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Amazon Sued Over E-Book DRM Patent
Posted by
kdawson
on Wed Mar 18, 2009 07:07 AM
from the unexpected-troll dept.
from the unexpected-troll dept.
I Don't Believe in Imaginary Property writes "Discovery Communications, the parent company of the Discovery Channel, is alleging that Amazon's Kindle e-book reader infringes upon their patent for DRM-encumbered e-books (Discovery's complaint, PDF). The patent in question was filed back in 1999 and issued in 2007 — coincidentally one day after Kindle 1.0 went on the market — and has claims for DRM implemented with a great many particular symmetric key ciphers and key exchange algorithms, (the patent has 171 claims). Unlike most software patents, this one goes into quite a lot of detail about how the encryption is to be performed. But it will still be interesting to see if it can pass the 'machine or transformation' test now that In Re Bilski is being accepted as precedent. After all, it seems like all of these encryption and e-book distribution schemes could be run on a general-purpose PC, so is the 'invention' actually tied to a 'particular machine or apparatus' just because an e-book 'viewer' (not to mention 'home system', 'library', and 'kiosk') happens to be specified in the patent's claims? Or can the encryption of an e-book be claimed as some kind of 'transformation' when the law in that area is especially murky — when no one knows how In Re Bilski may affect the precedent of In Re Schrader?"
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Your Rights Online: Federal Circuit Appeals Court Limits Business-Method Patents 73 comments
Zordak writes "The Court of Appeals for the Federal Circuit has just issued its much-anticipated opinion in In Re Bilski [PDF]. This was a re-visit of the State Street issue of what constitutes patentable subject matter (including whether software and business methods are patentable). In summary, the court has affirmed and strengthened the 'machine-or-transformation' test, upholding the patent office's rejection of claims on a method for hedging risk in the field of commodities trading. Although the court refused to exclude software patents categorically, it is likely that the reasoning of this decision will be used to reject many software patents (note that some of the dissenting judges would have completely overturned State Street and tossed out all software and business method patents). Although not as sweeping as some had hoped for, it is certain that this decision, along with the Supreme Court's KSR decision last year, will lay a difficult mine field for those who want to patent software and business methods."
Submission: Amazon Sued Over E-Book DRM Patent by Anonymous Coward
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The irony is... (Score:5, Insightful)
...so thick that you could cut it with a knife. Sell e-books with DRM to protect copyrights and violate a patent. Or sell without DRM without violating the patent and allow anyone to violate the copyrights. Anyone have anyway of pulling this on the record companies?
If the patent is upheld then amazon appears to have two choices, sell e-books without DRM and get yelled at by the author's guild or sell with DRM and have to pay licensing agreements. Should be fun to watch from the sidelines, the only problem is who do you cheer for?
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Which would be passed on to the consumer. Would be nice to see it passed on to the AG so they could feel the pain too, but that is as likely to happen as 2009 is to be the "year of Linux."
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I'm confused. Why would the Attorney General have to bear licensing costs?
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Which would be passed on to the consumer.
Kindle isn't a must-have item, though. And it is already expensive. Passing too much of the costs onto the consumer could be fatally detrimental to the platform.
Re:The irony is... (Score:5, Funny)
The Pirate Bay.
Parent
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Unfortunately... (Score:1)
Discovery doesn't have a patent on ALL E-books that use ANY DRM scheme, just a specific (albeit verbose) one that Amazon has stepped on.
Unfortunately, this means Amazon will likely take the path of least resistance and just come up with a new method of DRM which doesn't violate Discoveries.
This is a hassle for anyone wh
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It's more problematic than that. Amazon cannot risk rending existing Kindles and books inoperable; they'll have to change the DRM on all their books, etc.
Are they going to have to make changes to the actual readers, though? Can they just do a firmware push? Otherwise, they just change the book files, and leave everything else alone, and it's transparent to the user.
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...and cable networks, device-to-device, publisher direct, kiosk, library, wireless, etc.
It is pretty broad in my view.
Prior art has to be prior to the application (Score:2)
No they won't, Gemstar was doing this in 2001 and it had DRM all over it. This is a bad patent and it needs to die.
The patent application was filed in 1999, so whatever Gemstar was doing in 2001 is not prior art and is thus irrelevant. Perhaps there is something publicly revealed earlier than 1999 which could invalidate the patent or reduce its coverage.
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A patents grants the holder the right to stop another business for operations based on the contents of the patent. In theory, the Discovery Channel could refuse to negotiate with Amazon and Amazon would be violating the patent terms... in which case it would be possible to launch a huge lawsuit against Amazon. The Writer's Guild has nothing to do with this.
I would guess that the Discovery Channel will sign some kind of licensing deal to permit Amazon to conduct their business with DRM, though. They've
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I don't believe Discovery Channel's reason for filing the patent is important. As long as they hold a valid patent, they have the right to sue anybody who violates it for (a) damages, and (b) to shutdown their business.
It could be that they are just seeking to supplement their revenue with a licensing agreement, or it could be that they're holding this patent in hopes of preventing DRM'd ebooks from hitting the market. In either case, they're entitled to their right to sue.
Take, for example, if my bus
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Sure (Score:2)
Anyone have anyway of pulling this on the record companies?
That's easy: you just patent putting DRM on music.
Whether it's a business method patent or a software patent or a patent on the cryptographic math (x \mapsto x + 13) is irrelevant. Whether there's prior art is completely irrelevant.
(IANAL, but this interpretation of patent law seems to work fine in practice.)
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What about Prior Art (Score:2, Interesting)
Who in the world gave them a patent on ebooks in 2007? I could see it in 1999, but this sounds like one of those file then modify deals. I guess the patent office has never heard of a Rocketbook or Gemstar. I think the Rocketbook came out in 1998 and the Gemstar REB1100 with all the fancy DRM came out in 2001. I am pretty sure they were not the first. Lawyers and MBAs, there should be a bounty on them.
Re:What about Prior Art (Score:5, Interesting)
According to my Father-in-Law who worked for the patent office over 15 years ago they started to outsource the some of the work and the people they outsourced to did not understand prior art and did not do hours of research on each patent to make sure. Also it is much easier to pass things through then fail things which is why he retired.
He still shakes his head when I tell him some of the things that have gone through and he doesn't know anything about computers.
Parent
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Someone had brought up the idea of a public comment period before issue of a patent. That would at least slow down some of this idiocy. It would be very interesting to see the difference between the 1999 filing and 2007 issuance. I am almost positive that Gemstar had patented their device before this was issued and may have been filed earlier.
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Why don't you then?
US2007/0201702
But make sure you look up the whole file wrapper on PAIR to put everything in context. Also in particular take a look at the long listed of cited references and how they are used in the examiners reports.
http://portal.uspto.gov/external/portal/pair [uspto.gov]
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And where exactly do I find the "terrifying but expected" mod point?
That wouldn't surprise me at all, determining obviousness is really quite a bit more difficult than it might seem. Often times things are far more obvious once you've seen them in work than they were before hand. Prior art isn't necessarily that much better if it was used in an obscure product or never patented previously.
Sort of like tension sheets if you think about it.
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Often times things are far more obvious once you've seen them in work than they were before hand.
That doesn't fit my usual definition of "obvious"... but maybe that was your point?
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Often times things are far more obvious once you've seen them in work than they were before hand.
A lot of patent proponents like to push that myth. The reality is that an expert in the field is perfectly capable of assessing whether something is obvious or not with more, not less, information at their disposal. An expert doesn't mystically lose their intelligence or experience when told about something.
---
The patent system. The whole edifice is based on handwaving.
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The patent was filed in Sept. 1999. There probably wasn't a ton of prior art at that point in time. It took 8 years for it to be granted, which should tell you something.
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Yes, either that or there was considerable questions posed to the inventors that took a long time to be worked out. For example, if the patent office thinks that there is some issue it can take a while to convince them the inventor is right (or that it's just easier for the USPTO to approve the patent).
8 years is a very long time, about twice what it is expected to take.
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Everything in claim 1 was done by the Rocket Book. Same goes for Claim 2. Claims 3 through 6 are silly; Claim 3 (claim 2 plus "generate a key") was certainly done by the Rocket Book server. Claim 4 is "duh" -- generate the key randomly. Claim 5 is tautological -- generate the key using a key generator. Claim 6 is "retrieve the key from memory", another "duh". Claim 7 wasn't done by the RocketBook as far as I know, but it wasn't anything new in 1999 either.
The later claims concern a more complex system
I don't see how "machine or transformation" helps. (Score:5, Insightful)
unless "transformation" applies solely to physical artifacts directly observable to human senses, or such senses augmented by things like microscopy etc.
DRM undoubtedly entails a transformation: from a digital object in unprotected form to one in protected form.
I think, though, the source of that sense of absurdity we all feel is that this is yet another attempt to patent a pre-existing technology when used for a range of its originally intended uses. Encryption technology exists, in part, to control when and how recipients of information use that information. DRM is just a specific instance of this.
Back in the 1990s there were tons of really insipid patents on using GPS to locate things in various contexts. They were stupid because GPS was a technology specifically designed to provide location data for various uses, e.g., navigating in the field, guiding bombs, etc. My boss used to come in about once a quarter and toss a sheaf of papers on my desk describing some GPS related patent he wanted me to look at. I'd pick it up and tell him to send it to the lawyers because (a) it was almost certainly one of those "use GPS in such and so context" patents which meant it was (b) almost surely improperly granted, but was (c) intended to shake down honest users of an obvious idea, which would (c) be a hell of a lot easier to do for us if I so much as glanced at the damned thing.
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But the data is encoded in physical matter. If I were arguing on the patent holder's side, I'd argue that the creation of specific physical forms for the data is intrinsic to the usage of a DRM format, therefore the process is "transformative".
This is in contrast to something that is an algorithm. In this case while some physical form is needed in order to communicate that algorithm, it does not matter whether that is paper or an optical CD or photons emitted by somebody's screen. The container is entire
So Confused... (Score:2, Funny)
I'm so confused.
Help me Obi Wan. You're my
Sorry. Geek moment.
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Wow 171 claims!!! (Score:4, Interesting)
Big whoop that this patent has 171 claims. At a quick glance 168 of them are dependent claims. That means you find the main ones (1, 96, and 129) and look for holes there in what they claim. The other claims depend on those so they don't matter if you can break the parent.
Re:Wow 171 claims!!! (Score:5, Insightful)
Yeah, the patent is a monster that attempts to cover a hell of a lot of territory. It's got 171 claims, and is 97 pages long.
It covers every conceivable distribution channel (kiosks, internet, wireless, cable, device to device, publisher direct, etc.). At quick glance, it also covers encryption at just about every step in the process.
The patent isn't to protect an invention, it's to corner a market.
Parent
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In general, a patent is to give you rights to an invention. It gives you sole ability to profit off that invention.
However, it does not mean that nobody can come in and make a similar invention. Patents are (supposedly) limited in scope.
This patent IMO, is insanely broad to the point of prohibiting any remotely related product from ever being created. It covers every distribution method of any sort of DRM'd e-book.
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Wrong. Utterly wrong.
Each claim must be evaluated on its own merits, especially if you intent to "break" the patent by arguing that the claims are invalid.
The only time that you can focus only on the independent claims is when when you are arguing that a device does not infringe the patent, and that the device lacks one of the requ
Particular Machine or Apparatus (Score:2)
I wonder if Amazon implemented Kindle in software for the iPhone [slashdot.org] to head off this claim.
-Peter
I'm torn (Score:2)
I'm torn between hoping that this software patent is invalidated since almost anything you can implement in software is obvious to those skilled in the trade, and hoping that this patent is upheld so that Amazon will have to remove the DRM or be otherwise punished for their using DRM to restict right of first sale and fair use.
Trying to figure out which side to support in this case is enough to make one's head explode!
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Support Amazon. Their DRM only hurts people who chose to buy Amazon's DRM-infected crap. Bullshit patents, on the other hand, hurt everyone, even people who don't do business with Amazon.
Also, if Amazon loses, that doesn't mean they'll stop using DRM. They'll just license this patent holder's DRM, or use a different DRM scheme. Enforcement of this bullshit patent will not result in Amazon dropping DRM. Users abstaining from buying DRMed stuff, is the only way publishers will stop using DRM.
Fails the Obviousness Test (Score:5, Interesting)
If they'd actually even sold even a single unit of what they patented (if they ever did it was such a miserable market failure that the rest of us have never seen or heard about it) then they might have a case.
If they could show contracts for content delivery to their device with commercial providers of telecommunications services then they might have a case.
If Discovery Channel could show where they went to Amazon with their patent application - or anyone else, for that matter - and said: "See what we have invented in our minds. Would you like to build it and we both get rich?" then they might have a case.
As I see it Discovery Channel is not, and never has been, in the eBook reader business. They never tried to license their design, nor build it themselves. They couldn't build at the time what they patented and it's a mystery why they even patented it at all since this is not, and never was, their business. Now they're just a big bunch of patent trolls, aided and abetted by an incompetent Patent Office. I hope Amazon challenges and overturns this patent. And I hope that Prior Art project gets involved.
If the Patent Office actually made you deliver a working model of what you were patenting then a lot of this garbage would go away immediately. Imagine a working model of a perpetual motion machine?
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I think most of them are still compiling the application that will translate the summary for them.
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Not really off-topic. The summary is as densely written as an English undergrad's essay on Derrida.
The kind that reading the paper or eating the paper gives the exact same effect.
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Maybe, maybe not. It's not just a known encryption algorithm, it's DRM, so there's a process for getting and exchanging keys and so forth. If that process is fairly unique for this particular ebook reader, they may pass the obviousness test.
The real question is posed in the summary: is this a 'particular machine or apparatus' or is decrypting an e-book a 'transformation' process.
This is very similar Microsoft v. TomTom. Since the courts have yet to apply In Re Bilksi beyond the original case, we'll see h
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It's not quite the same thing. There is no 'obviousness' test in trademarks and trademarks need not even be unique. Take, for example, Morton's [mortonsalt.com] salt vs. Morton's The Steakhouse [mortons.com]. Two different industries.
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What exactly does trademark protection have to do with patents?
Same department [uspto.gov]. You know, like... Birth, Marriage, and Death Records.
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Not on the Kindle. It's a totally mundane symmetric encryption algorithm; the key is generated from the serial number in the firmware. There's no key exchange, there are no certificates. It really is the equivalent of "AES using the serial number of the hardware", but with a less well known encryption algorithm and some obfuscation of the serial number.
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The real question is posed in the summary: is this a 'particular machine or apparatus' or is decrypting an e-book a 'transformation' process.
I already commented [slashdot.org] that I think it's a particular machine, so I won't repeat myself on that. But I don't think this will pass the "transformation" test. The Fed. Cir. said that a transformation has to transform actual matter, or it has to transform data that represent actual matter. In other words, you can only be one degree removed from real matter (if you're thinking that sounds arbitrary, I agree). All they're doing here is obfuscating text. I guess you could argue that the text represents words on
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The patent does cover patentable subject matter. There are about 30 device claims drawn to an e-book reader. Bilksi has absolutely no bearing on those; an e-book reader is definitely patentable subject matter, despite what IDontBelieve wants to believe.
Also, even the method claims are tied to an e-book reader, which is very likely a particular machine. Bilski left open the question of whether a general-purpose computer is a particular machine, but an e-b
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Bilksi has absolutely no bearing on those; an e-book reader is definitely patentable subject matter, despite what IDontBelieve wants to believe.
Also, even the method claims are tied to an e-book reader, which is very likely a particular machine. Bilski left open the question of whether a general-purpose computer is a particular machine, but an e-book reader is hardly a general-purpose computer.
That's kinda freaky... you and morgan_greywolf [slashdot.org] did exactly the same thing.
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Agreed. Nobody knows about general-purpose computers.
Next, I never said that the hardware wasn't patentable subject matter, only that all the software/DRM claims were questionable after Bilski.
Ah, but there's the issue. You just said, in general, you thought the DRM software patent might be invalid. You didn't say anything about hardware claims, but you didn't say anything about method claims either. That's the fundamental thing that pretty much everybody on Slashdot misses about Bilski. It doesn't kill software claims, even if a general-purpose computer is not a "particular machine." It just means that all your software claims will ha
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To me it hinders my use of the Kindle,
Therefore I didn't buy it.
I honestly don't know if I would have bought it if it weren't DRM encumbered, but once I noticed that it was I stopped even considering it.
To me, DRM encumbered is the correct terminology. If it isn't for you, then YOU shouldn't use the phrase. That doesn't say anything about whether *I* should use the phrase.