But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.

They did warn that the impact of Professor Duffy's discovery could be cataclysmic for the patent world, casting "a cloud over many thousands of board decisions" and "unsettling the expectations of patent holders and licensees across the nation." But they did not say Professor Duffy was wrong.

If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.

While with the major carriers, for the most part, no one (not even the cops) can dredge up stuff from years ago since it's been long deleted, watch out if you're on an employer's carrier, like Skytel, which touts its messaging archival features. The other major catch is that even deleted messages can be recovered directly from your phone, just like deleted data from any other storage device, because of the way deletion works—it just marks the data as okay to be overwritten, so if it hasn't been replaced by new data, it's still recoverable. It's a bit easier to snag from SIM cards (which can hold up to 30 messages) than from the phone's internal memory 'cause there are dedicated gadgets for doing so.

Bottom line though, text messages are still probably the safest way to go about your business (dirty or otherwise) without worrying about getting snooped (much safer than IM or email, which are notoriously logged)—as long as you wipe them off your actual phone and make it past the two-day mark carrier-side. An anonymous prepaid phone works even better, obviously. [Slate]

In the fine print that you "agree" to, Amazon and Sony say you just get a license to the e-books—you're not paying to own 'em, in spite of the use of the term "buy." Digital retailers say that the first sale doctrine—which would let you hawk your old Harry Potter hardcovers on eBay—no longer applies. Your license to read the book is unlimited, though—so even if Amazon or Sony changed technologies, dropped the biz or just got mad at you, they legally couldn't take away your purchases. Still, it's a license you can't sell.

But is this claim legal? Our Columbia friends suggest that just because Sony or Amazon call it a license, that doesn't make it so. "That's a factual question determined by courts," say our legal brainiacs. "Even if a publisher calls it a license, if the transaction actually looks more like a sale, users will retain their right to resell the copy." Score one for the home team.

There's a kicker, though: If a court ruled with you on that front, you still can't sell reproductions of your copy, an illegal act tantamount to Xeroxing your Harry Potters. You'd have to sell the physical media where the "original" download is stored—a hard drive or the actual Kindle or Sony Reader. Our guess is that it only gets more complicated from here. What happens when the file itself resides only on some $20-per-month Google storage locker?

For more details, have a look at the original, surprisingly readable legal summary:

The (Potential) Legal Validity of E-book Reader Restrictions By Rajiv Batra, John Padro, Seung-Ju Paik and Sarah Calvert

Many users are unhappy that e-book readers, such as the Sony Reader and the Amazon Kindle, restrict the sharing, borrowing and transferring of e-books. While some argue that the "first sale" doctrine should allow users to transfer an e-book in the same manner as a hard-copy book, these contentious restrictions may be valid under current law.

The Sony Reader and the Amazon Kindle

The Sony Reader and the Amazon Kindle are portable media devices designed to carry and display e-books and other electronic documents. Kindle has a mobile broadband function that allows users to browse online content and download e-books while on the go. Alternatively, the Sony Reader requires users to download and manage their library of e-books via a home computer.

The contentious characteristic of both products is that they bar users from sharing their e-books with other users. For example, Kindle's license agreement grants a "non-exclusive right to keep a permanent copy...solely for your personal, non-commercial use." Consequently, Kindle users may "not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to...any third party." The Sony Reader has similarly restrictive language in its license, but does allow users to copy e-books to several other Readers as long as they are registered to the same account.

The First Sale Doctrine

Some users have argued that these license restrictions violate the "first sale" doctrine. Under the Copyright Act, the first sale doctrine allows the owner of a particular copy of a work to sell, lease or rent that copy to anyone they want at any price they choose. These rights only apply, however, to the particular copy that was purchased; any unauthorized reproduction or copying of that work constitutes copyright infringement. For instance, you can't give away photocopies of Harry Potter and the Deathly Hallows, but you can auction your paperback on eBay when you're finished with it.

When it comes to digital works, however, two complications arise: first, consumers might only hold a license to the content, rather than all of the rights that come from a sale; second, without a traditional physical container for each purchased work, consumers may not practically be able to sell their "particular copy" at all.

License vs. Sale

The first sale doctrine only applies to the "owner" of a copy of a work, so end users who acquire content by license do not enjoy the right to resell their copies. Whether a transaction is a license or a sale is a factual question determined by courts—even if a publisher calls it a license, if the transaction actually looks more like a sale, users will retain their right to resell the copy. However, as more commercial transactions involve the transfer of digital content—particularly commercial software—courts have struggled to consistently make the distinction between license and sale. Software is increasingly transferred with highly restrictive licensing terms, but federal case law has not clearly determined whether these types of transfers are licenses or true sales.

Kindle and the Sony Reader are following this licensing trend and creating restrictive licenses that users must agree to upon using the product. If these agreements are found to be enforceable licenses, they could serve as the legal authority to limit users from selling or otherwise transferring the e-books they download.

Amazon vs. Sony

Both license schemes are equally restrictive, but each product limits use in a slightly different manner. Amazon Kindle's use license expressly limits the extent and use of both the device and the digital media. The Sony Reader's restrictions operate in two steps: a license to use the device and a second license to use the e-book library software (created by Sony). In both devices, users are not allowed to circumvent or alter the pre-installed software on the device.

For digital media, Kindle's agreement allows users one permanent copy. The Reader, on the other hand, allows one user to posses multiple copies as long as they are all registered to that user. Both regimes are equally restrictive on the distribution, copying, and sharing of purchased e-books (to other users).

The reason for the differences in these restrictions is a result of their technical characteristics. Amazon's wireless store requires the terms to be agreed on initially, while the Sony Reader's reliance on iTunes-like software allows a separate use agreement. In effect, both agreements accomplish the same level of restriction, but you have a little more leeway with the number of copies with the Sony Reader.

Hard Copies vs. Digital Copies

Another possible complication stems from the inherent difference between transferring an e-book and transferring a hard-copy book. The transfer of a hard-copy book is just that; the physical transfer of one copy. The transfer of an e-book, however, requires the digital recreation or copying of that e-book. Because the first sale doctrine allows transfers of only your particular copy, and not reproductions or recreations, a digital transfer of an e-book is probably impermissible. Thus, users of Kindle and the Sony Reader can only legally transmit works by selling the physical media on which they are stored—be that the e-book readers themselves or the users' hard drives.

While the restrictions on e-books may initially seem inconsistent with the rights granted for hard-copy books, these differences are the consequence of new digital products outgrowing traditional copyright doctrines. Such issues are currently being examined by legal scholars and industry insiders, but only time will tell whether this degree of control over digital media is acceptable to society.

Luckily, the provision doesn't have much in the way of teeth right now, but an amendment to safeguard schools' federal funding if they don't comply was pulled yesterday, so it could quickly grow some. Just another reminder of why gov't peeps who know tech and aren't easily confused by slick lobbying are important. [Ars Technica]

Andrea Monti, an Italian copyright attorney, said all music sold on major music download sites is degraded. As such, exchange across P2P networks of these files, and any equivalent type of recordings, would seem to be legal under the new law. The law does restrict the sharing for "educational or scientific" use, but prosecuting offenders will nevertheless be more problematic because of it. The president of the RIAA counterpart in Italy was said to be confident in the restraints of the new ruling, but we imagine he crapped his pants as he said that. [Ars Technica]

As part of her appeal, she filed to have the damages ruled unconstitutional in their heft, given that they cost labels about 70 cents a song. The Copyright Act allows for statutory damages up to $150,000 a song, which the RIAA argued (and the DoJ agrees) don't have to be anywhere near actual damages. If you want the legalese it goes like this:

Statutory damages compensate those wronged in areas in which actual damages are hard to quantify in addition to providing deterrence to those inclined to commit a public wrong.

[G]iven the findings of copyright infringement in this case, the damages awarded under the Copyright Act's statutory damages provision did not violate the Due Process Clause; they were not 'so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.

The damages—again, over $9000 a song—might be not "obviously unreasonable" but that doesn't mean they're not fucking unreasonable. [Ars, Image via Flickr]

The Cell Phone Consumer Empowerment Act intro'd last month, for example, would force carriers to prorate termination fees, prevent them from calling their own fees government taxes, and keep their coverage maps up-to-date and easily available to customers. Also at issue are termination fees for military personnel shipped overseas and automatic extensions forced on customers seeking small changes in their contract.

Naturally, the industry's against increased regulation, with Verizon, for instance, saying it already follows many of the proposed provisions. Some Republican Senators also argue that the competitive market provides enough protection for consumers. On the other hand, having more transparency and fairness seems like it would benefit consumers, and at least on paper, a mobile bill of rights doesn't sound like a bad thing. What do you guys think? [InfoWorld/Yahoo!, Flickr]

Basically, if a school gets enough subpoenas in the mail from the MPAA and/or RIAA to make the top 25, they go on "probation." At that point they have to prove to the Secretary of Education that they're going to foist a "technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property" upon its hapless student body.

Naturally, provisions aren't laid out in the amendment for how the data provided by copyright holders is collected or verified at all. But it's not like the RIAA's ever been wrong or anything. [Ars Technica]

Bullrun Tech, Subterfuge Edition: Electronic License Plate Blur Effect [Jalopnik]

Bullrun Home Page [Bullrun]

We Gizmodians like our gadgets shiny and our movies uncut, but lots of folks want to censor movies, cutting them up the way they see fit. But a federal judge in Colorado sided with the Directors Guild of America, saying no, third parties can't edit and then re-release movies with the naughty words removed. He chewed up and spit out prude-infested companies such as CleanFlicks, CleanFilms and Family Flix USA, telling them they can't sell or rent these "cleaned-up" movies any more.

Rightfully so. These movies already had one editor. That job was done by a trained professional. As a director, the whole idea of some hack editing my work and then re-selling it makes my skin crawl. If someone doesn't want to hear certain words or phrases, the movies containing such language are well-marked. They can simply choose not to watch those movies.

Justice is done. The judge said it's up to the moviemakers to decide what's in their content. CleanFlicks plans to appeal that ruling. To those who want to censor movies, cleaning them up for their own prudish devices, here's a choice phrase, specifically edited just for them: fuck you. – Charlie White

Sanitizing movies illegal says judge [ars technica]

Along with having to get permission from the big 5 record companies, iTunes needs to track down all independent labels and strike deal with them too—something the indies may not be quite willing to do. This could possibly mean that parts of iTunes tracks will be available to non-iPod players in France. Something we'll have to keep an eye on. – Jason Chen

French lawmakers approve compromise iTunes bill [Marketwatch]

We have a feature called PhotoRank that lets anyone (SmugMug customer or not) rank a photo by clicking thumbs up & thumbs down icons.

Apparently, TiVo thinks they own all use of the concept of a thumbs up being positive and a thumbs down being negative. Shaking in my boots (ha!), I went to the USPTO and discovered that they do, indeed, have trademarks on 'Thumbs Up' and 'Thumbs Down'.

Luckily for SmugMug, their trademarks are only for "interactive television and remote controls", so this should soon blow over. – Jason Chen

Trademark 1 [USPTO]
Trademark 2 [USPTO]

TiVO owns thumbs [Valleywag]

Good? Bad? Do you think your town could use a complete ban? Lawrence is a college town that has well over 20,000 young and inexperienced drivers for nine months out of the year. So they could definitely use a ban like this, especially with the new age of young cell phone users that have to be in contact with each other at all hours of the day. – Travis Hudson

Lawrence cell phone ban would be strictest [LJWorld]

But wait. The iPod had already been on the market for quite a few years by then. WTF? Creative says it owns menus on music players? Weren't there already menus on the iPod and hundreds of other music players by summer, 2005? When, oh when is someone going to do something about the sad and sorry state of copyright patent law in America?

Update: OK, it appears that the patent was granted in 2005, but applied for much earlier, apparently six months before Apple applied for its iPod patent. So here we go, folks...the fun is just starting.

Creative Sues Apple, Claims They Created MP3 Menus [The Consumerist]

We're thinking some people are already bad enough drivers, but when they start talking on that cellphone, the world outside the windshield starts looking to them like some abstract movie they're watching. Unfortunately, that movie has lots of car crashes and explosions in it. But this is one law that's going to be unpopular and hard to enforce.

Restrictions on Cellphone Use While Driving Gain Traction [Wall Street Journal]

Wanna follow in NTPs footsteps? Then head down to Marshall, Texas to the court of Judge T. John Ward. Seems Johnny likes to award patents quickly and easily, and almost always sides with patent holders in any lawsuits. Great news, kids! Now just make some futuristic shit up, get it patented by Judge Ward and wait for the bucks to pile in when a real company comes up with a similar idea. I love the law, don't you?

Why Patent Trolls Worldwide Love Marshall, Texas [Techdirt]