The Copyright & Patent Wars by Jim Pinto

Sep. 06, 2008

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Copyright law, originally written to protect books and maps, has been constantly revised and stretched. Today there is no standard way to ensure that the owner gets paid when their work is bought, or used. And in industrial automation, it’s a whole, different ballgame.

Copy of a copy – with no degradation

The original definition of a "copy" meant a tangible object, like a book, which was not easy to copy. Audio and VCR tapes are easier to duplicate, but the copies degrade with each successive copy. But now, digital objects like e-books, MP3 music and digital movies (DVD) copies can be duplicated quickly and easily, and each copy is as good as the original. So, how does one protect the copyright?

The ability to digitize and transfer intellectual property from one PC to another is a serious problem that has authors, musicians, artists, photographers, software programmers and publishers at odds with each other and their customers. There is not even agreement regarding how many times the buyer should pay: once per use, per person, per household, or for every single device in a household.

P2P Dowloading

Since the rise and fall of Napster, the ways in which we buy, sell and distribute music have changed dramatically, possibly forever. Napster was the first major examples of file downloading, where people simply copied MP3 music from each other’s computers, peer-to-peer (P2P). However, Napster was not a completely P2P system, because users registered their file libraries with a central server when they logged on to the service. Because of this central link, it was possible for opponents to force Napster to stop facilitating free music downloads. Napster’s file-sharing system was shut down by the American courts because it was deemed to be contributing to copyright infringement in allowing the distribution of music files.

The Napster replacements, true peer-to-peer (P2P) networks like Kaaza and Morpheus, are now operating seemingly with impunity, because there is no central server to “shut-down”. They are now generating traffic many times the rate of Napster at its peak.

Breaking the impasse

Two new things have emerged to break the impasse. The copyright owners have now gone on the offensive. They have started intimidating advertising to the offending consumer – “we know who you are!” But, this has very little impact on what is clearly a widespread practice, too broad to make a difference.

As a next step, the major labels started to swamp the P2P networks with "spoofs" – bogus or faulty copies. A song is available under its usual name, but when it is played, it bursts into noise halfway through. This is just a nuisance – persistent pirates will continue to download till they get good copies. On the other hand, though no one will admit it, the anti-pirates may even be inserting viruses into the spoofed music.

But now, there's a legal option that nearly everybody likes. Sensing a market opportunity, Steve Jobs and his team at Apple Computer negotiated deals with Universal, Warner, BMG, EMI and Sony, plus a bunch of major artists to offer what may prove to be the most promising alternative to pirated music – clean downloads at 99c. each, with virtually no restrictions on how and where the songs can be played.

Early signs are very positive – Apple's iTunes Music Store sold more than one million songs during its first week alone. Over half of the songs were purchased as albums and over half of the 200,000 songs offered were purchased at least once. In that first week, Apple received orders for more than 110,000 new third-generation iPods and more than a million copies of iTunes-4 software were downloaded.

It seems that Steve Jobs has proved his leadership again! Apple may have pointed the way to solve the pirated music problem. Clearly consumers have become used to new ways of obtaining music, and the demand for online availability of albums and singles is only going to increase. Eventually, legitimate channels will become more widely established, and will be better understood by consumers.

Movies & DVD Copying

Copying an audio recording is one thing. But copying an entire movie, which may have taken millions of dollars to produce, is a scary proposition for the film producers. Recordable DVD drives are on the market, and new blue-laser discs are each able to hold an entire high-definition feature film. The DVD content-scramble system called CSS was broken by DeCSS, the software utility created by a 16-year-old Norwegian. While legal moves are afoot to make DeCSS illegal, underground use continues. And meanwhile, broadband connections to download this type of content are getting faster, and the numbers of users are increasing fast. It's a serious problem!

As it became clear that P2P networks were not disappearing despite court rulings, legislators are being lobbied by the Hollywood big-guns to put in far-reaching new laws. This includes proposals that would require all computers or digital devices to have built-in copy-protection technology. Some are even suggesting that copyright owners could legally use hacking techniques to attack file-swapping networks. But national security and economic issues distract Congress, and the copyright measures are making little progress.

Copyrights for industrial automation products

In the automation business, there are very few standard products that sell in high quantities, or are used widely enough to be susceptible to broad-scale illegal copying.

Electronic products have two parts that may be proprietary: hardware and software. Hardware in most automation products is not easy to copy – at least for the average user who wants to use just a few units. Of course, competitors can copy both the form-factor and the functionality. If this happens the product has become a commodity, available from many competitive sources, which reduces profit margins. To prevent commoditization manufacturers try to patent at least some of the functionality. However, electronics patents are somewhat difficult to enforce.

Some larger product manufacturers utilize ASIC chips, which take a high upfront investment (hundreds of thousands of dollars, if not millions) and are virtually impossible to copy. However, the product functionality can still be “emulated” with discrete or standard components, if the concept itself is not patented.

Copy protection for industrial software

You won’t find industrial software on Kaaza or other P2P sites. Industrial automation software is usually high priced ($ 10,000 and more) and typically low volume (few thousand units at most) with a significant amount of customization for specific user applications.

In the past, industrial software was copy-protected through the use of a security hardware key called a “dongle”. This device usually connects to PC parallel ports and the software checks a hard-wired code on it to operate correctly. The dongle passes signals through for printer or other hardware with no loss of functionality. Without the dongle, the complete package of software operates as a “demo”, with limited functionality. Complete functionality is obtained only when the dongle is connected.

Dongle-based copy-protection is not foolproof and there are software systems which can be used to bypass it. However, though this is seldom done in the industrial marketplace because of clear visibility of end-customers and the supply chain (distributors, sales Reps, integrators etc.)

New copy-protection systems include database capabilities for registration and on-line transaction processing. A central server provides computer specific keys and product serial numbers enabling suppliers to "sell" serial numbers and keep conventional channels involved in the sales process. Value-adding channel partners profit from increased sales flexibility while suppliers profit from increased product promotion. This type of digital licensing solution can be implemented quickly and effectively.

Many companies are operating various other forms of software copy protection. But the problem remains that most of these can be over-ridden, leaving the company with the job of pursuing infringement when it occurs.

Third-party pursuit of patent infringements

In the automation business, another form of copyright infringement protection has begun in just the past few years – the purchase of patents by a third party that then pursues supposed infringers. In one famous case, Solaia Technology bought patents rights in an auction in early 2001 from Schneider Electric's Automation Business. The patent, applied for by Square D in 1987, appears to cover the transfer of information from spreadsheets to PLCs for the purpose of automating manufacturing. Solaia apparently has no products, but is solely in the business of licensing patents.

What is particularly interesting is that Solaia isn't suing Rockwell Automation (the product manufacturer) for patent infringement; they are suing Rockwell's customers. Some customers subsequently sued Rockwell, seeking the PLC maker's help in defending the lawsuits. Rockwell then sued Solaia (and their law firm) to try to protect their customers. It looks like a legal morass, with the customers caught in the middle.

The Solaia & Rockwell legal battle is separate from another automation patent infringement suit directly involving Schneider Electric. Schneider owns three patents, including two bought from Ken Crater of Control Technology Corp. The patents involve the translation of data from Ethernet, TCP/IP, and HTTP protocols over the Internet into data usable by a PLC. Schneider has been litigating against Opto 22, and this suit has recently been settled.