Two Lawsuits . . .

Creative is trying to block the sale of iPods in the U.S. by saying that they have the interface patented.

In other news, the RIAA is now suing XM Radio over their XM receivers/MP3 recorders, and (more importantly) trying to get legistlation through to ensure that they get paid a lot more by people like XM.

Are these lawsuits silly?

Well, you can’t call Creative silly after the RIM-NTP lawsuit settlement.

The RIAA lawsuit might have been considered silly a year ago, but not after Grokster.

If I’m either party, given how unclear the law is, I’d chuck the legal dice, too. When you’re looking at possible settlements/additional revenues of hundreds of millions or even, long-term, billions of dollars, what’s a few million in legal and lobbyists fees?

Nor is it the fault of courts. They can only interpret what the law says, and that’s the problem.

Our laws (I will be talking about U.S. laws, but the situation is usually the same or worse elsewhere in the world) were meant for an earlier effort. We have analog intellectual property laws in a digital world, and it doesn’t work.

For instance, the last major, comprehensive rewrite of copyright law was in 1976, and it shows.

Right now, if you’re somebody “sharing” MP3s, the RIAA can sue you for $150,000 a song. It can’t sue you for less than $750 a song. Such limits make a lot of sense when the people breaking the law were setting up factories to make and commercially sell LPs. It doesn’t make sense when the people breaking the law spend effectively nothing to make copies, aren’t selling them for anything, and can offer many times more songs than any record bootlegger without even realizing it.

If you want to put people in jail, it’s one thing to try to prove that a group of adults who had to spend a lot of money setting up a record-making factory knew what they were doing; it’s quite another to prove that about someone still taking Introduction to Puberty. It’s one thing to put 25 or 250 or even 2500 people in jail; it’s quite another to essentially jail most of your teenagers.

No doubt most people reading this think the copyright laws are terrible. What probably will shock most of you is that the RIAA and Company would wholeheartedly agree with you (though for slightly different reasons :)).

When two diamentrically opposed sides both agree that the laws are terrible, that’s a pretty good sign there’s something wrong with the laws.

But what does Congress do? Congress acts like your ninety-two year old great-grandmother in a nursing home being handed the latest cellphone. Her idea of dealing with it is to toss it in the trash, and if she can’t do that, she’ll ignore it until it goes away.

When Congress doesn’t make clear, current laws, the courts inevitably make a muddle of it. With Grokster, the Supreme Court should have said, like they did in Sony, “There’s nothing in the law that says you can’t do it, so it’s going to be OK until you slugs at Capitol Hill get off your butt and do your job.”

Instead, they split into three different camps that agreed that “things like Grokster are bad” but not why or how or how somebody, anybody else could avoid this problem. All that’s going to do is generate reams of lawsuits like the RIAA’s.

Worried about innovation? Well, the best way to screw up innovation is to not have clear laws that say “This is OK” and “This is not OK.” Right now, for a good chunk of the technical area, it’s “build it, and see how many lawsuits you get.”

The same situation applies to patents, but for other reasons. People are being allowed to patent everything these days. It’s not much of an exaggeration to say that if a certain type of corporate exec discovered he had an anus and defecated with it, he’d try to get a patent and demand licensing fees from anyone doing the same thing. You won’t be doing your business any more, you’re doing his business process.

You have companies these days who seem to operate on the principle, “Don’t do, sue.” At least Creative makes MP3 players, you have companies these days who patent ideas, never do anything with them, then sue and collect from those who actually do something with them. There’s something wrong there.

Yes, I’m exaggerating, maybe grossly, and yes, I’m being less than scrupulously fair, but you get the general principle. It’s not going to be funny for you if Apple gets forced to change its iPod interface, and people have to come up with bizarre ways to handle, say, a cellphone, because somebody patented a good way to speed-dial.

In short, if you want to kill innovation, make everything sueable. That doesn’t mean you shouldn’t have any laws at all, anything goes isn’t good. Nor is the opposite, digital content can’t be treated like an immutable permanently-fixed objection like a book, either.

But the worst of all possible worlds is “maybe you can, maybe you can’t,” these lawsuits are a sign that that’s where we’re heading.


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