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Looks like Dish may have spoken a bit too soon.

A little over a week ago, an appeals court determined that Dish Network (formerly EchoStar Communications) had indeed violated a software patent held by TiVo on digital video recorders.

While TiVo gleefully celebrated, Dish expressed disappointment, but assured its customers that none of its products would be affected because the software that was in violation had already been remotely updated by the company some months before.

Now it appears there's just a bit more to the story. Engadget has a blog pointing to notices Dish sent on Monday. The Colorado-based satellite TV company informed customers that though most of its DVRs are in the clear, there are four models--the 721, 921, 942, and Homezone 1022--that can no longer be sold because their software has not been updated. This only affects hardware bearing those model numbers that have not been sold or activated. If you already have one of those models installed, Dish says it is not subject to the injunction.

It's really important to note that these are fairly old models, so this likely won't affect many Dish resellers. The 942 model, for example, was reviewed by CNET in 2005.

It doesn't take much to put Apple in the news, and this afternoon's excuse is that a Miami-based company called PsyStar is selling a Mac clone.

Its Web site was down earlier--ostensibly because of the overwhelming reaction to its product. As Computerworld's Gregg Keizer reports:

Before its site went dark Monday, PsyStar was pitching an Intel-based system it said could be configured to run Leopard, Apple's Mac OS X 10.5. The machine, which was priced at $399 minus Leopard, $554 with it already installed, is powered by a 2.2GHz Intel Core 2 Duo processor and includes 2GB of memory, a 250GB hard drive, optical drive, and on-board graphics based on Intel's Graphics Media Accelerator (GMA) 950 graphics processor. The GMA 950 is part of several Intel chipsets--notably the 945 series--that are popular on PCs designed to run Microsoft's Windows.

There are a variety of issues here:

• Are Macs really overpriced these days, compared to a truly comparable Wintel alternative? (Certainly far less than in the past.)

• Is OpenMac a trademark violation? (Seems possible. I am not a lawyer.)

• Are any possible savings worth getting a PC-Mac OS combo that the Apple won't support? (Not from where I sit.)

• Does PsyStar have the right to preinstall an operating system for which it (apparently) doesn't have an original-equipment manufacturing, or OEM, license? (Seems dicey.)

But I wanted to focus on one issue in which I have some personal experience.

The Mac OS X end-user license agreement prohibits its use on hardware other than that sold by Apple. It reads, "You agree not to install, use, or run the Apple software on any non-Apple-labeled computer, or to enable others to do so."

A little legal history now. Way back in 1978, a company by the name of Digidyne brought suit against Data General, alleging that it was restraining trade by "tying" its RDOS operating system to its Nova minicomputer hardware. (Digidyne sold Nova clones.)

The case wound its way through the courts. A 1984 Ninth Circuit Court of Appeals decision held for Digidyne; the case was later denied rehearing by the U.S. Supreme Court.

It was a convoluted court case, but the bottom-line result was that Data General could not prohibit the use of its operating system on someone else's hardware. To use the legal term, you could not "tie" hardware and software. Related cases have involved prohibiting the use of specific supplies (such as punch cards) with a specific vendor's hardware.

My personal history here is that, at one point in my career, I spent many hours with huge Lotus 1-2-3 spreadsheets, working to unbundle Data General minicomputer operating systems from the hardware on which they ran--and to do so in a way that was hopefully approximately revenue-neutral, as well as not too annoying to any customers.

This was, of course, a wholly different generation of hardware and software than was in place at the time of the original lawsuit--and there were no actual Data General hardware clones any longer. But nonetheless, it had to be done.

Does that mean that Apple's end-user license agreement clearly breaks the rules? Well, few things are crystal-clear, when it comes to legal matters. In this 2006 post in InfoWorld, James Bailey's quoted comment gives a good precis of the relevant issues:

First, DG lost because RDOS was the only viable operating-system software for Nova and any clones. There was no other reasonable OS available for the clone makers. Dell can hardly claim the same, considering that they currently ship both Windows and Linux. Claiming that those two OSes are not "uniquely desirable by buyers" would be a stretch.

To quote the 9th circuit decision: "Although expressing some doubt as to the sufficiency of the evidence, the district court assumed defendant's RDOS was superior to competing operating systems and was viewed as uniquely desirable by buyers. 529 F. We do not share the court's hesitancy about the adequacy of the proof of the strong preference of many customers for RDOS. It was a most popular product."

Even DG admitted that there was no viable alternative. Again from the record, "the only full-service operating system available for the Nova."

Second, the court determined that to re-create RDOS would be prohibitively expensive and probably not practical. Again, with Linux and other free operating-system software readily available, it is hard to believe that the courts would come to the same conclusion in the case of Apple and OS X.

Bottom line?

Apple's end-user license agreement may or may not be an issue. The tying of hardware, software, or services has generally been frowned upon by the courts. On the other hand, the ultimate resolution resolves around specific facts about market power and the like. And, in any case, there would seem to be far more immediate questions about the PsyStar approach than those that would only be resolved by multiyear court cases (which would inevitably favor Apple, in any case.)

The fundamental question, perhaps, is this: in a world where Apple has moved to Intel processors, brought its pricing much more in line with comparable competition, and is, well, cool, how much opportunity is there for an unsupported cut-rate clone, anyway?

"Truth, Justice, and the American Way," the long-time slogan of Superman, possibly has a new meaning for the heirs of his co-creator, Jerome Siegel. A judge in Los Angeles has found that Siegel's estate is the proper owner of the copyright to the characters created in the first issue of Action Comics, which detailed the debut of Superman. Generally credited with jump-starting the comic book medium in 1938 and with being the first superhero, the Superman copyright has spent its 70-year career under the sole proprietorship of DC Comics, now owned by Time Warner.

In unusually concise language for a copyright decision, the judge concluded that, "After 70 years, Jerome Siegel's heirs regain what he granted so long ago--the copyright in the Superman material that was published in Action Comics Vol. 1. What remains is an apportionment of profits, guided in some measure by the rulings contained in this order, and a trial on whether to include the profits generated by DC Comics' corporate sibling's exploitation of the Superman copyright."

The scope of the ruling is limited to the contents of the first issue of Action Comics, does not address the pending litigation concerning the rights holder to Superboy, and does not address remuneration and other financial issues, but there's no doubt that this victory for the Siegel estate could have far-reaching effects for corporate copyright holders and those who've worked for them.

This post was updated several times, most recently at 7:40 a.m. PST, with additional reporting provided by CNET News.com's Dawn Kawamoto.

European Union regulators on Wednesday fined Microsoft a record 899 million euros, or $1.35 billion, for failing to comply with sanctions.

The fine specifically addresses sanctions over the pricing structure Microsoft had set for licensing of its interoperability protocols and patents.

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The EU's $1.35 billion fine for Microsoft is:

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The pricing issue is the last of three parts of the European Commission's historic March 2004 antitrust order, which called for the software giant to provide complete and accurate interoperability information to rivals so their software could work with the Windows operating system, as well as to license the information "under reasonable and nondiscriminatory" terms.

"We always knew the possibility of a fine (over the licensing fee structure) was...there, but no one knew when it would come or how big it would be," said a source familiar with Microsoft's thinking. "Now the other boot has dropped."

In July 2006, the Commission fined Microsoft 280.5 million euros, or $424 million, for failing to comply with the other two parts of its sanctions related to providing complete and accurate interoperability protocol information to rivals. The original decision from 2004 was upheld by the European Court of First Instance last fall.

In addition to the two fines for failure to comply, Microsoft was originally hit with a 497 million euro levy by the Commission for having abused its dominant market position at the time of that order. (The 497 million euros originally was worth $613 million. Today it converts to $752 million.)

The newest fine, announced Wednesday, is the largest ever imposed by the EU upon a single company. In total, the European regulators have fined Microsoft roughly $2.5 billion in the long-running antitrust dispute.

"Microsoft was the first company in 50 years of EU competition policy that the Commission has had to fine for failure to comply with an antitrust decision. I hope that today's decision closes a dark chapter in Microsoft's record of noncompliance with the Commission's March 2004 decision," EU Competition Commissioner Neelie Kroes said in a statement.

The ruling comes just one week after Microsoft announced a broad interoperability strategy, which included a pledge to not sue open-source developers.

"As we demonstrated last week with our new interoperability principles and specific actions to increase the openness of our products, we are focusing on steps that will improve things for the future," Microsoft said in a statement.

Although Microsoft's announcement and the Commission's fine come within days of each other, one source said the two were not related. Microsoft's announcement last week addressed how the software maker would apply the Court of First Instance's ruling to the rest of its business, according to the source.

In its new order, the Commission specifically said that Microsoft had charged "unreasonable prices for access to interface documentation for work group servers."

According to the EU's ruling, Microsoft initially had demanded a royalty rate of 3.87 percent of a licensee's product revenues for a patent license and a rate of 2.98 percent for a license giving access to the secret interoperability information. In May 2007, following complaints by the Commission, Microsoft reduced its royalty rates to 0.7 percent for a patent license and 0.5 percent for an information license within the EU. Worldwide rates remained unchanged.

On October 22, 2007, Microsoft began providing a license that gives access to the interoperability information for a flat fee of 10,000 euros and an optional worldwide patent license for a reduced royalty of 0.4 percent of licensees' product revenues, the Commission said.

The view from the competition
Microsoft's competitors and adversaries wasted no time in weighing in.

The European Committee for Interoperable Systems applauded the Commission's move.

"Commissioner Kroes is to be commended for her perseverance over the last three years in the face of Microsoft's foot dragging and appeals to the Court of First Instance," Thomas Vinje, ECIS legal counsel, said in a statement.

ECIS, which comprises Microsoft rivals Oracle, RealNetworks, Sun Microsystems, IBM, and others, further characterized Redmond as preferring to pay antitrust fines rather than allowing "merit-based competition" to occur in the marketplace.

Last month, the Commission announced it was initiating a formal investigation into Microsoft, focusing on potential antitrust violations regarding bundling of its products with its dominant operating system.

Browser maker Opera Software had initiated a complaint to the Commission, alleging that Microsoft was violating antitrust laws by tying its Internet Explorer browser to its Windows operating system. Opera highlighted concerns that Microsoft was adding new proprietary technologies into its browser that diminished interoperability with open Internet standards.

As part of its investigation, the Commission said it would also look into a complaint by ECIS. That complaint alleges that Microsoft refused to disclose interoperability information for a broad range of its products, including its Office suite, server-related products, and .Net framework.

Qtrax is the first free and legal music download service that sounds promising enough to check out. (They claim it's a "P2P" service, but I'm not sure you can upload anything, so that disqualifies it in my book.)

They're advertising 25 million tracks, and claiming that all four majors are onboard, although Warner apparently begs to differ. Files are encrusted with DRM, but only to prevent users from burning them to a CD--transfers to any Windows Media-compatible portable music player are OK, and iPod support is promised later this year. (Qtrax hasn't said whether this is a reverse-engineering kludge like RealNetworks pulled off a few years back or if Apple's actually taking the unprecedented step of licensing FairPlay.) It's advertising-supported, but ads are easily ignorable, and I was planning on transferring songs to my Zune anyway--there's no way to display ads there.

So I was looking forward to downloading the Firefox-based client, downloading some new-ish music I'm still on the fence about (LCD Soundsystem), experimenting with older music I've been meaning to check out but never have (where to start with the Jesus Lizard?), and testing the depth of their catalog with some '70s metal ballads I'd never buy but might someday want to hear just for old times' sake (UFO's "Love to Love," Blue Oyster Cult's "I Love the Night").

The beta software is supposed to be "available at midnight, EST!" (Their exclamation point, not mine.) The servers were so overloaded for the first 20 minutes, the site kept timing out. Now, at 35 after, the download page is showing up, but there's nothing there to download.

If first impressions are anything to go by, Qtrax fails. But I'll give it another chance tomorrow and let you know if it's worth the download.

The Richter Scales have reposted their "Here Comes Another Bubble" video sans the much-disputed Lane Hartwell photograph of Owen Thomas that they used in the original video without permission and without attribution. Lane has also made a statement:

As the Richter Scales stated in their blog, the video that used my image--without my permission--was viewed just under one million times on YouTube. In the end, the band opted not to work with me toward a fair resolution of the issue. I have to say that I'm very disappointed with the members of the band I negotiated with in good faith.

Lane goes on to say:

I will be sending the band an invoice for their use of my image in the first version of the video. I hope they pay it as I'll use the money to pay my lawyer and donate the rest to KidsWithCameras.org. Kids with Cameras is a nonprofit organization that teaches the art of photography to marginalized children in communities around the world. This was the offer I proposed to the Richter Scales that they chose to disregard.

Thus, it doesn't appear that, in this particular case, attribution in the original video would have put a stop to this controversy before it began. Perhaps if the band had asked in advance. I don't know. When people have requested to use my photographs in a book and, in one case, a PBS documentary I've always said yes for the price of a photo credit. But that's me. And I'm not a professional photographer with a history of having her photos and those of her friends ripped off.

Jonathan at Plagiarism Today has a great recap of the entire imbroglio. Among his lessons learned:

Attribute obsessively: If you use other people's content in any way, attribute, attribute well, and attribute graciously. It is best to follow industry standards here and to start out with the intention of doing so rather than having to go back and do it later, when it is much harder.

And:

Remain calm: When emotions get involved, as they often do with content theft and plagiarism issues, it is easy to lose sight of how important a case really is. Some are more important than they seem, others are less. This case was the latter. It is important to focus less on feelings and more on legal issues and how a case of plagiarism can potentially help or hurt you.

As I noted yesterday, my own feelings were pretty conflicted about this tempest. Lane's DMCA takedown notice that bumped the original video off YouTube seemed somewhat disproportionate to me. On the other hand, the Richter Scales largely hid behind a Fair Use copyright defense. Leaving aside whether Fair Use applied here (it's at best a borderline case); it's just bad manners and bad practice to not give attribution to all the people whose work the group used--as they have now done in the revised video. This case--and many others like it--is far more about proper societal behavior than it is about the nuances of copyright law.

As "Miss Rogue" writes in "Tragedy of the Commons: Lane Hartwell vs Richter Scales:

Since the video was viewed hundreds of thousands of times (prior to takedown), there was a missed opportunity there for the many photographers whose photos were used to make this group famous. In a post titled Credit and "Here Comes Another Bubble", the author explains:

"We did make an effort to credit those people we actively worked with on the video, as well as Billy Joel, which we listed in the comments on YouTube and on our blog. But, given the large number of sources we used, the task of assigning credit for each source seemed impractical."

He goes on to mention Lane Hartwell...without linking to her photos or her Web site. As one commenter said, "Basically if I am reading your post correct, what I hear you saying is, 'Mea Culpa, but we're lazy.'" In actuality, the time one can take to list the photo credits is a fraction of the time it would take to go out and duplicate the work of those artists to make the same presentation.

I'm unsure what good will come out of this whole incident. The problem is that when emotions run high, as they did here, people tend to spend more time fortifying their own positions rather than exploring new ones. However, I can at least hope that it's at least raised a little bit the general awareness around giving proper credit for images and other material from the Web.

I've held off posting about the whole Lane Hartwell, Richter Scales, "Here Comes Another Bubble" brouhaha. I've done so, in no small part, because my own feelings on the topic are...complicated.

On the one hand, I generally favor people sharing their creative output to the degree that it's economically feasible to do so. Our culture is richer and more interesting for the widespread tearing down of walled gardens.

Just to be clear, I'm not advocating some parodic version of free culture in which any content that can be grabbed should be grabbed and there's nothing anyone can do about it. Rather, I'm just suggesting that rigid and unrelenting copyright enforcement for even relatively minor infractions doesn't make me terribly comfortable. (I understand that, for Lane Hartwell, the Richter Scales' use of her photo was a sort of "straw that broke the camel's back" because of past use of her pictures without permission.)

On the other hand, as I've read through some of the commentary and comments in this case, I've gotten a bit irritated. This comment is fairly typical: "A photo of some grinning geek is not protected art. It's a commodity, such as a phone number or the atomic weight of carbon." In other words: eh, it's only a photograph. What's the big deal? As a sometimes photographer, I can't tell you how many times I've run into a similar attitude, even from writers who would have plenty to say if you grabbed a piece they had written and "repurposed" it.

There's also been a great deal of poorly informed commentary about Fair Use. Jason Schultz at LawGeek gives the best rundown of the legal issues in this case that I've seen. I'm not sure, based on a lot of discussions and reading about copyright law in the past, that I agree with his ultimate conclusion (that the use of the photo was probably Fair Use). In any case, as he says, it's a close call in an area of copyright law that is notoriously squishy and very dependent on the specific facts in a given instance. So, if you want to read up on the legal issues involved, I defer to Jason's post.

However, in my view, Jason's most important point has nothing to do with the law.

I'm no Internet ethicist, of course, so I can't really say what the proper ethical outcome should be for this or other similar situations. However, for me, the idea of attribution and promotion have strong appeal. They respect who the artist is and try to help them thrive in their work. I also think ethical online users should consider tithing any financial gain from the use of other people's works back to the original creator--in essence voluntarily offer to post-date royalties if the project amounts to anything profitable. Such steps would, IMO, go a long way to building a stronger online creative community rather than tearing it down or apart.

There are, of course, cases where misappropriation of posted material isn't going to be remedied by adding a photo caption or a byline, but it's often all anyone is looking for. I have no idea whether that would have been sufficient in this particular case or not, but for a lot of us, getting the proper credit is mostly what we're looking for.

Rather than letting Microsoft's antitrust oversight end in November, the current oversight should be maintained through 2012, prosecutors for six states and the District of Columbia said in a court filing this week.

The group of states said at a hearing last month that they would make the request. The filing, made Tuesday, argues that Microsoft took years to make fully available the communications protocols required under the 2002 accord, and that there are still few PC makers offering rival browsers to Internet Explorer with new PCs.

Microsoft brushed off the concerns.

"This is not new," company spokesman Jack Evans said in an e-mail. "Yesterday's filing formalizes the arguments that California and a few of the states made during the status hearing in September...We believe, and the Department of Justice has stated, the consent decree has served its purpose, ending practices the courts found were anticompetitive, and providing additional legal remedies as well.

A status conference in the case is slated for early next month.

I got an email from Fred von Lohmann of the Electronic Frontier Foundation yesterday. It began, "Half the companies you blog about have copyright or privacy legal issues simmering just under the surface. Since most of them are thinly capitalized, when they get into trouble, they're likely to call EFF for legal advice. Several already have."

I called von Lohmann right away, since I've had a nagging feeling for months that too many of the interesting products I've been seeing were legally shaky. So I talked with him to come up with this list: 9 Fun Ways Web 2.0 Startups Can Commit Legal Suicide.

For more information than can fit in a blog post, you might want to check out the EFF's upcoming Compliance Bootcamp on Oct. 10 in Mountain View. I told von Lohmann I'd link to the event in exchange for this preview.

1. Ignoring the rules of Safe Harbor

Many media sharing sites, like SimplifyMedia, exist in a narrow legal framework carved out of the DMCA. But you can't take advantage of the Safe Harbor provisions of the DMCA if you don't register as a "copyright agent." All that's required is filling out a form and paying an $80 fee. You can't get protection without registering. As von Lohmann said, "The difference between you and Napster might be this form."

2. Ignoring the Terms of Service chain

This applies to sites that collect or aggregate data--like Mint, which collects its users' financial information. The sites where the data are coming from may have terms of service that prohibit their users from sharing them with third parties. Sites that collect this information may be seen as encouraging breech of contract, which is a legal exposure.

3. Falling for a sob story

If you're collecting personal information from or about people, there will be other people who want it. They may call up your company and give someone there a convincing story to get it. If your team falls for this "pretexting," or social engineering, users can sue you for exposing their information.

... Read more