Group items matching

in title, tags, annotations or url

On January 17, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled, as a matter of first impression, that First Amendment defamation rules apply equally to both the institutional press and individual speakers and writers, such as bloggers.

In reaching this conclusion, the Ninth Circuit analyzed two key prior Supreme Court precedents: New York Times v. Sullivan (public official seeking damages for defamation must show “actual malice” as defined as a showing thatthe defendant published the defamatory statement with knowledge that it was false, or with reckless disregard as to whether it was false or not) and Gertz v. Robert Welch, Inc. (First Amendment requires only a negligence standard for private defamation actions). Notably, Gertz involved an institutional media defendant, and the Gertz Court invoked the need to shield “the press and broadcast media from the rigors of strict liability for defamation.” Yet neither New York Times nor Gertz, as the Ninth Circuit noted, were expressly limited to the institutional press. Moreover,a number of other Supreme Court cases have rejected such a limitation: Bartnicki v. Vopper; Cohen v. Cowles Media Co.; First National Bank of Boston v. Bellotti; and Citizens United v. Federal Election Commission.

The German Parliament recently took a huge step that would eliminate software patents (PDF) when it issued a joint motion requiring the German government to ensure that computer programs are only covered by copyright. Put differently, in Germany, software cannot be patented. The Parliament's motion follows a similar announcement made by New Zealand's government last month (PDF), in which it determined that computer programs were not inventions or a manner of manufacture and, thus, cannot be patented.

The crux of the German Parliament's motion rests on the fact that software is already protected by copyright, and developers are afforded "exploitation rights." These rights, however, become confused when broad, abstract patents also cover general aspects of computer programs. These two intellectual property systems are at odds. The clearest example of this clash is with free software. The motion recognizes this issue and therefore calls upon the government "to preserve the precedence of copyright law so that software developers can also publish their work under open source license terms and conditions with legal security." The free software movement relies upon the fact that software can be released under a copyright license that allows users to share it and build upon others' works. Patents, as Parliament finds, inhibit this fundamental spread.

Just like in the New Zealand order, the German Parliament carved out one type of software that could be patented, when: the computer program serves merely as a replaceable equivalent for a mechanical or electro-mechanical component, as is the case, for instance, when software-based washing machine controls can replace an electromechanical program control unit consisting of revolving cylinders which activate the control circuits for the specific steps of the wash cycle This allows for software that is tied to (and controls part of) another invention to be patented. In other words, if a claimed process is purely a computer program, then it is not patentable. (New Zealand's order uses a similar washing machine example.) The motion ends by calling upon the German government to push for this approach to be standard across all of Europe. We hope policymakers in the United States will also consider fundamental reform that deals with the problems caused by low-quality software patents. Ultimately, any real reform must address this issue.

Iceland's Supreme Court has ruled that Valitor (formerly Visa Iceland) must pay WikiLeaks $204,900 per month or $2,494,604 per year in fines if it continues to blockade the whistle-blowing site. The court upheld the decision that Valitor had unlawfully terminated its contract with WikiLeaks' donation processor, DataCell. "Today's decision marked the most important victory to date against the unlawful and arbitrary economic blockade erected by US companies against WikiLeaks," the organization's press release stated.