Patenting the use of all episodic media on the Web might sound absurd, but the US Patent and Trademark Office has granted just such a patent, to a company called VoloMedia. It’s a significant issue, one that could threaten the freedom of all media distribution online. Wherever you are in the world, you can help.

Intellectual property law was created in order to protect genuine inventions and innovation from exploitation. But predatory patents, based on bogus claims and attempting to stake out broad rights, threaten to do just the opposite.

Here’s a new idea: fight back.

Lawyers are the heroes this time. The Electronic Frontier Foundation’s patent-busting project aims to take down unfair patents that threaten common-sense uses of technology. A number of these have applied to music and audio. The EFF has already won a big victory against what had been the worst offender – media giant Clear Channel actually successfully patented recording live shows. (No, really — recording a live gig, then burning them on the spot. The EFF was able to bust that patent.) The advocacy group also scored significant victories against patents on sending and receiving online streams and encoding media. (If someone thought they could patent your ears and charge you royalties for hearing, they probably would.)

Lawyers alone haven’t won these battles. The EFF’s clever twist is to crowd-source its case, by getting people like you to help the group document “prior art” – in plain English, to prove that something existed before the patent. (Without basic chronology, I could claim to have discovered electricity.)

In short, you can help save the freedom of online content.

Gibson, the guitar company, has been on an utterly absurd campaign against music games, bringing lawsuits against the developers of both Guitar Hero and Rock Band and even against retailers. In the latest illustration of how screwed up patent law is, and just how over-litigious it has made technology in this country, the patent was based on a Gibson patent for a “System and method for generating and controlling a simulated musical concert experience.” Never mind that Gibson’s patent looks nothing like Guitar Hero, or that if interpreted that loosely, Gibson could theoretically sue any music software maker.

See my previous break-down of the patent and the twisted logic of the case:
Gibson Guitar to Guitar Hero Maker: We Own All Digital Musical Reality

And following development:
Gibson Guitar Loses Mind, Sues Entire Planet

Our friend Nilay Patel gets the scoop at Engadget that Gibson has lost its Guitar Hero case in California US District Court. Engadget also has a PDF of the decision:

Gibson loses Guitar Hero patent lawsuit, gets booed off stage

You can read juicy bits in the final ruling (PDF):

• Gibson’s own counsel withdrew from the case after the guitar maker refused their request for information. That’s right: Gibson wasn’t cooperating with their own lawyers. (Gibson later was represented by different counsel.)
• Gibson’s own corporate general counsel didn’t respond to requests from the court.
• Gibson started trying to force third-party Activision system providers to provide short-notice depositions, much to the dismay of the court and ACtivision, given Gibson’s own lack of cooperation.
• Gibson tried to use a YouTube video of a Guitar Hero hacker on the record, which the court found irrelevant (and, I think, laughable.)
• Gibson variously tried, unsuccessfully, legal gymnastics by which it could redefine musical instruments to enforce its ultimately irrelevant patent.

Apple’s iPhone should be a herald of a new age in interface design. But now, with speculation that Apple and Palm could get into a patent battle, and murky concerns about patents in multi-touch interface design in general, it’s unclear how much intellectual property legal wrangling will have to happen first.

I’m going to resist turning this into a long rant – partly because I think the jury is out on so many issues. It’s never been entirely clear what Apple continues sacred in its intellectual property on the iPhone. It’s even less clear – with similar multi-touch designs spreading back decades and murky law around gestures in general – what their legal standing is. No one knows at this point whether there will actually be a lawsuit between Palm and Apple (or which direction). But one thing I can say with confidence: we need alternatives to Apple. Even if you love your iPhone, I think you’ll agree it’d be tragic if other vendors didn’t push the technology forward. And we need alternatives like Google Android that support real open development, release free and open source code, and provide an option to Apple’s deeply proprietary, restrictive development platform. Innovative music software in particular won’t be able to thrive if alternatives are closed or nonexistent.

Here’s a quick look at where we’ve been, and where things are:

American citizens have turned their eyes to the incoming Obama Administration for all kinds of change. It wouldn’t be overstatement to say that just about every possible hope is being pinned to the new government – practical or not. But there’s good reason to believe some significant changes may be in store for both the areas of arts and technology, in ways that are not only relevant to CDM readers in the US, but could impact the global climate for these areas.

The federal government in the US can’t do everything, particularly when economic pressures are likely to make budgets tight. But they can do something to set the tone. Even more importantly, there should be opportunities for people who want change to become active and vocal, and to learn from each other, wherever we are in the world.

The agenda I think we’ll want as tech-using artists and makers:

• Defend innovation, commercial or common, from patent abuse (see: White House)
• Embrace open source – something that could benefit, again, commercial and community endeavors alike (see: BBC, OSI)
• Make the arts a priority, and one that via technology connects to renewed interest in math and science (see: NYT)

As you can see, regardless of your party affiliations or even country of citizenship, these are things we can work on together. For a start, I’ve already talked about personal changes – not simply governmental or political changes – that can make a difference in our communities:

Your Own Times of Change: Greetings, “Makers of Things”

Here are some additional issues that may well interface with the incoming US government, with impacts on the US and around the world.

Above: Remixing history, through the ears of the UK.
Obama’s Inauguration as Reaktor Mash-Up: Tim Exile

This November, digital vinyl as we now know it will turn 10 years old. This setup is pretty simple in theory: instead of music, put encoded timecode on a record, then decode that timecode to provide information about where the record is in relationship to the needle. The idea is basic enough that, patent or no patent, it was inevitable that various developers would pursue the technique (and the very difficult work of implementation). Simulate the effect of scratching or needle dropping on a computer, and you’ve got virtual DJing, as found in products from Serato, Stanton, Native Instruments, Ms. Pinky, and others.

And as of Friday, it seems that the ongoing saga of a dispute over digital vinyl, beginning with the 2006 "divorce" of digital DJ titans Stanton Electronics and Native Instruments, may be over. NI released a statement Friday saying they had not only settled a US civil action patent case over their use of digital vinyl in Traktor Scratch, but had agreed to license the technology from N2IT Holdings, the US patent owners for digital DJing.

Apologies for the cat photo cliche, but … this involves patent law. We’d better have something cute and furry around to get through it.

The conclusion — the two have settled, Traktor Scratch is licensed per-use from N2IT, and N2IT’s patents are valid:

Native Instruments acknowledges the validity of patents held by N2IT, and has now fully licensed their usage worldwide for its TRAKTOR SCRATCH digital DJ system and related products.

The patents held by N2IT relate to general principles of digital music playback using time-code records, which are being utilized in TRAKTOR SCRATCH as well as in other manufacturers’ digital DJ systems with time-code control.

Acknowledging the validity of N2IT’s patents is actually pretty sweeping. You can read N2IT’s primary patent on Google Patent Search. The key words here are that N2IT patented the basic idea of using a turntable with encoded timecode on it for DJing. Theoretically, that could open up other digital DJ products to patent liability — keeping in mind that NI is a special case, because it was a development partner on N2IT’s FinalScratch product and was familiar with the technology.

How We Got Here: A FinalScratch History Timeline

I’m neither a patent lawyer nor a historian of digital DJ technology, so I quickly get out of my depth with the twists and turns this plot has taken. But I can offer at least a basic timeline of what’s happened, which puts today’s digital DJing in some context — albeit a somewhat strange context.

It goes something like this: