IMPACT®

Ruthless? Moi?

I was drawn to a piece on the BBC website on Saturday reporting that web users are becoming more "ruthless and selfish" when going online. What's this - are we hogging more than our allotted share of (largely illusory) bandwidth? Are we snaring unfriendly sites into consumer-run botnets? Sadly no.

What passes for user ruthlessness and selfishness in the eyes of the "usability guru" behind the research turns out to be such outrageous webuser behaviour as:

• "ignoring efforts to make them linger" at a given site (ooooh)
• "being suspicious of promotions designed to hold their attention" (aaaah) and even...
• "wanting sites to get to the point" (gasp).

In short, people are said to be "much less patient when they go online". Hmmmm.

Can I suggest a change of vocabulary? Ruthlessness and selfishness were thought to be bad things when I was growing up, and I would like to offer a far more positive view of these alleged vices in the context of Joe & Jane Q Public's use of the web.

If we accept the web as a maturing institution, and given that so many homes in the UK now have broadband, we should surely applaud signs that users are now more "empowered" (I hate that word, but you know what I mean) and less tolerant of clumsy devices designed to manipulate their behaviour. When we walk into a shop, select an item and go to the till, we don't expect the store chain's marketing team to take us aside and try and sell us something else. We want to buy, pay and leave - end of story.

Why not on the web? People now use the web for more and more day to day transactions, and simply expect to be treated as adults with other things to do. People have now sampled enough sites to be able to compare good and bad, and so will no longer tolerate their precious time being wasted. They shun sites that try to do so. People are also highly sensitive to cyber crime, and now seek to limit their exposure wherever they can. And another ting - if (like me) you live further away from a UK telephone exchange than you can throw a modem, you also want to get the job done during that precious window when your internet connection is still up.

This may be seen as a bad thing by the site proprietors and their men in ponytails, but it isn't - it's just a once-wild environment going mainstream. So get used to it you wild Web 2.0 cowpokes - the railroad's come to town and and it's time to behave like the "results-driven customer-centric" businesses you claim to be.

Actavis result

The Court of Appeal has now reached its decision in Actavis UK v Merck Co, Inc.

By way of background, Merck is the proprietor of a number of patents related to a drug called Finasteride. That drug is the active pharmaceutical ingredient in a product called Propecia, a tablet form of Finasteride for the treatment of male pattern balding. Finasteride blocks the activity of an enzyme which causes the balding.

Actavis sought to revoke the patent under which Propecia was marketed. At the priority date of the Propecia patent (October 1993), Merck was already in the process marketing a product called Proscar, a tablet form of Finasteride for the treatment of prostate enlargement under an earlier patent. The specification of this patent disclosed the treatment of male pattern balding with Finasteride, but at a much larger dosage than that claimed in the Propecia patent.

Actavis argued that the claims in the Propecia patent were invalid because they were A) a method of treatment; and B) obvious in light of prior art. In relation to the first ground of invalidity, Actavis submitted that for a Swiss-style claim to be valid, it needed to relate directly to the use of a substance or composition for the manufacture of a medicament for a specified new and inventive therapeutic application. Actavis argued that Bristol-Myers Squibb was authority for the proposition that a new dosing regime for the treatment of a previously disclosed disorder would not be novel. The EPC agreed with Actavis on lack of novelty and made an order for the revocation of the patent. It did not however hold that the claims were obvious.

Merck appealed against the findings of lack of novelty and unpatentability. Actavis cross-appealed against the finding of non-obviousness.

The Court of Appeal held that Swiss-type claims were allowed under the European Patent Convention 1973 (art. 52(4)) and settled EPO case law where the novelty was conferred by a new dosing regime. It was further held that Bristol Myers Squibb did not contain a clear ratio that a Swiss-type claim lacked novelty if the only difference between it and the prior art was a new dosage regime for a known medical condition.  The EPC had erred in holding that the claim lacked novelty and was for a method of treatment. The Court also said that even if Bristol Myers Squibb was a binding precedent, it was not bound to follow it if it was inconsistent with settled EPO law.

Actavis was not successful in its cross-appeal and the order for the revocation of the patent was rescinded.

Do Sharepoint-created websites breach the Disability Discrimination Act?

Bruce Lawson, a web accessibility expert, certainly thinks so. Lawson writes on the subject for the May 2008 edition of the Internet Newsletter for Lawyers. INfL is a subscription based publication (online and offline), so you'll need to be a member to read the full article.

Lawson's argument about Sharepoint websites breaching the Disability Discrimination Act (DDA) breach is based on testing which indicates that such websites breach a number of the Priority 2 criteria of the Web Content Accesibiity Guidelines 1.0 (WCAG). The link between WCAG compliance and the DDA is one that hasn't been discussed by the UK court. Many UK IT lawyers are therefore likely to find Lawson's argument logical, but not necessarily persuasive simply because of lack of case law. In other jurisdictions, the law is more settled because of Court rulings (e.g. see our report on the Californian ruling on Target).

You can read more about the DDA and website accessibility in our IMPACT article "Making websites accessible to all".

Another GPL enforcement success as Skype accepts German Court ruling

News is emerging that Skype has dropped its effort in the German Courts to challenge the validity of GPL2, still the most commonly used free software licence despite the launch last year of GPL3.

The case is to do with the use of GPL2 licensed software that Skype used in its Skype-phones, and Skype's failure to supply the source code to that software with that phone, as required by GPL2.  As we reported in August 2007, the German Courts ruled that by failing to comply with this requirement Skype had breached the licence terms (see The Register for more details). Skype then took the case to the Appeal Court.

Based on reports on Groklaw and Welte's blog, the German Appeal Court gave Skype's arguments as to invalidity and breaches of anti-trust (i.e. competition) law very short shrift. On the issue of GPL2's requirement to publish/make available source code, Welte reports that one judge made a comment along the following lines:

"If a publisher wants to publish a book of an author that wants his book only to be published in a green envelope, then that might seem odd to you, but still you will have to do it as long as you want to publish the book and have no other agreement in place".

The case was brought by Harald Welte, the world's GPL-compliance policeman, who has been the force behind other successful cases where GPL2 has been enforced in the German Courts. Whilst the individual cases themselves may seem trivial, these decisions have really helped reassure FOSS-using organisations and their clients that the licences are sound.

Given that the case ended because Skype decided to end its appeal, rather than because the Appeal Court gave a ruling, there will be no official decision for us lawyers to get stuck into. Hopefully though, a  definitive record of the comments of various judges on GPL2 during the appeal will appear.

February 2009 adoption deadline for ICO's new public authority publication scheme

The Information Commissioner's Office has launched a new model publication scheme for public authorities. With the current model scheme expiring on 31 December 2008, the ICO is asking public authorities to adopt the model scheme by 1 January 2009 and has said from February 2009 it will be conducting "spot checks" on public authorities to check for compliance.

IMPACT looked at the legal basis for and nature of publication schemes in our post on the draft version of the model publication scheme in January this year.

The new model scheme is a very high-level document, and public authorities must supplement it with detailed information as to:

• for each of the 7 classes of information listed, the specific information that they will be publishing
• how they will publish the information - the ICO states that a website is the preferred method

To assist public authorities with completing these details, the ICO will be publishing guidance for different categories of public authorities. The first to be published is the guidance for central government.

NODUS, 7 May 2008

The fourth meeting of NODUS, the group for East Midlands IP&T practioners, was a well attended and lively event.

IP barrister Jeremy Reed of Hogarth Chambers gave an enlightening talk on software patents and recent legal developments. To say the least, this is a complicated area and Jeremy managed to give a talk interesting to both those very knowledgeable in the area (i.e. the patent agents) and to us with a less deep understanding. Key points were that:

• Conflict between the UK and the European Patent Office (EPO) approaches to software patents
• EPO law in this area is still developing

Jeremy refused to gaze into his crystal ball and predict the outcome of the ongoing Symbian case, or whether in ten years time IP professionals would still be scratching their heads trying to work out what the the law was on software patents.

The wooden spoon goes to the UK Intellectual Property Office for cancelling on sending a representative to talk on software patents on the basis of the Symbian case.

Not My Space, as it turns out

In February we reported that social networking giant Myspace Inc had managed to get the myspace.co.uk domain name using the Nominet Dispute Resolution Procedure. Well, that's all changed because the owner of the domain name, Total Web Solutions (TWS), has succeeded in appealing against the Nominet decision.

From an Information Overlord report, it seems that the Nominet Appeal Panel's view is that Myspace Inc hadn't successfully established that TWS' use of the domain name had become abusive. A question of evidence, then. For more details see the Information Overlord report and the Appeal Panel Decision itself.

Corruption 2.0 or internet rights 2.0? An IMPACT opinion on the Lessig SCL Lecture

As you will know from our last post, I attended the Society of Computer & Law's Annual Lecture on Wednesday evening, delivered by Professor Lawrence Lessig. There's already a number of items of content and opinion about the lecture (links at the bottom of this page), including an audio recording of the event itself, so rather than reinventing the wheel I provide links to that content at the end of this post. What follows is an opinion on the main argument that the Professor presented in the Lecture.

Lessig's speech was titled "Corruption 2.0". Lessig, a well-known advocate for more permissive interpretations and implementation of IP law that fit with the "free culture" of online collaboration, remixes (also called mash-ups) and non-harmful use of copyright materials. Bill Jones, who chaired the event, noted that Lessig had recenlty declared that his work in this area was a "closed book" and his focus was now elsewhere. The talk was slick, the presentation style impressive. Steve "Stevenotes" Jobs must be quaking in his boots.

Lessig's "new focus" is on what he terms "political corruption" and the effect that this could have on the future direction of the internet. His well-argued view is that the powerful Washington DC political lobby largely favours a zero-privacy maximum security approach to the internet, and that Hollywood lobbys for a "non-permissive" interpretation of IP laws. At the same time, a lot of legislators are apparently ignorant of the benefits for society of permissive IP and internet laws. Lessig thinks that there is likely to be a "i-9/11" - an internet event (caused by hackers / criminals operating online / botnets / malware) of devastating impact. When "i-9/11" happens, he said that with ignorant legislators in US Congress, the risk is of the anti-privacy pro-security and the non-permissive IP law lobby's efforts resulting in a significant curtailment of internet freedom via changes to the law.

All very good so far, but in my opinion Lessig lost the audience with his argument that these political lobbies are "corruption" and that the way to fight the threat to the internet was to fight this corruption.

Whilst I absolutely believe Lessig to be an influential and inspiring thought leader when it comes to the digital world, Lessig is the first to suggest that in the past he may have argued subjects from angles that - whilst logically correct - aren't necessarily the best angles to win the argument. (For example, see his "Free Culture" book for self-criticism of the way he argued in Court the unsuccessful case of Eldred v Ashcroft.) With his new campaign, I think Lessig risks repeating past mistakes in this respect.

Unfortunately, we live in a society where many people stop listening the minute you mention politics. When you talk of "political corruption", matters get even worse. "Corruption" is such a vague term, it's often a matter of personal opinion whether something is or isn't "corrupt". When it comes to lobbyists' influence on internet privacy/security and IP laws and how this could effect future laws governing the internet, by calling this "political corruption" Lessig risks losing the interest and attention of a huge amount of people, most of whom will use the internet every day and really value it as a resource and communication form. Even if some people are persuaded that "political corruption" is a big risk, they may well think that it isn't something that can be successfully tackled. A friend who attended the Lecture overheard another audience member comment: "It's all very well, but doesn't Larry realise that the world just doesn't *work* like that?" Lessig may have logic on his side but he may still lose the argument because of these human factors.

If the real issue is ignorance about the value of internet freedom on the part of legislators and the electorate, rather than argue against "political corruption", Lawrence Lessig may have more success arguing for the benefits and need for internet freedom - an extension of his highly successful advocacy for "free culture". However, the man is someone I admire and certainly not someone to be underestimated, so even if you don't (yet) understand his arguments on or agree with him on "corruption 2.0", you'd be a fool to dismiss a campaign that is still in its early stages.

Links

Peter Wainman at Naked Law on the SCL Lecture

Laurence Eastham at SCL on Corruption 2.0

SCL Audio Recording of the Lessig Lecture