Filed last Friday, the latest version of the settlement is more limited in scope, but has still drawn the ire of critics, who claim it remains rife with “anti-trust, class action and copyright violations.”

Chin evidently disagrees, and Google (GOOG) is obviously quite pleased that he has done so. “The preliminary approval order sends a positive initial message; this agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form,” the company said in a statement.

“We remain hopeful that the agreement will receive final approval from the court,” Google continues, “and will realize the goal of significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the Web.”

In a statement of its own, the Open Books Alliance, one of the settlement’s harshest critics, warned Google not to get too, too hopeful. “Today, in an expected procedural move, Judge Denny Chin granted preliminary approval to the revised Settlement of Google’s copyright infringement lawsuit,” the group said.

“This is not a surprising development and is not any indication that the court will or will not accept the terms of Settlement 2.0,” the Alliance warned. “The same procedural preliminary approval was given to Settlement 1.0, and now sets up a court process that will allow those opposed to the revised settlement to let their objections known to the court. The U.S. Department of Justice has until February 4th to weigh in with the court, as their investigation into the matter continues.”

Analysts mulling over Nokia’s IP infringment suit against Apple seem to be of two minds about how the action will play out. There are those, like Neil Mawston at Strategy Analytics and Ben Wood at CCS Insight, who warn that Apple (AAPL) is on dangerous ground here at best. It’s almost impossible to build a cellphone without using Nokia’s (NOK) intellectual property, they claim. And if that’s the case with the iPhone, then Apple could end up paying Nokia hundreds of millions of dollars in licensing fees if Cupertino ends up on the losing side of this suit. (Click on text image below to see list of patents at issue.)

Some analysts, like Maynard Um of UBS, see Nokia’s action as a preemptory move against a possible infringement suit from Apple aimed at Nokia’s own multitouch handsets.

“We believe Nokia’s suit could be a pre-emptive move ahead of its new handsets launching soon that may have multi-touch capabilities for which Apple has IP,” Um wrote in a note to clients this morning. “We would not be surprised if Apple eventually files an infringement suit if Nokia’s handsets are deemed to infringe its IP and we believe Nokia would prefer any court action to be combined as prior cases have been. We expect the legal process to be drawn out & could involve US Patent Office reviews.”

The endgame here? Most likely an out-of-court settlement and cross-licensing agreements–assuming Apple’s willing. After all, Nokia is on record admitting its fondness for Apple’s technology.

Asked once about the striking similarities between a touchscreen device it was designing and Apple’s iconic handset, Anssi Vanjoki, Nokia’s head of multimedia devices replied, “If there is something good in the world then we copy with pride.”

Check out the video:

You see, DISH, though it had been barred from shipping DVRs with the patent-infringing functionality, continued to do so, justifying its behavior by claiming it had implemented a noninfringing workaround. But in June of this year, a court found that not to be the case. The court again reprimanded EchoStar (SATS) and ordered the company to pay TiVo (TIVO) $103 million in additional fines for the violations that occurred during the time in which the “workaround” was implemented. And now, it has added another $200 million to that.

TiVo, as one might imagine, was overjoyed by the ruling, which leaves open the possibility of further sanctions if EchoStar does not abide by the injunction.

“We are pleased by the Court’s ruling to impose contempt sanctions of approximately $200 million against EchoStar for its continued violation of a Court-ordered permanent injunction, and to award TiVo its attorney fees and costs incurred during the contempt proceedings,” the company said in a statement. “This brings total damages and sanctions in this case to approximately $400 million through July 1, 2009, plus attorney fees, and is exclusive of potential further damages and sanctions. Additionally, we are pleased that the Court ‘will seriously entertain the award of enhanced sanctions’ if ‘EchoStar is unsuccessful on appeal and nevertheless continues to disregard this Court’s orders.’”

Who knows, if DISH keeps it up, TiVo may get that $974.5 million yet.

TiVo’s (TIVO) complaint seeks both damages for past infringement and a permanent injunction–similar to the one it won against satellite provider Dish Network (DISH)–that would force AT&T (T) and Verizon (VZ) to shut down their DVR services.

“Attempts were made to reach a commercial arrangement,” TiVo CEO Tom Rogers said during an earnings call today. “They were not reached. We believe we are being caused irreparable harm and that harm increases everyday this doesn’t cease. We have found ourselves in a similar situation with AT&T and Verizon. We need to stop their continued unauthorized use of our intellectual property.”

And, God willing, corral them into that commercial arrangement to which Rogers refers. After all, the company lost 146,000 subscribers in its second quarter. It desperately needs to do something to win new ones and lower its churn.

[Image credit: Flickr/montevino]

“There is nothing in eBay’s systems and policies which favours or encourages the listing or sale of counterfeit goods,” the Court wrote. “On the contrary, eBay Europe take active steps to prevent or at least minimise such activities. The fact that eBay could take further steps does not affect this….The fact that it would be possible for eBay Europe to do more does not necessarily mean that it is legally obliged to do more, however.”

Another disappointment for L’Oréal, whose legal campaign against eBay (EBAY) has met with similar defeats in France and Belgium (cases in Germany and Spain are still pending). Though the cosmetics giant was able to take solace in the court’s suggestion that eBay could be a bit more proactive in its efforts to prevent the sale of counterfeit goods on its site.

The $200 million verdict is the second-largest patent jury award this year, the largest of all–coincidentally, I’m sure–being the $388 million verdict against Microsoft won by Singapore’s Uniloc in April over an infringement of its security technology. Then, as in the i4i case and most other patent rulings that haven’t gone its way, Redmond responded with incredulity, claiming it couldn’t have possibly infringed on the patent because the patent is invalid. “We believe the evidence clearly demonstrated that we do not infringe and that the i4i patent is invalid,” said David Bowermaster, a Microsoft spokesman, in the company’s now boilerplate statement on such matters. “We believe this award of damages is legally and factually unsupported, so we will ask the court to overturn the verdict.”

Sources briefed on the matter say DOJ attorneys have contacted Google (GOOG) as well as the Association of American Publishers and the Authors Guild about the antitrust implications of the agreement. Presumably at issue here are concerns over the settlement’s opt-out terms–authors and publishers who don’t opt out have effectively opted in–and the fate of orphan works, books still in copyright but whose copyright owners are unknown.

Orphan works number in the millions and the fear is that this settlement gives Google a powerful blanket license for them. As Pamela Samuelson, director of the Berkeley Center for Law & Technology, recently noted:

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Samuelson concludes that the Book Search agreement as written is essentially a major restructuring of the book industry and an anticompetitive one at that. If that is indeed the case–and Google maintains that it is not–it’s worrisome indeed. Certainly, it’s reason enough for the DOJ to give the agreement a good once-over.

At issue here are two Elan patents. The first–the company’s so called ’352 or “multi-finger” patent–describes a “multiple fingers contact sensing method for emulating mouse buttons and mouse operations on a touch sensor pad.” The second, or ’353 patent, describes a a “capacitive touchpad integrated with key and handwriting functions.”

“The ’352 patent is a fundamental patent to the detection of multiple fingers on a touchpad or touch-sensitive input device to enable the detection and use of a multi-finger gestures in various applications,” Elan claims in its suit. “Apple has been on notice of its infringement of the ’352 patent since early 2007 and has continued to utilize the ’352 patent invention without authorization. In addition, the Apple iPhone and iPod Touch also permit users to switch the capacitive touchscreen between keyboard and handwriting modes, and thus falls under the scope of the ’353 patent.”

Interesting claims. Especially since Elan issued a statement back in February dismissing the idea that there might be some overlap between its multi-finger patent and Apple’s 949 “multi-touch” patent. From that statement:

Some market experts have expressed that the issue of Apple’s multi-touch patent might adversely affect ELAN’s competitiveness in the multi-touch market in some way. ELAN … feels that the market has over estimated Apple’s 949 patent. The content of the 949 patent is quite broad and widespread as it might seem like an iPhone user’s manual. However, the final scope of claim granted is mainly based on an angle of initial movement of a finger contact with respect to the touch screen display to determined one or two dimensional command. Although the patent comprises of 20 items covering software, firmware, and memory storage, its scope is actually limited within the establishment of the one and two-dimensional commands mechanism. Simply speaking, it emphasizes more on one or two-dimensional commands finger gesture recognition rather than about multi-touch technology. Hence, to make things unmistakably clear, having a multi-touch feature can not be interpreted as an infringement of the 949 patent. 

As to the ongoing reports that Apple’s 949 patent will have an unfavorable blow to ELAN’s competitiveness, ELAN explains that there is actually no conflict between the multi-touch technologies used by ELAN and Apple. None of ELAN’s current customers are using or plan to adopt the patent claim in the future. Therefore, the approval of the 949 patent will have no adverse effect on ELAN’s expanding Multi-Finger™ market. As to the 949 patent’s market value, ELAN feels that the general consumers, as viewed by the major players in the handset industry, are not enthusiastic or feel the need of operating their mobile phones with the “one and two-dimensional” commands.

An odd thing to say two months before filing suit against the company with which you purportedly have no conflict, don’t you think? I wonder what changed…

This week members of the House Judiciary Committee passed the Prioritizing Resources and Organization for Intellectual Property (called “PRO IP” groan…) Act of 2007, legislation that would create an “anti-piracy czar” at the White House level, a separate IP-enforcement division at the Justice Department and ratchet up already high civil penalties for copyright infringement.

The measure is backed by many of the most powerful politicians on the House Judiciary Committee, including John Conyers (D., Mich.), Lamar Smith (R., Texas) and “Hollywood” Howard Berman (D., Calif.), the content cartel and, of course, Zucker, who likes to tell everyone that it dramatically advances the cause of protecting innovation, technological invention and creativity.

Said Zucker, “This is such an important step in combating this incredibly serious piracy and counterfeiting problem that’s getting worse, not better.”

In Zucker’s eyes, maybe. But not in the eyes of consumer folks like Google Senior Copyright Counsel William Patry who calls Pro IP “the most outrageously gluttonous IP bill ever introduced in the U.S.” and consumer advocacy group Public Knowledge which feels it is in sore need of adjustment.:

This bill takes already extraordinary copyright damages and increases them, expanding the threat of litigation intended to stifle competition and innovation. … Increasing penalties is one of the least necessary, and quite possibly counterproductive, actions the committee could take, particularly when current law is adequate to deal with most infringement issues and because the higher penalties serve only to force faster and larger settlements potentially from innovators. … Instead of following the course of this bill, the committee should look to the future, to a more realistic and rational copyright regime that can adapt pre-VCR copyright laws to a post-YouTube world.”

Yesterday, Seagate (STX) filed a lawsuit in federal court accusing STEC Inc. (STEC), an early SSD maker, of patent infringement. In the suit, Seagate argues that STEC’s solid-state drive products violate four Seagate patents covering the ways those products communicate with a computer. The company requested an injunction and unspecified damages, which it asks be tripled if STEC is found guilty of willful infringement.

“The public perception has been that solid-state will take over the world and run disk makers out of business, but you can’t bring that product to market without licensing disk-drive technology,” said Seagate CEO Bill Watkins. “STEC infringes on a number of Seagate’s patents which are important to the entire industry. We thought they would have to learn how to do storage differently to avoid our patents, but they decided to go ahead and violate them. … We have spent $7 billion over the last 10 years to optimize how our disks work. This is the first lawsuit brought by a hard-disk company against a solid-state company. We are protecting the entire industry.”

That’s an altruistic way of looking at litigation that Watkins suggested in an interview in March was designed to protect Seagate’s own turf. After all, a Seagate victory in the suit could pave the way for cross-licensing agreements, not just with STEC, but with other SSD makers as well.

Why would anyone agree to such a thing? For their personal enrichment, of course. “I don’t think you can estimate the educational benefit of these things. … A lot of this is basically letting people know that what they’re doing is not OK,” Sherman reasoned. “And for a lot of people that makes a difference in their behavior.”

A bit of stretch, even for Sherman, as Ars Technica aptly notes: “Filtering as a concept is ultimately doomed by encryption unless the ‘filters’ simply block entire protocols altogether, and talking about the consumer benefits of installing RIAA-approved filtering software is just another sign of how ludicrous the entire debate has become.”

The RIAA and its online counterpart, the Digital Media Association, have petitioned the Copyright Royalty Board to slash the so-called mechanical royalties paid to musicians and music publishers for digital downloads, subscription music services and ringtones. Seems the RIAA and DiMA feel they’ve suffered unfairly during the transition to digital distribution and they’d like artists to share in their misery.

The National Music Publishers’ Association, noting the favorable economies of digital distribution, asks for a royalty of 15 cents per track for permanent digital downloads. The RIAA argues that a royalty of approximately 5 cents to 5.5 cents per track is more reasonable. The DiMA–which represents Apple, Amazon and RealNetworks, among others–suggests cutting that royalty further still.

Find that astonishing? Just wait; it gets worse. For streaming music services, the NMPA proposes a rate of the greater of 12.5% of revenue, 27.5% of content costs, or a micro-penny calculation based on usage. The RIAA finds 0.58% of revenue more reasonable. And the DiMA says there really shouldn’t be any royalty at all. “Fundamentally, this fragile marketplace is showing signs of promise, but it cannot be saddled with additional, excessive costs,” the DiMA argues. “The board should be careful not to impose a royalty that kills the proverbial goose and deprives songwriters and publishers of their golden egg.”

An interesting choice of metaphor and one in which the DiMA and RIAA might easily figure as the giant at the top of the beanstalk:

Fee! Fie! Foe! Fum!??
I smell the blood of a musician.
Be he ‘live, or be he dead,
I’ll grind his bones to make my bread.”

Grind his bones to make my bread, indeed.

Said Rick Carnes, president of the Songwriters Guild of America: “Our opponents have to recognize that this rate-setting is not a matter of gamesmanship for songwriters, but rather one of survival. As I stated in my testimony, in response to a question from those seeking to cut the mechanical royalty rate in half and to denigrate the importance and contribution of professional songwriters to the music industry, ‘Yes, songs are plentiful, just as rocks are plentiful. But if you want diamonds, you are going to have to pay the miners a living wage.’ ”