Re: [dvd-discuss] Microsoft's DRM OS Patent

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Good points.....it is not something to take lightly. 

On 3). it's worse than that. The patent office assumes that because it's 
been granted it's a valid patent and if you challenge the validity of one, 
the response is response is "we only grant valid patents and if a patent 
is granted it is valid" (circular)

On 5) That's the key but also where the patent office is woefully 
deficient in term of understanding -especially when it comes to 
electronics, computers, or non mechanical perpetual motion machines (Judge 
Jackson of M$ antitrust fame ruled that a patent on a perpertual motion 
machine should NOT be issued in the 80s)

6) probably right.




"Arnold G. Reinhold" <reinhold@world.std.com>
Sent by: owner-dvd-discuss@lweb.law.harvard.edu
12/14/01 01:06 PM
Please respond to dvd-discuss

 
        To:     dvd-discuss@lweb.law.harvard.edu, dvd-discuss@lweb.law.harvard.edu
        cc: 
        Subject:        Re: [dvd-discuss] Microsoft's DRM OS Patent


At the risk of being one who goes where angels fear to tread, here 
are a few comments from a non-lawyer, who has been through the patent 
process as part of a previous job:

1. Patent law is a world unto itself, arcane, technical, and not 
subject to commonsense analysis.

2. Patent litigation is extremely expensive. Nothing is really 
settled until the final appeal is ruled on. Deep pockets are vital 
and Microsoft has the deepest pockets in this quadrant of the Galaxy. 
During the many years such litigation would take, Microsoft would 
still hold its patent as a bludgeon over the head of anyone else 
would try to use the invention without a license.

3. The patent office rarely revokes an issued patent. Usually it 
takes something like proof of deliberate fraud on the Patent Office 
to do that.

4. Patents are usually challenged as part of an infringement action 
or an attempt to head off such an action.

5. While there are several grounds for challenging a patent, most 
likely to apply here is "prior art," that is proving the idea was 
known before Microsoft's date of invention. There are Web sites which 
offer bounties for such proof. Assuming Microsoft has done its 
homework, at best one might be able to challenge some of the claims 
in the patent, but not likely all of them.

6. I'm not sure what the point of our challenging the patent would be 
anyway. Microsoft doesn't need a patent to deploy this technology; 
their patent would just affect others who want to. Politically, the 
notion of a future where everyone who wants to publish needs a 
license from Microsoft is another argument against DRM.

Arnold Reinhold


At 3:49 AM -0500 12/14/01, Dan Steinberg wrote:
>I think Jim said it best when he indicated the depth of his knowledge of
>patent challenges.....
>
>
>microlenz@earthlink.net wrote:
>
>> I think there's enough talent here technically and legally to mount a
>> formidible patent challenge. While the USPS fee for patent
>> challenges is $2000 which is a bit much for a private individual,
>> collectively it's lunch money for a day per person. The real cost is
>> the preparation and putting it in the right legal terminology.Jim,
>> Wendy, Peter, Robin,  (anyone else with legal backgrounds) what
>> are the ground rules? What does the patent office want or not want
>> to see in a patent challenge? What is decisive? How should the
>> technical analysis proceed? What form of documentation is
>> needed?
>>
>> As for cracking it....that might get amusing...can one patent a
>> circumvention device?
>>
>>
>> >
>> > Yes.  Let's do it.
>> >
>> > But a failure-is-not-an-option approach.
>> >
>> > Who has the spirit and will?
>> >
>> > I'm not financially well-endowed, but will organize.
>> >
>> > Let's see if we can't shape something up.
>> >
>> > Seth Johnson
>> > Committee for Independent Technology
>> >
>> >
>> > Michael A Rolenz wrote:
>> > >
>> > > You know...this one might be interesting for the community to
>> > > "crack" or formally challenge the validity of it ($2000 filing fee
>> > > and EFF provides the legal representation)....it looks pretty
>> > > vacuous  after just a brief scan of it
>> > >
>> > > Seth Johnson <seth.johnson@realmeasures.dyndns.org>
>> > > Sent by: owner-dvd-discuss@lweb.law.harvard.edu
>> > > 12/12/01 11:05 PM
>> > > Please respond to dvd-discuss
>> > >
>> > >
>> > >         To:     dvd-discuss@lweb.law.harvard.edu
>> > >         cc:
>> > >         Subject:        [dvd-discuss] Microsoft's DRM OS Patent
>> > >
>> > > Following are my comments to Dave Farber on the recently unveiled
>> > > Microsoft Software Patent for a Digital Rights Management Operating
>> > > System.
>> > >
>> > > Seth Johnson
>> > > Committee for Independent Technology
>> > >
>> > > -------- Original Message --------
>> > > Date: Thu, 13 Dec 2001 01:46:42 -0500
>> > > From: Seth Johnson <seth.johnson@RealMeasures.dyndns.org>
>> > > To: dave@scripting.com
>> > >
>> > > Dave:
>> > >
>> > > In the essay at the bottom of this post, you asked what Microsoft
> > > > gave up in a deal you felt they had to have reached with the Bush
>> > > Administration.
>> > >
>> > > I think we see it right here.  Microsoft didn't have to give up
>> > > anything -- Microsoft just had to own the patent on a DRM OS,
>> > > providing the Government with an almost absolutely assured
>> > > trajectory toward establishing the terms by which exclusive right 
to
>> > > digital information would be policed.
>> > >
>> > > The real kicker is right here:
>> > >
>> > > > The digital rights management operating system
>> > > > also limits the functions the user can perform on the
>> > > > rights-managed data and the trusted application, and
>> > > > can provide a trusted clock used in place of the
>> > > > standard computer clock.
>> > >
>> > > The ability to use information freely is now going to be policed at
>> > > the most intricate level, in the name of exclusive rights and to 
the
>> > > detriment of the most fundamental Constitutional principles of our
>> > > society.
>> > >
>> > > Whereas The U.S. Constitution assures that every American citizen
>> > > has the full freedoms accorded to the First Amendment, we see here
>> > > the trappings of the final phases of the legislative demarcation of
>> > > the public into a mass of information consumers.
>> > >
>> > > Seth Johnson
>> > > Committee for Independent Technology
>> > >
>> > > > -------- Original Message --------
> > > > > Subject: [C-FIT_Community] MS Patent for Digital Rights 
Management
>> > > > OS Date: Thu, 13 Dec 2001 01:17:07 -0500 From: Seth Johnson
>> > > > <seth.johnson@RealMeasures.dyndns.org>
>> > > >
>> > > > AAcckk!!
>> > > >
>> > > > It's a LOGIC DEVICE, not a consumer appliance!!
>> > > >
>> > > > Okay, so we can stop Microsoft from establishing that this kind 
of
>> > > > OS is legally required on our machines, right?  *RIGHT??*
>> > > >
>> > > > Seth Johnson
>> > > >
>> > > > (Forwarded from Law & Policy of Computer Communications list,
>> > > > CYBERIA-L@LISTSERV.AOL.COM)
>> > > >
>> > > > -------- Original Message --------
>> > > > Date: Wed, 12 Dec 2001 23:18:08 -0800
>> > > > From: John Young <jya@PIPELINE.COM>
>> > > >
>> > > > Microsoft's patent for a Digital Rights Management
>> > > > Operating System was awarded yesterday:
>> > > >
>> > > >   http://cryptome.org/ms-drm-os.htm
>> > > >
>> > > > Abstract
>> > > >
>> > > > A digital rights management operating system protects
>> > > > rights-managed data, such as downloaded content, from
>> > > > access by untrusted programs while the data is loaded
>> > > > into memory or on a page file as a result of the
>> > > > execution of a trusted application that accesses the
>> > > > memory. To protect the rights-managed data resident in
>> > > > memory, the digital rights management operating system
>> > > > refuses to load an untrusted program into memory while
>> > > > the trusted application is executing or removes the
>> > > > data from memory before loading the untrusted program.
>> > > > If the untrusted program executes at the operating
>> > > > system level, such as a debugger, the digital rights
>> > > > management operating system renounces a trusted identity
>> > > > created for it by the computer processor when the
>> > > > computer was booted.  To protect the rights-managed data
>> > > > on the page file, the digital rights management
>> > > > operating system prohibits raw access to the page file,
>> > > > or erases the data from the page file before allowing
>> > > > such access.  Alternatively, the digital rights
>> > > > management operating system can encrypt the
>> > > > rights-managed data prior to writing it to the page
>> > > > file.  The digital rights management operating system
>> > > > also limits the functions the user can perform on the
>> > > > rights-managed data and the trusted application, and
>> > > > can provide a trusted clock used in place of the
>> > > > standard computer clock.
>> > > >
>> > > > 
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> > > > > 
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>> > > > ****
>> > >
>> > > > -----Original Message-----
>> > > > From: dave@scripting.com (DaveNet email)
>> > > > Date: Tue, 06 Nov 2001 18:49:31 GMT
>> > > > Subject: You're free to think
>> > > >
>> > > >
>> > > > ***The right to think
>> > > >
>> > > > No matter where you live, in what time period, no matter who you
>> > > > work for, you can think for yourself. We don't need a 
Constitution
>> > > > or a First Amendment to guarantee the right to think. This is a
>> > > > point worth noting as our freedoms are whittled, controlled and
>> > > > choked, for good reasons or bad.
>> > > >
>> > > > ***The right to speak
>> > > >
>> > > > Now the right to speak is a whole other matter.
>> > > >
>> > > > In Nazi Germany, or Stalin's Russia, had you spoken out, you 
would
>> > > > have been killed.
>> > > >
>> > > > That's how extreme it gets some times in some places.
>> > > >
>> > > > ***The fear of government
>> > > >
>> > > > Even the US government under a Democrat president was scared of
>> > > > the Internet [1]. Perhaps with good cause, I'll give them that
>> > > > much, it's a powerful communication medium, and it can be used
>> > > > equally well by scientists, thinkers and people doing good as it
>> > > > can be used by terrorists, racists, abusers of children, and
> > > > > promoters of hate.
>> > > >
>> > > > However silly it may seem, we made a historic decision [2] in the
>> > > > US, in the 18th century, to take the bad with the good. In the 
US,
>> > > > the right to speak is something the government, by design, has
>> > > > very little power to regulate.
>> > > >
>> > > > ***What did Microsoft give up?
>> > > >
>> > > > It's a fact, Microsoft made a deal with the US government. No
>> > > > theorizing necessary there, it's not a matter of probability, 
it's
>> > > > a certainty. The deal was announced. Ashcroft spoke. Gates spoke.
>> > > > We all know it happened.
>> > > >
>> > > > But what was the deal? What did Microsoft give up to get full
>> > > > control of the Internet?
>> > > >
>> > > > What did the government want from Microsoft, and what did
>> > > > Microsoft give them?
>> > > >
>> > > > Was it merely a campaign contribution in the 2000 election?
>> > > >
>> > > > Or did Microsoft promise to provide the government with access to
>> > > > all the information they accumulate in the Hailstorm database?
>> > > >
>> > > > Did Microsoft give the government the power to censor websites
>> > > > they think are being used by terrorists? With that power will 
they
>> > > > be able to shut down sites like the NY Times or the Washington
>> > > > Post if they say things that compromise the government's war
>> > > > effort?
>> > > >
>> > > > Will Microsoft support an Internet tax?
>> > > >
>> > > > What else? These are just the ideas that occurred to me as I
>> > > > thought about the possibilities this morning. I'm sure there are
>> > > > others I haven't thought of.
>> > > >
>> > > > ***And who did they sell out?
>> > > >
>> > > > At a certain level I'm just beginning to understand how powerful
>> > > > Microsoft has become.
>> > > >
>> > > > They own the chokepoint for most of the electronic communication
>> > > > over email and the Web.
>> > > >
>> > > > Now, they have to get people to upgrade to Windows XP -- that's
>> > > > the final step, the one that fully turns over the keys to the
>> > > > Internet to them, because after XP they can upgrade at will,
>> > > > routing through Microsoft-owned servers, altering content, and
>> > > > channeling communication through government servers. After XP 
they
>> > > > fully own electronic communication media, given the consent
>> > > > decree, assuming it's approved by the court.
>> > > >
>> > > > Here's how it works. Because their operating system is a 
monopoly,
>> > > > so is their bundled Web browser. If one day my site were not
>> > > > reachable through MSIE I'd lose most of my readers. They could
>> > > > shut down any site they want to, and with their new partnership
>> > > > with the US government, they could have justification, if not
>> > > > moral, at least legal and pragmatic. The government has law on 
its
> > > > > side, and the FBI, CIA, NSA, FAA, FDA, the Army, Navy, Marines 
and
>> > > > Air Force. Nukes and biological weapons. They're a powerful
>> > > > partner, and a now, a Friend of Bill.
>> > > >
>> > > > The rest of us are totally cut out of this deal. We're taken for
>> > > > granted, we're dumb, fat and happy, supposedly, and the future no
>> > > > longer looks so bright. The fat period is over. Microsoft had a
>> > > > lot of power to offer to the government. The government has been
>> > > > granted new electronic surveillance power [3] by Congress. Now 
how
>> > > > do they implement it? Microsoft can help. In my mind I'm not so
>> > > > naive to believe this was an arms-length deal, I'm certain there
>> > > > are aspects to the partnership between Microsoft and the US
>> > > > government that we can't see.
>> > > >
>> > > > If this scares you -- good. I think we've got a problem, and the
>> > > > government and Microsoft are not likely to help us.
>> > > >
>> > > > ***Your freedom will persist
>> > > >
>> > > > No matter what happens to the Internet, remember you are free to
>> > > > use your mind.
>> > > >
>> > > > Dave Winer
>> > > >
>> > > > PS: In my heart I cling to the hope that the Bush Administration
>> > > > really doesn't understand the Web, and that Microsoft really
>> > > > doesn't want the power to control what is said on the Internet. 
In
> > > > > my dream they wake up and say "Holy shit we didn't see that we
>> > > > were accumulating this much power."
>> > > >
>> > > > PPS: Failing that, I pray for the integrity of the Judicial 
branch
>> > > > of the US government. Gotta love those checks and balances.
>> > > >
>> > > >
>> > > > 
------------------------------------------------------------------
>> > > > ----- (c) Copyright 1994-2001, Dave Winer.
>> > > > http://davenet.userland.com/. "There's no time like now."
>> > > >
>> > > > C-FIT Community Discussion List
>> > > > List Parent: seth.johnson@RealMeasures.dyndns.org
>> > > > C-FIT Home:  http://RealMeasures.dyndns.org/C-FIT
>> > > >
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>> > > > ------------------------------------------------------------
>> > > > Send "[Un]Subscribe C-FIT_Community" To
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>
>--
>Dan Steinberg
>
>SYNTHESIS:Law & Technology
>35, du Ravin  phone: (613) 794-5356
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