Patent holder's demand: stop discussing my patent

Roy van Rijn is a Dutch open source/free software developer who wrote a blog-post explaining some audio-fingerprinting algorithms he was experimenting with, along with a few code-fragments, and a promise to release all the source code. Unwisely, he called his post Creating Shazam in Java (Shazam is a commercial audio fingerprinting tool), and this attracted a notice from Darren Briggs, the Chief Technical Officer of Landmark Digital Services, LLC, which holds the patents used in Shazam.

Briggs said that van Rijn's post violated Landmark's patents (though Briggs had only seen the code fragments) He requested that van Rijn not "ship, deploy or post the code presented in your post. Landmark also requests that in the future you do not ship, deploy or post any portions or versions of this code in its current state or in any modified state."

This is a pretty far-reaching request, and the reference to patent infringement gives it the whiff of a threat. After all, Briggs hasn't demonstrated that van Rijn violates his patents, and what's more, this request would preclude van Rijn from rewriting the code so as not to infringe those patents.

But it gets worse. Van Rijn asked Briggs to tell him which EU patents his code is alleged to violate. Briggs replied with some US patent numbers. When van Rijn pointed out that he wasn't in the US, Briggs claimed that because someone in the US might read and run his code, it "may contribute to someone infringing our patents in any part of the world."

In closing, Briggs says, "we would like you to refrain from releasing the code at all and to remove the blogpost explaining the algorithm."

Briggs appears to be saying that his US patents grant him the right to prevent van Rijn from discussing its subject matter -- and that they also constitutes a ban on publishing code that may violate them, even in regions where the patent hasn't been granted, even in regions (such as the EU), where software itself isn't patentable.

I don't know whether van Rijn's code violates the Landmark patents, or whether Landmark's patent claims are valid, or whether Landmark holds EU patents as well (it's not clear from Briggs's letters whether any of these things are true). But one thing I'm dead certain of is that it is not illegal to discuss a patent's technical workings. The entire point of the patent system is to give a monopoly to an inventor in exchange for full disclosure of the invention so that other inventors may study and learn from it. In other words, the patent system exists to encourage discussion of patented inventions, not to censor them.

Despite this, van Rijn's lawyer has advised him to censor his blog posts, or face the possibility of becoming a professional litigant who spends the next several years expensively defending his rights in various courts.

I couldn't reach Mr Briggs for comment.

Free Software Coder Bullied over *Algorithm* (Thanks, DeathBoy!)

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  1. This is like saying that we can’t discuss how a certain machine works, because someone owns a patent on it; a documentary on the history of aviation isn’t precluded from discussing how a Rolls Royce jet engine works simply because Rolls Royce has a patent. In other words, describing how the code works is not the same as the code itself.

  2. Not to mention that it’s generally been considered in this context that the source code itself is a “discussion” among experts. Discussing code = code.

    This kind of thing needs to be smacked down.

  3. None of that is even the worst part.

    Patents are public. This is intentional. Patents don’t block a particular outcome from being implemented, they protect a particular implementation. Since you might accidentally implement the same implementation if you didn’t know what the patent covered, patents must be visible so that they can be discussed and understood; if you don’t understand the patent, you can’t keep from violating it!

    The upshot is this guy is trying to use his public patent from being discussed in public. Put the crack pipe down.

  4. This kind of pseudo-legal bullying is increasingly common. We need to have more serious penalties for this misuse of the law, and cheaper and easier mechanisms for fighting it, because it’s warping the rights environment completely out of shape.

    In the meantime, I’ll add Darren Briggs, Landmark Digital Services, and Shazam to my permanent sh*t list. Like all the commoners and little people, I have a vested interest in the rule of law. I believe it’s valid to view this institutional misuse of the law as an attack on me, my rights, and my interests. Of course, it’s primarily an attack on van Rijn; but when blatantly fraudulent maneuvers like this go unchecked, all our rights suffer.

    1. “I believe it’s valid to view this institutional misuse of the law as an attack on me, my rights, and my interests.”

      There are so many situations these days to which this statement is applicable. Sad, really. At least in this case it’s just some random patent troll & not, say, the Canadian Heritage Minister who is now apparently responsible for bulldozing public opposition to the RIAA’s copyright “modernization” push.

    2. “Like all the commoners and little people, I have a vested interest in the rule of law.”

      /bow

  5. I’m going to second corey on this one. Rather land land deeds they are public documents. They are, as a matter of public policy freely available. Anybody can freely download* US, European, Japanese and I don’t know who else’s patents from the websites of the respective patent authorities. The very idea that you are somehow prohibited from discussing them is a bizzare misunderstanding of the very nature of patent laws.

    *There ARE some format issues with the TIFF compression that patent offices use as a standard. And QuickTime’s insistence that “I can read that!” can make the images difficult to print.

  6. I’m the Dutch lawyer who advised Van Rijn, but I did not suggest that he should “censor his post”. I only advised him not to distribute the software unless he was prepared to face a high-cost patent lawsuit.

    We have this nice little IP enforcement system in Europe where a rights holder can get an injunction from a court without the alleged infringer even being heard. Basically a bailiff shows up and orders you to take down the item that the rightsholder said infringes. You then have 14 days to fight the order in court but you must keep the material down during that time. (If you don’t, you are in the Dutch equivalent of contempt of court.)

    1. So EU courts enforce US patent claims?

      Instead, I would expect one of two things to happen:

      Nothing, because this claim is out-and-out wrong.

      Or Landmark’s lawyers would sue him ex-partie in Marshall, Texas where all their kept judges are. The first he’d hear about it would be some bullshit million-US-dollar invoice.

      Americans don’t believe in other countries or their legal systems.

  7. This is very basic engineering. Not even particularly advanced or requiring higher maths other than a Fourier Transform.

    Discuss as much as you like, there is no danger here. The patent holder has no leg to stand on, trying to stifle discussion about a relatively trivial implementations of quite a trivial algorithm.

    The algorithm may be powerful (and have good commercial applciability), but it is effin’ trivial. It was a weekend projekt after all!

    The blog posting has some source code, but it doesn’t provide compiled binaries and it doesn’t provide any “product” (commercial or noncommercial). Large video projects like x264 and ffmpeg avoid providing binaries mainly for the reason of patent liability. Shipping plain source code is definitely fine, or the project would have been taken offline by now (so this has definitely been tested for the last couple of years)

  8. You’re right: patents are by definition public. Darren Briggs has to know that his assertions are unsustainable. He’s intentionally misusing the law for purposes of intimidation.

  9. I implemented something very similar for my final year project at university.

    Unfortunately, I was ill and didn’t complete the write-up. I’m not sure what they’d have done if the code had been ‘published’ on the website of one of Europe’s best-known universities. Ignore it, probably, since the university has more money and better lawyers.

  10. Something Briggs and other must always remember: Your lawyer gets paid whether the litigation he’s advising is successful or not. Or has any real legal grounds or not.

  11. So… Briggs has made his request. Doesn’t appear as though he’s made anything other some fairly pointed requests wrapped in some vaguely threatening tripe.

    I, in turn, have sent an email to Briggs requesting that he blow me, inferring that refusal to do so would put him in violation of the Geneva conventions.

  12. It’s probably worth noting that, at least for me, the Shazam-related Twitter feed displayed at Shazam.com is currently disabled. I suspect this isn’t turning out the way they expected.

  13. The US patents quoted are numbered:
    US7346512
    US7627477

    These have the following granted European equivalents, in good standing in the Netherlands:
    EP1307833
    EP1504445

  14. I am the author of pHash (www.phash.org), another open source perceptual hashing library that detects similar media files (audio, video, images, and text). We do not use Shazam’s algorithm, which is not all that great to begin with. Furthermore, there is so much prior art in this area that were a patent infringement suit to be brought, the end result is likely to be that their patents are invalidated, or at least most of their claims would be.

  15. Darren Briggs, the internet now hates you. Good work defending a patent on a product which is ineffective anyway. Shazam works about 10% of the time…. why would you make a junky product, and then stop others from making a better version?

    Has anyone got copies of his blog posts? I think we need a 4chan style troll of Briggs which involves duplicating the blog posts everywhere.

  16. Didn’t itunes do this 10 years ago? I seem to remember my mis-identified music having corrected file names and id tags after being sorted by itunes.

  17. Some useful links:
    http://www.shazam.com/music/web/pages/team.html
    http://www.shazam.com/music/web/contactus.html

    I’m from India and sent the following message.
    (Copy-paste – but change the country to your own.)
    ———————
    Hello,

    On behalf of the larger internet music community, your CTO is hereby notified to Cease and Desist from sending Cease and Desist letters to people in other countries trying to do good things.

    Your CxOs’ desire to single-handedly control the way music is sampled, reeks of a colonial, imperialist mentality which is completely obsolete and totally incompatible with the internet.

    Your CTO’s emails asking Ron Van Rijn to not release source code are ridiculous at best and disgusting and unconstitutional, anti-freedom-of-speech at worst.

    Please issue a public apology to Ron Van Rijn for harassing a good man, or else, face permanent tough love on the Internet and consequently permanently offline.

    There’s no telling when and where someone on the road will stop and call you names in public.

    If you want to make money, the Internet will give you a 100 new ways every year.

    If you want to make money by threatening innocent people and stifling creative philanthropy, the bad reputation you will earn will remain forever and you will not be trusted by anyone again.

    Your CxOs have invited a Public Relations nightmare upon themselves.

    I hope they have the wisdom to apologise. Here, in Asia, your Intellectual Poverty laws are irrelevant, our Govt is very much sensible, and we continue to not provide a large amount of your revenues despite being populous consumers of all kinds of western music.

    Stop being idiots.
    Start being techies.

    Sincerely,
    Asian internet music lovers.

  18. I’m not sure I see the angst here. It was a request.

    It wasn’t a demand. Just a request. It wasn’t even an overly pointed request.

    If he is giving away a product (eg: code snippets) that violate a patent why shouldn’t the patent holder ask him to stop?

    Yes – this case is inane because the patent is probably nonsense – just prior art.

    But in general what is the problem?

    I also can’t quite see why people think algorithms shouldn’t be patentable. In fact, the first recorded patent (AFAIK) was for an algorithm.

    (Google ‘John of Utynam’ – it was for his algorithm for making coloured glass. And yes – a method of manufacture is, by definition, an algorithm)

    So why should a computer or maths based algorithm be unpatentable when clearly a ‘manufacturing method’ algorithm isn’t ?

    Either all should be patentable or none.

  19. Somebody needs to start a database website for all patent and copyright assholes. This can be used as reference for anyone to check whether a company’s product should be bought or avoided.

    1. Nice idea. Then make an Android app so people can check it instore. Preferably just using a pic of a product barcode to do the lookup.

  20. Also removing Shazam from my phone. And drafting a nasty letter to them. This kind of harassment is unacceptable.

  21. Email I sent to Mr. Griggs,

    Dear Darren P. Griggs,

    It is my opnion that you have sullied the reputation of the USA, Shazam, Landmark Digital Services, LLC and IBM, Inc. through your attempt to intimidate a Dutch national and fellow developer, Mr. van Rijn.

    Patents were originally constituted to “promote the useful arts and sciences”. Is that what you think your doing here? Does your patent disclose the information about the technology it covers? Even though Mr. van Rijn didn’t know this at the time, isn’t that exactly what he is doing on his blog and, if he publishes it, isn’t source code the best way to discribe these concepts?

    So isn’t he doing exactly what you did when you applied for and were granted the two patents in question? In fact isn’t that exactly what the patent system is intended to do? And aren’t you threatening him for doing exactly what the patent system was intended to do? Instead it is clear that patents, as currently practiced, are stifling innovation. This is especially true of software patents.

    Or are you saying that he, and everyone in the world, are not allowed to even discuss these ideas? Are you trying to suppress the free exchange of ideas? Isn’t that what you’re trying to do?

    I think that’s exactly what you’re trying to do.

    Have you heard of “the Streisand effect”? (Look it up.) Well, now you’ve brought world attention to the algorithms used by Shazam exposing how simple they are. Is that what you wanted? How it’s virtually child’s play to implement them?

    My only recourse is to boycot Shazam and any products of Landmark Digital Services, LLC. One guy; not much impact. Perhaps others will join me.

    Cool regards,

    Rob:-]

    Shaver Associates
    http://shaverassociates.net/

  22. Has the developer considered putting the material up on a google or other large hosting site? Perhaps even do a short video and put it on youtube. Explain the foolishness of the cease and desist. Encourage others to copy the material and host elsewhere. It’s illegal in the US to deny speech, and in the US, the patent doesn’t apply to pure software, nor if it is an abstraction, nor if it doesn’t promote the progress of science or useful arts (this last is partially covered by the abstraction test).

    Also, can people put up information about the patent troll and who is paying them for a patent license?

    And who would be the government agency where we can report the abuse?

    Maybe we should start a group of those that have had irresponsible cease and desists sent to them and see if we can get media or government attention about software patent abuse.

    Also, someone recently in France (sande3d?) had a strange ceases and desist sent (based on trademark but mentioning patents as well). The developer posted on a blog and also replied to the company with the c&d explaining his position. The company supposedly never replied after that.

    Jose_X

  23. > If he is giving away a product (eg: code
    > snippets) that violate a patent why shouldn’t
    > the patent holder ask him to stop?

    Publishing source code is generally regarded as speech.

    Generally this rule holds true:

    Freedom of speech > patents

    Posting ready-to-run binaries is a different thing.

  24. >> Posting ready-to-run binaries is a different thing.

    What that company is doing in shutting down the spread of education certainly does not promote the progress of science or useful arts, so I don’t see what power the US Congress would have to create a vehicle to support that company’s hostile and stifling actions. And this is not even considering how many people were able to derive the broad ideas described in the patent without the help of the patent, much as the patent author did so without the help of that patent.

    As for free speech. Speech, communication, and expression go beyond words. The work and expression includes the full compiled binary running on a programmable machine. And this mathematics, mapped automatically into instructions for the “calculator” or “robot” (aka programmable device), is likely but a small part of a greater creation intended and able to achieve its effect only when run on the computer.

    In fact, patent law was not intended to limit the creations from individuals nor to stifle collaboration or criminalize independent creation. [Never mind that the contents of the patent, despite not being “obvious” to many, are nevertheless obvious or not very complex at all to many whose speech is also protected by the First Amendment.]

    We can and should call into question the constitutionality of all patents, but, in the field of software, it’s difficult to question the damage they do whenever enforced against so many creators (inventors, innovators, authors, etc).

    Hostile patent owners (and Congress) should take a clue from the fact the “billion” dollar manufacturing plant, research laboratory, and distribution channel against which the patent author perhaps wants to recoup “extreme” costs are actually, for software, spectacularly inexpensive in comparison, even having a unit product (marginal) cost in time, energy, and money near zero. The “superplant” is affordable by almost any individual, many owning more than one (and frequently over a handful in various shapes and sizes).

    They should also recognize that the patent system has a very real bias in favor of those that have lots of money (and/or employees) and who prefer to stop their work prematurely in order to capture the broadest ideas quickest to win the long monopolies. It’s quite an injustice to pit the giant corporations and wealthy against most individuals in terms of accessibility to patent protection of one’s good ideas. The extremely low cost of participation in software development has indeed put many individuals against the traditional patenting outfits and has even allowed, unjustly, those taking out the many patents to leverage all the ideas and detailed works of the smaller firms and individuals who aren’t afforded patent-style protection, not just initially for inspiration (or copy), but countless of times in the back and forth that sometimes goes on between them and the USPTO.

    These groups should take a clue from renown scientists, mathematicians, and artists that patent monopolies would hurt progress by having prevented most of the highest quality and influential works in existence from having come about had patents been enforced in those areas, in those localities, and/or at those times in the past — and this remains true even if we were to tomorrow raise the bar for patent awarding to be much higher than where it is at today at merely “non-obvious”!

    To drive even further the point that software really is different from traditional patented “inventions”, a computer is a glorified calculator or like the “brain” of a robot. Those that design solutions for it, cumulatively, are part mathematicians and part fiction writers. Each half of this representative being carries out his (her) work in the mind (or with other humans) from beginning to end. All is based on idealized mathematical behavior that is perfectly cloned later within the computer [entirely independent of mother nature — thanks to the abstractions made possible through digitalization] in order to address the target human audience. All software “realities” are virtualizations — fiction — which a “robot” helps color more vividly than perhaps can a book with words and pictures.

    Congress does not have the right to stifle progress or curtail speech. In fact, they are to work to improve the welfare of the majority, not of a select group of “monopolists” to the detriment of the majority:

    “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    I hope we are kept updated to all the legal back and forth in as much detail as possible (maybe through a wiki or other device to allow significant work to be done by volunteers). Perhaps if suit is filed in the US, volunteers in the US will be able to help embarrass the patent owner and help make clear the foolishness of software patents.

    Jose_X

  25. Ever notice how it’s the guys with inferiority complexes who shout the loudest? I can see why Briggs is so worried about his app. It sucks. Oh, sure, given 20 seconds of play from a loud, clear audio system, Shazam can recognize the originals of most pop tunes. Most of the time. Other than that, it sucks. I dumped Shazam from my iPhone a year ago when I discovered SoundHound.

    SoundHound is ten times the app Shazam purports to be. SoundHound rarely misses a tune, even lesser known works or covers. Hell, it can recognize a tune from five seconds of me humming it off key. Shazam was an interesting toy when it first came out, but SoundHound kicks its ass thrice around the walls of Troy.

    So keep your rusty old algorithms, Briggs. And Roy, if you want a model of a sound fingerprint tool to emulate, try SoundHound. With any luck, their developers AREN’T assholes.

    Typed at midnight on my iPhone, so, yeah, there are probably typos.

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