Saturday, January 07, 2017

The question "who invented email?" to be decided in a libel case in Massachusetts?

In the realm of "inventorship disputes" (broadly construed), Shiva Ayyadurai, represented by Charles Harder of Gawker/Hogan fame, filed a $15 million libel lawsuit in Massachusetts, against Mike Masnick and the Techdirt parent company Floor64 Inc.

One issue concerns a 2014 post on TechDirt titled: "Why is Huffington Post Running a Multi-Part Series to Promote the Lies of a Guy Who Pretended to Invent Email?" So, Ayyadurai is unhappy with Masnick for stating that Ayyadurai did NOT invent email when Ayyadurai believes Ayyadurai did invent email.

For background, see a 5 January 2017 post in the Hollywood Reporter titled Self-Proclaimed Inventor of Email Files Defamation Lawsuit Against Techdirt's Mike Masnick .

See also a post on Huffington Post titled Self-Proclaimed ‘Inventor Of Email’ Is Back With Another Defamation Lawsuit ,
which includes the relevant text:

Over at Fortune, Jeff John Roberts has gathered the opinion of media lawyer Ed Klaris, who said TechDirt would likely succeed if this case went to trial:

“This is a classic scientific debate, which is a cornerstone of the First Amendment, second only to political debate. Theories of who invented something as basic as email software code need to be free and open and not constrained by claims of libel,” says Klaris. He adds that TechDirt’s comments about Ayyadurai amount to rhetoric and are part of the debate, and that the claims in question are not provable.

However, as Roberts goes on to note, in order to win at trial, Masnick would have to mount a costly defense — and the cornerstone of Harder’s strategy in the Gawker cases was less about making a case at trial and more about breaking his opponents’ bank.

Of course, in the PATENT LAW context (which the Ayyadurai matter is not within), the USPTO and courts make decisions about "who invented" something all the time. As noted elsewhere, one of the contestants in the CRISPR fight labeled an adversary a mere second comer. Libel?

Separately, do patents themselves create First Amendment issues? In the Intellectual Ventures case, Judge Mayer wrote that "patents constricting the essential channels of online communication run afoul of the First Amendment." In his view, "[p]atents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse."

**At least two issues that likely will come up if the Ayyadurai case goes to trial:

--how is "email" going to be defined? Communications between users, even under the rubric "mail" in UNIX, long preceded the Ayyadurai work, which was coded in Fortran. Ayyadurai likely would try to limit the scope of "email" to require the elements he brought to the table, which persist in email as presently understood (e.g., subject line, cc/bc)

--how is "invention" going to be defined and what does registering code for copyright protection say about "invention"? [Recall some of the background discussion in Lotus Development Corporation v. Borland International, Inc., 516 U.S. 233 (1996)]

**There is a New Jersey connection in this matter. Shiva Ayyadurai was a high school student at Governor Livingston High School, and did the "email" work at what is now UMDNJ (then the College of Medicine and Dentistry of New Jersey (CMDNJ)).

** As background to the Ayyadurai matter, see

Recollections of a Mentor and Colleague of a 14-Year-Old,
Who Invented Email in Newark, NJ
, which includes text

In 1978 , a colleague from our parent IT organization approached me to ask if I would spend some time with her son, Shiva, a 14-year-old high school student from Livingston New Jersey. Meenakshi Ayyadurai, Shiva’s mother, told me that her son had just completed a summer program in computer programming at the Courant Institute of Mathematical Sciences at New York University for young persons who had demonstrated promise in mathematics.

[As an aside, LBE, as a high school student, participated in a computer program at NYU's School of Commerce, and roomed with Walter Tunison, and got to know, among others, Scott Harper and Elliott Winick.]

AND note, as to giving the name "email" to the system:

The FORTRAN IV compiler limited variable names to six characters. Moreover, the RTE/IVB operating system running on our HP1000 computers limited process names to five characters. Did I hear EMAIL? Of course! Our new service was electronic and it combined many if not all of the characteristics of paper mail. I can attest that Shiva was the sole author of the entire EMAIL program and system. A few years later, Shiva, obtained a copyright on the name. Nearly 500 users used the system. The rest should be history.

[One does not expect to obtain copyright protection on a five-letter word. See for example 37 CFR 202.1 which states in pertinent part: The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: (a) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents (...).
Note also from Arica, 970 F.2d 1067;:all but twenty or so refer to single words or short phrases which do not exhibit the minimal creativity required for copyright protection. See Arica, 770 F. Supp. at 191-92; accord Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir.), cert. den. 484 U.S. 890, 98 L. Ed. 2d 177, 108 S. Ct. 213 (1987); 1 Nimmer, Nimmer on Copyright § 2.01[B] at 2-16. AND See also Fryer v. Brown, 2005 WL 1871112, at *2 (W.D. Wash. Aug. 2, 2005) (copyright law does not protect a plaintiff's creation of the word "autoupolstrykits.") BUT note Life Music, Inc. v. Wonderland Music Co., 241 F. Supp. 653 (S.D.N.Y. 1965)]

A theme which appears in several posts:

Innovation can happen anywhere, anytime by anyone. The sooner we embrace this truth, the sooner our lives will be enriched by the thousands of other “Shivas” that do not have the luxury of working in the established bastions of innovation, but nevertheless have the intellect and drive to make big contributions.

**In terms of economic issues arising from being named/not named an inventor in the PATENT context, recall words from the Shukh case:

Today, we hold that concrete and particularized reputational
injury can give rise to Article III standing. As we
noted in Chou, “being considered an inventor of important
subject matter is a mark of success in one’s field, comparable
to being an author of an important scientific paper.”
254 F.3d at 1359. We reasoned that “[p]ecuniary consequences
may well flow from being designated as an inventor.”
Id. This is particularly true when the claimed
inventor is employed or seeks to be employed in the field
of his or her claimed invention. For example, if the
claimed inventor can show that being named as an inventor
on a patent would affect his employment, the alleged
reputational injury likely has an economic component
sufficient to demonstrate Article III standing.

link to IPBiz post:

Plagiarism hinders scientific progress

** See also the post Leslie P. Michelson Director of High Performance and Research Computing Division, Rutgers Medical School

See also from A Piece of Email History Comes to the American History Museum. A groundbreaking early email program, written by a high school student in 1979, helps tell the story of this crucial technology's history

***Note that discussions about Mike Masnick have appeared on IPBiz

Tuesday, April 22, 2008: Mike Masnick, the "emperor" with no clothes?, including:

And, Mike missed Dudas' understated point: the IT companies pushing for patent reform are the biggest offenders in pushing silly patents like the toilet queue patent. Mike, it's not solo inventors or patent trolls that are flooding the USPTO with incremental concepts; it's IBM, Microsoft, Cisco, Apple, et al. Mike, Jon Dudas was telling you it's the IT guys who ARE the current problem.

[In passing, recall who became USPTO Director under Obama!]

Masnick and Lemley-isms

The question is simply: does the accused infringer's product or process fall within the scope of a claim of the asserted patent?

Nevertheless, Mike, not wanting to sound like the Harvard Business Review's "plagiarize with pride," tried to sugar-coat reality:

The truth is that it's very, very rare for a patent infringement lawsuit to actually involve a company that copied (or, as the patent system supporters would falsely claim, "stole") someone else's invention. Usually, it's about companies coming up with a similar offering independently.

Of course, "independent creation" is not a defense to infringement in US patent law.
It's irrelevant. Further, a lot of the "independent" creation in the IT industry arises because the bosses tell the researchers NOT to read patents. Nothing like re-discovering the wheel. (...) The Masnick world is a wasteful world in which people are forever re-doing previous work.


Masnick again


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