Today, Sen. John Cornyn (R-Texas) introduced the Patent Abuse Reduction Act, a wide-ranging bill targeting abusive litigation tactics—a favorite tool of the patent troll. 

The good news first. The bill would do significant harm to the patent troll business model, making it harder to be a troll and easier to fight one in court. Patent trolls have long taken advantage of the fact that patent litigation is expensive (costing into the millions of dollars) and can take years, draining companies of resources. Patent trolls are in the very business of litigation and deploy a variety of techniques (shell companies and contingency fee arrangements, for example) to keep their own costs much lower.

The proposed legislation would level this playing field by incorporating one of our favorite reforms, fee shifting. This means that if a party accused of infringing a patent actually fights back in court and wins, the troll could be on the hook. (Unfortunately, the legislation doesn't require the suing party to post a bond—an important tool for deterring patent trolls.) The bill also includes provisions limiting the type and amount of discovery a troll can get and what kind of information a troll needs to disclose at the outset of a lawsuit. The latter is particularly promising because it would force patent trolls to do true due diligence before they sue and to name who is really behind the lawsuit (information that is currently quite difficult to find). These provisions make the troll's case more expensive and takes away another of its favorite tools—secrecy.

The not-so-good news is that these reforms are all litigation focused and, thus, limited. We believe the problem is much bigger. The bill does not address patent quality and fails to consider what the Patent Office could do to help those facing lawsuit threats. It does not include protection for end users, consumers who find themselves staring down patent trolls over widely available technologies. And it fails to address the very root of the problem by not considering whether we should be able to patent software to begin with.

We will continue to raise those issues and fight those fights. In the meantime, we are encouraged to see the introduction of large scale-reform that would go to the heart of the patent troll business model. We hope that those policy makers who have publicly recognized the patent troll problem will join in the upcoming debate on this important legislation.

This past April, six Republican Senators – Alexander, Burr, Coburn, Enzi, Roberts and Thune – released a white paper, titled “REBOOT: Re-Examining the Strategies Needed to Successfully Adopt Health IT,” that is critical of the implementation of the HITECH Act’s investment in health IT and the Meaningful Use incentive program in particular. In the report, the Senators identify deficiencies related to health IT implementation in five areas: (1) path toward interoperability; (2) costs; (3) oversight; (4) patient privacy; and (5) path to sustainability. Overall, the report urges that taxpayer investments in health IT be leveraged to benefit the public but without unduly burdening health care providers in the process.

CDT submitted a letter during the open public comment period provided for in the report. Some issues related to health IT implementation, such as achieving interoperability among disparate electronic health record (EHR) systems, have proven frustratingly difficult to resolve. In enacting HITECH, Congress tried to bring about adoption and use of electronic medical records more rapidly than such change would have occurred absent a federal incentive program – and in fact, adoption of health IT has far exceeded expectations. The multi-stakeholder approach to implementing HITECH has followed the balanced approach recommended by the report: providing value to taxpayers by driving meaningful change to benefit patients and improve health outcomes, while at the same time minimizing burden to providers and others in the health care industry. Hitting “pause” (or even “stop”) on this program would frustrate those aims.

The report raises privacy concerns – but without identifying specific issues or suggesting recommendations. CDT urges the Senators to support more robust efforts to ensure compliance with federal privacy and security laws, both through better enforcement and the issuance of more comprehensive guidance.

There is exciting news out of the Green Mountain State this week: folks in Vermont are so fed up with patent troll abuse that they are taking matters into their own hands. With trolls filing thousands of lawsuits every year and blanketing the country in threat letters, states are looking for ways to protect victims—especially small entities that lack the resources to defend against a patent suit. Vermont is tackling trolls on two separate fronts.

First, the State Attorney General has filed a groundbreaking complaint against the infamous scanner troll MPHJ Technology, alleging unfair and deceptive acts under Vermont's Consumer Protection Act (PDF of the complaint). The tale of the scanner troll is one of the most outrageous patent stories of the year. This troll hides behind an alphabet soup of shell companies and sends demand letters to small businesses all over the country demanding $1,000 per employee for the privilege of using scanners and email.

The Attorney General has zeroed in on letters the scanner troll sent to nonprofits that assist developmentally disabled Vermonters. The AG alleges that the scanner troll did not conduct due diligence before sending these letters and made deceptive statements about its threats of suit and whether other companies had taken a license. At its heart, the complaint alleges that the scanner troll is sending these demand letters in bad faith. To our knowledge, this is the first time a state attorney general has taken action like this against a patent troll. We will watch this case with interest.

Not content to strike back against a single troll, Vermont is also poised to pass a bill dealing with the problem as a whole. The Vermont House and Senate recently passed a bill to combat "bad faith assertions of patent infringement" (H.299, PDF). And the latest word is that Vermont's governor is about to sign it into law.

This bill requires patent demand letters to be specific about the claim being violated, to be particular about how the target is violating the patent, and to give targets a reasonable estimate of the damage costs coupled with a reasonable time to respond. (It's funny: patent trolls usually have broad demands, are vague about violations, and pressure their targets to respond hastily with their purses open.) If a court finds a demand to be meritless or deceptive, they can swing down with full force and lay heavy fines on the bad actors, who are more than likely patent trolls.

This bill could solve some of the patent troll problems in Vermont. Unfortunately, it raises some serious constitutional questions around preemption (the doctrine that federal law invalidates state law when they are in conflict) and federal due process (which generally protects the right to take cases to court or make demands when they're sent in good faith). Vermont lawyer Justin McCabe at Green Mountain IP has a good analysis of the bill's pros and cons.

Apart from important constitutional considerations, passage of the Vermont bill demonstrates just how much patent reform is in the spotlight. Fixes on the national level are popping up like daisies, and—not surprisingly at all—they all attempt to tackle the troll problem from completely different angles. While we admire these bills' creativity, the obvious takeaway from this fact is that there are a lot of areas of the patent system that are very, very broken. So let's take a step back and push for real, comprehensive change.

#FreeBassel / David Kindler / CC BY

If you subscribe to Creative Commons’ newsletter or follow us on Twitter and Facebook, you’re likely familiar with the story of Bassel Khartabil, our friend and longtime CC volunteer who’s been in prison in Syria since March 2012. Today, on the second birthday that Bassel has spent in prison, friends of Bassel and members of the open community are taking a moment to reflect on his situation and call for his release.

The Index on Censorship, which honored Bassel in March with the Digital Freedom Award, has compiled a collection of birthday wishes for Bassel:

I just want him free, I pray for him to be free and I pray for all his friends who believe and work on Bassel’s freedom. – Bassel’s mother

It is your birthday. It is not a day of happiness — yet. But when justice is done, and you are released from your wrongful imprisonment, all of us will celebrate with enormous happiness both this day, and every day that you have given us as an inspiration for hope across the world. – Larry Lessig, founder of Creative Commons

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Our friend Jon Phillips, organizer of the #freebassel campaign, has launched a project called FREEBASSEL SUNLIGHT. In Jon’s words, “Please help shine some sunlight on Bassel by doing some novel research on his situation, where he is located, and help connect the dots of his situation and life.”

Artist and filmmaker Niki Korth recently developed a game that uses quotations from Bassel to start conversations about free and open communication, the conflict in Syria, and other topics. Niki has been publishing the playing cards online as well as videos of people playing the game.

Earlier this week, Niki led a few of us at CC in the game. You can watch our responses to several of her questions on her Vimeo page.

In this video, CC CEO Cathy Casserly voices our shared hope that we’ll see Bassel soon:

Read more

• Free Bassel, Free Culture
• Lawrence Lessig’s WSJ Article on Bassel Khartabil

Unfortunately, there was a technological glitch and I didn't get to finish my presentation on digital preservation at the 2013 House Legislative Data and Transparency conference. I've attached my presentation notes (PDF) in case anyone is interested. I'd be interested to hear comments.

Nothing shines a light on problems quite like a scandal. If we’re lucky, it means that we take a closer look at not only the issue that makes the headlines, but the issue ecosystem. The recent back and forth about IRS incompetence regarding screening 501 (c)4 groups has prompted a secondary discussion about the very nature of many of these groups – that, increasingly, they are being used as vehicles to the hide the money raised to buy elections.

In Colorado and Washington DC, strong campaign finance laws were passed to rein in Big Money’s influence on elections.  Now those laws are under attack from powerful interests who aren’t afraid to get creative when it comes to hiding their actions. To make matters worse, they are supported by an out of touch and activist Supreme Court.

The people get it, but our leaders don’t.  Just look at the lack of action by the Colorado congressional delegation after explicit instructions from their voters to do something about the problem of money in politics. As the Denver Post’s Curtis Hubbard reminds us, 74% of Colorado voters said yes to Amendment 65.

I don’t mean to excuse or even ignore the IRS’s loathsome targeting of the conservative groups, but the role of unchecked money in politics also merits scrutiny.

Colorado voters last year tasked our congressional delegation with doing something about the issue.

Amendment 65, which directed the lawmakers to support a constitutional amendment that would rid our system of unlimited spending by corporations and labor groups, was supported by nearly 74 percent of voters.

How amazing is that?

You could ask if John Elway is the best quarterback in Denver Broncos history and very likely not get 3 out of 4 people to agree (silly Tebow fans, but I digress).

The Denver Post, Hubbard: Tax-exempt politics, May 19, 2013. 

The fact that there has been little to no response on Amendment 65 is an indication that our elected representatives are no longer fully representing us. Its not too late for our congressional delegation to stand up for their constituents and fight back against big money in politics.  I hope our congressional delegation is reading.

A new report from the Organization of American States envisions possibilities for ending the war on drugs and introducing policies rooted in public health and human rights.