Could The Supreme Court Invalidate Software Patents?

from the in-truth,-it-already-has... dept

Back when the Supreme Court ruled on the Bilski case, many people were upset that it so narrowly tailored the result, so that it didn’t include any real statement on the patentability of business methods or software. Reading the tea leaves, it wasn’t difficult to realize that Justice Scalia actually appeared to be the most skeptical of software patents. Tim Lee is now wondering if Scalia is the last best hope for invalidating software patents (and hopes that perhaps the recent This American Life episode on patent trolling will get people to realize how big a problem this is).

Some folks claimed in response that Lee was advocating “judicial activism,” and Scalia’s hands were tied by the law itself. However, as Lee correctly retorts, the law does not explicitly say software patents are okay. In fact, the Supreme Court has ruled against such patents in the past. It’s just that those rulings were a long time ago, and the lower courts (mainly CAFC) have chipped away at that over the past couple decades. Lee points out that in 1972, when the Supreme Court first rejected software patents in Gottschalk v. Benson, it invited Congress to change patent law if Congress intended for software to be patentable. Congress did nothing.

Thus, it seems entirely reasonable that the Supreme Court could point to its earlier rulings (and there are others beyond Benson), and say that software is not patentable — but that would likely entail greater awareness of why software patents are a massive problem. So… how do we get everyone on the Supreme Court to hear that TAL episode?

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Comments on “Could The Supreme Court Invalidate Software Patents?”

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"when the Supreme Court first rejected software patents..."

Er, from what you present here, then when were software patents ever valid? Case law?

By the way, I’m totally against software patents because they’re not physical products, only methods which any programmer is likely to arrive at given certain specs.

Re: Re: "when the Supreme Court first rejected software patents..."

Er, from what you present here, then when were software patents ever valid? Case law?

Under the Supreme Court, they may never have been valid. It was lower courts that tried to carve out cases in which they claimed such patents were valid, and the SC has never revisited the issue to rule one way or the other.


Re: Re: Re: Re: Re: Re: "when the Supreme Court first rejected software patents..."

Defining what you mean by a term is hardly “parsing”. It is critical before anyone can understand what you are trying to argue.

Importantly, this is something that applies with equal facility in areas far removed from matters of law.


Re: Re:

Abstract ideas, laws of nature, and natural
phenomena are the only “things” that have been held to be outside the ambit of 35 USC 101.

If Congress wanted to add more granularity and put specific subject matter outside the reach of Title 35, it is certainly free to do so (though it has steadfastly resisted the urge for over 200 years).

The courts, on the other hand, to not have such free rein. So, for all intents and purposes the question posed in the title to this article is little more a flight of “what if” fantasy.

I wonder...

I wonder if someone could patent breathing. Just write the patent out in such a complex way that the monkeys at the patent office don’t immediately recognize it for what it is and pass it.

Then, assuming the patent holder is a good guy (on the side of sanity and reason when it comes to patents and copyright), the patent holder could sue all patent lawyers and patent trolls for their indiscretions.

Make them pay a few or settle or stop breathing. I would make the settlement be an active invalidation of the current patent system entirely.


Re: Re: I wonder...

Breathing is a chemical process, I’m pretty sure you can’t patent those. But you certainly can slide through ridiculous patents

patent# 6080436

What innovative thing is this? Making Toast
Did you know we didn’t have toast or toasters before 1/27/2000 ?


Re: Re: Re: Re: I wonder...

If you read the claims, it requires the bread to be heated at 2500F – 4500F. Toasters operate at 450F.

The person who claimed that it was a patent on toasting (I suppose you heard it on that podcast) either 1) does not know how patent law works, or (2) deliberately mis-represented the patent to make the case that there are too many patents. Oh, look! Surprise, surprise, he has a company that “evaluates” patent risks for you!

Re: Re: Re: Stupid Inventions.

This is the sort of thing that seems to be happening in mechanical inventions. What impresses one about this patent is its combination of foolishness and stinginess. I thought for a second that I was reading Thomas Hardy’s The Mayor of Casterbridge, only the fictional Donald Farfrae was probably a rather more honest man than the patentee. The proposal is to try to reclaim spoiled bread in supermarkets and restaurants by zapping the surface in such a way as to dry out the surface layer only, without visibly toasting the bread. Bread, bought wholesale, is cheap. The customer’s goodwill is expensive. The game just isn’t worth the candle. The sensible thing is to arrange for daily deliveries of bread, and to chuck the stale bread into a bag and carry it to the ducks at the nearest park.

Parenthetically, the patent seems to confuse oven temperature with heating filament temperature. A conventional oven’s heating filaments, typically made of nichrome wire, are a lot hotter than 450 degrees F. I wasn’t able to dig out an exact figure, but 1000 degrees Kelvin (1340 deg F.) sounds more or less typical.

There used to be children’s toy ovens which ran on incandescent light bulbs, and which were used to make small cakes and similar confectionery. I think we had one about 1965. A light bulb’s tungsten filament (heating element) is quite a lot hotter than an oven heating element, say 2500-3000 degrees Kelvin (4000-5000 deg F.), but it is better shielded against fire. So a yellow-light bread-baking oven cannot be described as novel. What might be novel in the patent is using it to “refresh bread.”

Re: Re: Re:2 Stupid Inventions (clarification)

To clarify: My “Stupid Imventions,” #48, above, refers to “Re: I wonder…” #s 11, 13, 41, and to Patent No. 6,080,436

A sensible approach to the larger problem is to find an economic means of arranging dailly deliveries of fresh foodstuffs. For example, a small panel truck can be fitted with multiple compartments, ranging from a freezer to a warming oven, and supply everything from bread to salad in one visit.


What Congress said was...

Quoting Wikipedia:

Finding that Congress had intended patentable subject matter to “include anything under the sun that is made by man”

So “ the law does not explicitly say software patents are okay. ” argument is not going to fly unless you can somehow prove software is not something “made by man.”

Preemptively, if anyone thinks of saying “software is mathematics”: (1) the courts are very unlikely to buy that argument, and (2) the whole “mathematics is discovered” vs “mathematics is invented” debate is hardly resolved amongst mathematicians themselves.

abc gumsays:

Re: Re: What Congress said was...

“Finding that Congress had intended patentable subject matter to “include anything under the sun that is made by man””

Where does this appear in documentation which defines our present state of law?

Software is simply a series of instructions, similar to a recipe. One is not allowed a patent upon a recipe.


Re: Re: Re: Re: What Congress said was...

“Anything under the sun made by man” appears in The Patent Act of 1952.

Actually, recipes are patentable. Surprise!

And here is the USPTO classification for recipe patents:

It’s just that typically they don’t meet the novelty, non-obviousness and mainly utility requirements of patentability. (Un?)Fortunately, “it tastes good” is not a good enough reason for utility.

Further, so-called “software” patents are essentially patents on processes (or “methods”) which essentially cover a series of “steps or acts, for performing a function or accomplishing a result.” Ready for another surprise? Method patents don’t even need to involve technology:


Re: Re: What Congress said was...

Ah–Wikipedia! Great source for legal citations. However, mate, here’s something you might not know: that quote is cut from a larger one. Ready? Here it comes:

“Taken in context, it is apparent that the quoted language has a far less expansive meaning. The full sentence in the Committee Reports reads: “A person may have invented' a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of [this] title are fulfilled." S.Rep.1979, at 5; H.R. Rep. 1923, at 6. Viewed as a whole, it seems clear that this language does not purport to explain that "anything under the sun" is patentable. Indeed, the language may be understood to state the exact opposite: that "[a] person may haveinvented’ … anything under the sun,” but that thing “is not necessarily patentable under section 101.” Thus, even in the Chakrabarty opinion, which relied on this quote, we cautioned that the 1952 Reports did not “suggest that ? 101 has no limits or that it embraces every discovery.”

I know it took a while, but there: FTFY. I hope you had the good sense to read the whole thing, because this is such a common misconception that it threatens to eat the truth whole.


Re: Re: Re: Re: Re: Re: What Congress said was...

Yes, Bilski did say …
…we cautioned that the 1952 Reports did not “suggest that ? 101 has no limits or that it embraces every discovery.

… but what it explicitly did not say, despite many, many parties pushing for it, was what was not patentable. They did not rule on business method patents and software patents. All they effectively said was, “well, not everything under the sun is patentable, but we’re not going to tell you what is and what isn’t.”

They then went on to kill the few concrete tests (machine-or-transformation test, TSM) available to examiners that could be used to determine patentability and non-obviousness. In fact, in killing the machine-or-transformation test, they explicitly killed the one thing that could have killed business and software method patents.

So, by the current state of the law, business and software methods, and pretty much everything under the sun, is potentially patentable, but there is no way to tell what is and what isn’t.


Re: Re: Re:2 Re: Re: Re: Re: What Congress said was...

That’s one reading. The other is that, although there is no stated rule against method patents (including software) that don’t read on a machine-or-transformation, you have a far greater likelihood of having an app for one shot down than accepted. Like medical marijuana w/r/t trademarks–no rule against marks designating those as the goods/services, but you’ll never get that mark registered.

I’d go with this reading–it seems to be the one that’s active right now.


Re: Re: Re:2 Re: Re: Re: Re: What Congress said was...

Oh, DUDE: I just re-read what you wrote above. Bilski absolutely did NOT “kill” the machine-or-transformation test. It said that it was one of the most important clues to patentability, although not the sole indicator.

Don’t know how I missed that, but it just ain’t true.


Re: Re: Re:3 Re: Re: Re: Re: Re: What Congress said was...

For a patent attorney prosecuting a patent, “not the only test” is as good as no test at all if no other test is defined.

E.g. If an examiner responds to a patent with a machine-or-transormation test rejection, the attorney will simply respond with “that is not a sufficient condition to reject this claim. On what other grounds do you say that this claim does not pass the patentability criteria?” And now, without guidance from higher up, the examiner has no answer at all. He then must fall back to any novelty or obviousness objections he may have instead of a statutory subject matter rejection.

Examiners won’t even bother making this kind of rejection.


Re: Re: Re:4 Re: Re: Re: Re: Re: Re: What Congress said was...

Ok, I was exaggerating a bit there. Examiners certainly will issue 101 rejections based on MOT. Contrary to popular belief, examiners love to throw as many types of rejections at each claim as they can think of.

The real problem is that applicants will keep responding with arguments saying 1) it’s valid under MOT and ABC argument is how, and 2) MOT is not a sufficient test anyway, and 3) even if it fails MOT, DEF argument is how it is statutory. That is, applicants now have two more arguments to make to back their claims. I feel that this will only result in more appeals going up to the BPAI and beyond because examiners now lack the tool to issue a 101 with ultimate authority. This is not a scalable solution, and will do nothing o help the PTO backlog.


Re: Re: Re:5 Re: Re: Re: Re: Re: Re: Re: What Congress said was...

It just doesn’t work that way in practice. You’d think it would, too, but it doesn’t. What Bilski has done is, contrary to what you’re saying, enshrine the MOT test, rather than gut it. It’s just the way it’s gone since. All one need do is read post-Bilski caselaw. Not every case relies on the MOT test, but a lot of them do–and rest on an invention’s failure to satisfy it. It’s then a short jump to the invention being an “abstract idea,” and tacking on the Bilski disclaimer that “MOT is not the only test, but it is certainly instructive.” Trust me–read a bunch of those: that’s the way the cookie has crumbled.


So… how do we get everyone on the Supreme Court to hear that TAL episode?

Surround the Supreme Court building with loudspeakers blasting an mp3 of it for a few weeks?

Now, I know what you’re thinking: “AC, that won’t work. Need to get public performance rights from TAL’s owners – not happening.” Which is why I propose employing the hard of hearing to hold those loudspeakers: IP Law, meet the ADA …

It's Illegal Anyway

All software is an algorithm. This is a proven fact. The patent law clearly states that algorithms can not be patented. All software patents are illegal.

All business procedures are algorithms. A process is a method that produces items of wealth. Not money, not value, not reduced cost. Wealth. Otherwise, it’s an algorithm and is not patentable.


Re: Re: It's Illegal Anyway

All software is also “a series of steps or acts, for performing a function or accomplishing a result.” That is why they are claimed as method patents:

But algorithms are not patentable! Confusing? Yes, until you realize that patent law only considers algorithms un-patentable if they produce no practical results. Good luck proving that software produces no practical results.


Re: Re: Re: Re: It's Illegal Anyway

Citation, please, for “patent law only considers algorithms un-patentable if they produce no practical results.” I’m really anxious to see you pull one for me. Just one. I promise I’ll be satisfied with one–oh, sorry: one that’s still good law.



Re: Re: Re:2 Re: Re: Re: Re: It's Illegal Anyway

Sorry, don’t check in regularly. Here’s a link:

Specifically, for those in the US:

These quotes captures the essence:

In Gottschalk v. Benson (1972), the United States Supreme Court ruled that a patent for a process should not be allowed if it would “wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself”

That is, if the patent effectively claims nothing more than the mathematical formula itself, meaning if has no practical application other than performing that computation, it’s not statutory subject matter (i.e. it’s not patentable). “Insignificant post-solution activity,” such as simply displaying the result on a screen, also does not count (i.e. displaying the result is a non-abstract effect, but it is trivial and unless that number is used for something else, it has no useful practical result). The results of the computation must be used for a practical effect, e.g. using PageRank (matrix-based mathematics) to rank search results (practical application).

Here’s the relevant quote regarding that:

“A practical application of a computer-related invention is statutory subject matter. This requirement can be discerned from the variously phrased prohibitions against the patenting of abstract ideas, laws of nature or natural phenomena”

Note that my explanations are very, very simplified, and the actual decisions by the Supreme Court are really quite nuanced.

They still have not been able to articulate a clear method to test for patentability of tricky abstract-looking things like software, though. This link on the USPTO website itself also tries to explain briefly:


Re: Re: Re:3 Re: Re: Re: Re: Re: It's Illegal Anyway

I think that Bilski bolsters my position in its discussion of Gottschalk, too:

/I/ “Gottschalk v. Benson, 409 U.S. 63, 70, 93 S. Ct. 253, 34 L. Ed. 2d 273 (1972), noted that ?[t]ransformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.? At the same time, it explicitly declined to ?hold that no process patent could ever qualify if it did not meet [machine or transformation] requirements.? Id., at 71, 93 S. Ct. 253, 34 L. Ed. 2d 273. Flook took a similar approach, ?assum[ing] that a valid process patent may issue even if it does not meet [the machine-or-transformation [**803] test].? 437 U.S., at 588, n. 9, 98 S. Ct. 2522, 57 L. Ed. 2d 451.”

In other words, there’s no stated rule against method (in this case, read: software) patents that don’t satisfy the machine-or-transformation test, but that remains the best test there is. Note, too, the extreme prejudice since Bilski against apps and patents (depending on the stage of proceedings) that simply claim to read on a computer. On the other hand, yes, Prometheus v. Mayo allows a method of devising dosages of medicine…but it allows that by finding a transformation to the human body as a result.

I’m sticking to my story, but I do agree that it’s far from the end of this series.


Re: Re: Re:4 Re: Re: Re: Re: Re: Re: It's Illegal Anyway

The problem with software is defining what constitutes transformation… There have been cases where transformation of data was enough to qualify!

I read that article summarizing the post-Bilski statutory-related decisions from the BPAI and courts… The increased 101 rejections against software is certainly noticeable, but what I found shocking was the huge discrepancy and inconsistency in the reasoning behind statutory and non-statutory decisions. I just took a quick look at the representative claims, but somewhat abstract looking claims were trivially determined to be statutory, while others that seemed to have less abstract elements were deemed non-statutory under the MoT test. Sometimes simply the transformation of data or the presence of a network or a storage element was sufficient to qualify. And others that appeared somewhat concrete were deemed too abstract.

When those who got rejected see the claims that were allowed and the reasoning provided, you can bet they will appeal and appeal again. All the way to the top, if needed, since some applicants are tech giants like HP. It’s a very arbitrary system right now, and nobody will like that until the uncertainty is resolved. Like I said above, all these appeals will only increase the load on the PTO and the courts.


Re: Re: Re:3 Re: Re: Re: Re: Re: It's Illegal Anyway

Hey dude: just to make clear that I’m way more interested in a good debate and topic-expanding discussion (rather than flaming and responding–which so far we seem to have avoided!), I wanted to tip you to this piece:—post-bilski-ordering.pdf. Really interesting regarding possible cost-saving approaches for validity determination going forward, post-Bilski.


Re: Re: Re:4 Re: Re: Re: Re: Re: Re: It's Illegal Anyway

I completely agree. While I think the patent system overall has great value, there certainly is a lot of room for improvement and reasoned debate. The flamewars we usually see online on these topics really contribute little of value. This is indeed a refreshing change.

Thanks for that link. Reading it now… Looks very interesting.

Gene Cavanaughsays:

Software patents and the Supreme Court

GREAT article and idea! Of course, even though I am an IP attorney, I refuse to do “defensive” or software patents. I have come to the conclusion that while there have been isolated cases in the past where defensive patents made a little sense, the problems FAR outweigh any benefit.
When I am asked to do software, business, or defensive patents, I offer to help them find an attorney that will help them – I won’t.
It costs me a lot of money, but I sleep well at night.

Ripeness For Judgment.

The Supreme Court’s line in Bilski was that the larger issues were not “Ripe For Judgment.”

In America, we have an Adversarial System of Justice. An American judge, unlike, say, a French Juge d’ Instruction, is not expected to aggressively investigate a case. His job is merely to act as referee between the competing lawyers. The Supreme Court’s desire is to restore adversarial function to the courts and tribunals beneath it, so that the cases which make their way up the ladder will not be frivolous. As the Supremes see it, the big problem with the patent process is that it is an Ex Parte proceeding, in which one set of parties are not represented. So their response to Microsoft was in effect that Microsoft ought to have been continuously scanning patent applications and issued patents as soon as they were made public, and filing Requests For Reexamination as issues arose, and that Microsoft could not raise hypotheticals at trial about what the Patent Office might or might not have done with a particular piece of evidence.

The Supreme Court’s position is that they handed over a wonderful tool, in the form of KSR v. Teleflex, and people aren’t using it enthusiastically enough. The Supreme Court wants Google to file Requests For Reexamination against at least ten thousand patents, and preferably a hundred thousand. The Supreme Court hopes that other companies will retaliate by filing Requests For Reexamination against Google’s patents, and that a Request-For-Reexamination Nuclear War will ensue. It does seem that a patent examiner can recognize prior art or certain types of immediate obviousness when someone points them out to him, and explains how they fit into the scheme of things. This should greatly reduce the number of active patents. Ninety percent of patent-holders, on hearing that their patents have been challenged by Google, will chose not to reply, and that will be the end of the matter. If Google wants protection against bad patents and patent trolls, it must secure protection for the general public as well. When patent-holders appeal the cancellation of their patents, the cases will go to the Board of Patent Appeals and Interferences, and so to the Court of Appeals for the Federal Circuit. If the plaintiff doesn’t have a patent anymore, the East Texas court cannot get into the act. Companies like Google and Microsoft want to wait until someone sues them and defend only themselves, without any benefit to the general public. Instead, they will be forced to defend the general public as well.

Another element of Ripeness For Judgment is simply time. If matters can be delayed for two or five years, some patents will expire. In the case of Open Source Software, the established and published code-base will become older, and more stable, and will tend to become its own prior art against subsequent patents. An increasing number of parties are ceasing to use minor forms of proprietary software. Only the biggest firms, such as Microsoft, can even approximately keep up with Open Source. Everyone else shifts to a business model of adding value to Open Source by maintenance, consulting, etc. The software business landscape is simplifying itself. The kind of case I can imagine arising would involve Summary Judgment for Failure to State Claim, when a SCO-like plaintiff tries to avoid specifying which lines of which files of which releases of an Open Source distribution allegedly infringe his patent, because he knows quite well that the relevant code is twenty years old. I can envision that a defendant might appeal the failure of the East Texas Court to grant summary judgment under these conditions.


What I find funny about all of this is that, after Bilski, there is really nothing on the horizon for the SC to look at, at least from what I can gather. There are some cases wandering around lower circuits, but none of them appear to have the “guts” to make it to the SC.

Further, it is doubtful that without a change in the law, that the SC would change their tune very much. There isn’t anything compelling out there that suggests that the law doesn’t cover software. Some of us may not like it, but it is pretty hard to say otherwise in any legal sense.

So my question is what is the point of the story? The SC isn’t considering anything at this point, and while it is nice to look at what might have been, Bilski is over and nothing else appears to be big enough to take center stage, so it’s sort of speculation for the fun of speculation. There is nothing to suggest the SC will overturn software patents any time soon, is there?



“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Does the invention “promote the Progress of Science” and is it “useful”? If so, stop torturing yourself and the rest of us and give us some peace.


Software patents remain unpopular. But instead of advocating for getting rid of software patents altogether, perhaps concerned parties should begin discussions on how to create a software patent that works for developers. For instance, instead of the usual costly, 20-year patent, maybe it’s time for an inexpensive, limited, 5-year software patent that reflects software’s low overhead and rapid obsolescence? Some other countries offer multi-tiered patent systems; I think it’s time the U.S. started discussions in that area.

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