Video and audio transmitted over the Internet is set to go to trial following another successful patent challenge in the US courts.
Last week, a judge in the Pennsylvania and Pittsburgh district court ruled that SightSound was allowed to go ahead with its case against two subsidiaries of media giant Bertelsmann, CDNow and N2K.
The decision saw Bertelsmann's argument that SightSound's patent claims had been incorrectly filed thrown out and follows a similar decision against the company in February 2002 when it had argued that the patent did not refer to the Internet. The original case was brought against Bertelsmann in 1998.
The case will now go to jury trial where any decision would have enormous implications for the whole online media industry. If SightSound wins, it will essentially have a stranglehold over any company that decides to make any images or sound available over the Internet. The company however prefers to think of its role as giving it "a unique opportunity to protect the commercial value of downloadable movies and music".
So just how do you get to control the transmission of sound and pictures over an entire medium? Easy - you just work with the US’ improbably open patent system. Thanks to one man - Bruce Lehman - the US decided in the early 1990s (without Congressional review) to make business methods and software patentable.
To any close follower of logic, this would appear to be an accident waiting to happen. It is. Following the time it takes to get a patent approved and then the obligatory five-year delay going through the US legal system, this year has seen the arrival of several big patent cases. Everything is still in the balance, although Lehman's faulty reasoning is already attracting some powerful detractors.
Last month, the Federal Trade Commission put out a report arguing that patents should be harder to obtain and easier to challenge. At the same time, Tim Berners-Lee and the W3C starting fighting against another patent that risks wiping out large sections of the Net.
While the concept of owning audio and video sent over a telephone line and then - gosh - charging for it with, er, a credit card, may seem quite insane, that is nevertheless what Arthur Hair has. He was co-founder of SightSound and is its chairman and CTO.
The company says Mr Hair has 11 patents. We’ve only found five in the US and they all seem to pretty much cover the same thing. The first, and most significant in this case - 5,191,573: Method for transmitting a desired digital video or audio signal.
What is this method? It is "a method for transmitting a desired digital video or audio signal stored on a first memory of a first party to a second memory of a second party." Okay. What else? "The method comprises the steps of transferring money via a telecommunications line to the first party from the second party. Additionally, the method comprises the step of then connecting electronically via a telecommunications line the first memory with the second memory such that the desired signal can pass there between."
There's more: "Next, there is the step of transmitting the desired digital signal from the first memory with a transmitter in control and in possession of the first party to a receiver having the second memory at a location determined by the second party. The receiver is in possession and in control of the second party. There is also the step of then storing the digital signal in the second memory."
You presumably would then expect a huge ream of technical information, coding, platform independent work-arounds, detailed telecommunication material. Nope, none of it. Just this great idea that it would be cool to send video and audio over a telecommunications line. And that you'd probably have to store a copy of it on someone else's machine. And that's all you need.
Then there's 5,675,734: System for transmitting desired digital video or audio signals. And 5,966,440: System and method for transmitting desired digital video or digital audio signals. And more recent additions. 6,014,491: Method and system for manipulation of audio or video signals; 6,615,349: System and method for manipulating a computer file and/or program.
You may want to look at that last one again. "System and method for manipulating a computer file and/or program." This was approved in September this year - just two months ago - and is described as: "A serving device having access to a computer file and/or program which is unencrypted and which can encrypt the unencrypted computer file and/or program to become an encrypted computer file and/or program and transfer it." What?! How on earth can you patent the very concept of encrypting a computer file?
Not that you can blame Mr Hair or SightSound for going for these patents and those seeking to apply them. If you pull it off, you control a vast, multi-billion-pound industry in one fell swoop. And you can't blame the judge because, under the law, the patents are applicable.
But surely commonsense has to reassert itself sometime soon. The pro-patent arguments in the case of business methods and software are looking increasingly unsustainable as each day goes by and the reality of the situation draws in. At some point a company will fight back against this patent madness rather than settle out of court and then we'll have a precedent.
We could all save ourselves a lot of trouble in future years if that precedent comes down against such generic, woolly and unjustifiable patents. ®