Hope is one of the most powerful drugs, but it’s no substitute for progressive change. Our new President is dedicated to preserving a corrupt system. The US military is deploying in the USA. The government is going to bail out creditors instead of debtors.  Get ready for a rough ride.

You might remember, about a year ago the recording industry went to trial on a music file sharing case called Capitol v. Thomas. The RIAA won a couple hundred grand damages award against a single mother.

The good news is that the trial judge, sua sponte has ordered a new trial. He’s decided he should have instructed the jury that the plaintiffs needed to prove the music files the defendant made available on the peer-to-peer network actually were downloaded by a third party.  Read the decision for yourself. It’s actually quite thoughtful and interesting. While you’re at it, read more here and here.

Meanwhile, the US Senate Judiciary Committee has voted for a bill called The Enforcement of Intellectual Property Rights Act. This distinctly wretched bill goes so far as to have the Justice Department empowered to file civil lawsuits against alleged copyright pirates. I guess the recording industry preferrs to have the taxpayers pay for their efforts to enforce their property rights.  The only Senators to oppose this bill were Republicans.

Read the decision for yourself. I think this it’s good news. When a person dedicates intellectual property to the creative commons, he or she ought to be place reasonable limits on its use.  Read some informed analysis at this link.

The issues presented in these cases are fascinating to anybody with an interest in intellectual property. The PTO case that started all the fuss is called Bilski. Read it here . This case interprets Section 101 of the Patent Act to deny patents to process inventions that don’t physically transform an article and aren’t tied to a particular machine. Bilski is waiting an en banc hearing, but a couple of other cases have come out that are striking fear and disgust in the hearts of patent applicants and their lawyers.  These are Wasynczuk and Langemyr . These cases could cost some software developers a great deal of money.

I’m inclined to favor the PTO’s position on these cases. It seems to me that the developers are trying to take out patents on mathematics, which belong in the public domain. The PTO says it will grant patents to software that is tied to one particular machine, or which requires two different machines. This is a highly technical field that has to evolve with the changes in technology.

Both sides of these cases have interesting arguments. The time you invest in studying them will be amply rewarded.

It’s OK to run a for-profit fantasy baseball league without paying Major League Baseball for the right to use the names and statistics of big league ball players. The Supreme Court has declined to hear a case on this point, coming out of the 8th Circuit.

Read the 8th Circuit decision for yourself. Then go have a look at mainstream media coverage in the following locations: 1 2 3 4 5

“Fan fiction” is the most well-known type of “transformative” creative work product. Another term for transformative work is “copyright infringement.” In the real world, most copyright holders are willing to put up with fans writing new stories using famous (copyrighted) characters, so long as the creator doesn’t make any wrongful profit.

Julie Hilden has written an interesting commentary on FindLaw about this kind of derivative work. Ms. Hilden’s column discusses a movement to give some rights to those who create transformative works.”