Citizen Engineer
Patently Hacking
by ladyada@alum.mit.edu and fi ll@2600.com
We're a couple of hackers who happen to run an open-source hardware company that makes educational electronics.
We live and work at the intersection of law, code, and hardware. We've been trolled by patent trolls, threatened by inventors, subpoenaed by the U.S. federal government, and served cease-and-desists for hardware we didn't even make.
It would be careless not to keep an eye on the ever-changing legal decisions that affect citizens. It would be equally careless to not keep an eye on the technology that affects hardware and software engineering. The lines are blurred. We believe in "citizen engineering" to survive and educate others.
Two recent Supreme Court decisions and an expiring patent are of interest to us.
In the first, on May 22nd, the Supreme Court of the United States decided on the case TC Heartland LLC v. Kraft Foods Group Brands LLC.
They ruled that patent lawsuits can't be filed in the Eastern District of Texas at the pleasure of the plaintiff. Instead, they will need to file the lawsuits where the alleged violating companies "[have] committed acts of infringement and [have] a regular and established place of business."
So in other words, if you're a company doing business in New York City, patent trolls (they're formally called non-practicing entities) will need to file their suit against you there. Most "maker" companies are not located in the Eastern District of Texas so, while it will not stop the harassing patent suits from the trolls, the affected companies (plus their expertise and resources) are on home turf from now on.
We'll see more cases in Delaware, a popular state for incorporating, that's for sure! But, for now, shopping a case around to patent-friendly venues to try and tip the case in the plaintiff's favor is no longer a strategy.
Another recent SCOTUS decision relevant to any hacker or tinkerer, as well as people who repair things, came only a week later. On May 30th, the Supreme Court decided on the case Impression Products, Inc. v. Lexmark International, Inc.
The case involved a toner-cartridge-refilling company (Impression) legitimately buying empty Lexmark cartridges abroad, then refilling them with ink and reselling them in the United States. Lexmark argued that the cartridges were patented and users agreed to a "terms of use" on the packaging saying they could not resell them. The Court strongly disagreed.
In their view, if you legitimately buy something from a company, the patent rights they hold are exhausted and you are free to resell, tinker, hack, mod, all without fear of patent infringement. This is true even if you bought it in another country (where maybe they don't have a patent), despite it not being ideal for the business model of the company that sold you something.
One of the judges used this example:
"Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale."
This is a big deal for anyone who hacks, tweaks, or mods off-the-shelf hardware.
Now, maker and hacker freedom means you can buy or import hardware, you can hack and mod it for your needs and desires, and you are not required to license any patents rights from the original object. Note that this is just for the original patents. Your hacking may violate other patents, and you'll still have to contend with other IP rights like trademarks and copyrights. There are still a lot of issues and constraints with the DMCA, but this is a good start: the Court recognizes that we must be "free to repair and resell."
And last up: for two decades, if you played (decoded) MP3s on a device, you needed to buy a licensed chip or pay mp3licensing.com (the site now forwards to www.iis.fraunhofer.de/en/ff/amm/prod/audiocodec/audiocodecs/mp3.html).
Normally, you, the user, wouldn't actually pay the licensing fee, which was about $0.75 per device. Instead, it would be paid for by the manufacturer and then the cost would be passed on to you. You can see the archived licensing schedule at: archive.is/9d1pY
The patent collection was owned by Technicolor - yeah, that same Technicolor - and you can check out the claimed patents at: archive.is/Gewpa
Seventy-five cents may not sound like a lot, but with millions of devices, it added up fast. It also constrained software and hardware freedom.
So coders around the world came up with free alternatives like Ogg Vorbis.
But MP3 was, and is still, an incredibly popular format. As of a few weeks ago, all of the essential Fraunhofer/Technicolor patents have expired and the MP3 licensing program has ended: www.audioblog.iis.fraunhofer.com/mp3-software-patents-licenses
"The licensing program coming to an end is due to the fact that the last patent included in the program expired."
What does that mean for you?
Well, first up, you'll see a lot more MP3 decoding technology in hardware you will purchase.
If you are a hardware engineer, you can include an MP3 decoding core without paying licensing fees (check out opencores.org for free and open-source VHDL MP3 codecs).
Given the latest speed and power enhancements in low-cost microcontrollers, you can add MP3 decoding into your next product without an expensive co-processor.
Chips like the popular Tensilica-based ESP8266/ESP32 or Cortex M4-based Teensy 3 have just enough oomph to software-decode MP3.
We look forward to doing more music-based products and projects that play MP3s!