "copyright" without having much in the way of research or understanding these concepts and the way they are being manipulated at present. As a creator, you may scream the loudest for "protection" for your "ideas" - at least until someone like these guys comes after you for "infringing" on a "storyline" that has prior art of perhaps 1000 or more years behind it. Sure, you'd probably win... if you have the money, time and resources to pursue this in court.

... which is where my assertions of racketeering and protectionism come in. These aren't valid lawsuits. These are legal Claymore mines, designed to devastate your capital and time and discourage you from fighting back against these kinds of absurd claims. These are suits by people who have no moral qualms about twisting and distorting copyright and patent law for sheer personal benefit and for the insane, ludicrous and ominous assertion that ideas can be locked up for the benefit of a monopoly forever... which is quite the opposite of the intention and aim of the original precepts of copyright and patent law.

So think twice before you start cheering "copyright" as a creator. As I have mentioned before, there's a great example I can point you to: David Bowie, who submitted a double-handful of tracks for an album (industry practice) and took one of the rejected songs and posted it on his own website for download... and was sued successfully by the record company over a song they rejected, forcing Bowie to remove the track. This has happened to more than one artist (Peter Gabriel, Trent Reznor, Negativeland, etc.)

Think hard, long and deep about this type of business practice before you end up on the biting end of the stick. And don't be so fast to cheer on a DCMA takedown notice; you might be cheering for the extortionists.

ps - just as an aside, fsck the MAFIAA :)


Kranfel aka Kling said...

Great post! Yes ppl are twisting this way too far sometimes... The Bowie story is just plain ridiculous and I get really mad thinking about it...

Marie Ravencrow said...

That's been a contention of mine all along, that people are ignoring the spirit of copyright and patent law. So many creators in virtual worlds slap all kinds of conditions on using their materials that it makes you wonder why they don't just paste it to their own wall, if they're so afraid of it being stolen...and then you find out that some of them are stealing from others, themselves. It gets ridiculous and totally aggravating.