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BayStar & Acacia, and A Ruling on Digital Evidence, & Today's YouTube: Xerox's Alto
Sunday, October 21 2007 @ 12:14 PM EDT

Guess who has Acacia Research, the parent of IP Innovation, now suing Red Hat and Novell over alleged patent infringement, in their portfolio, or at least demonstrably did in 2006? Baystar [PDF]. What a small world. Who'd think that the very same Baystar, whose Lawrence Goldfarb told the court in the SCO v. IBM litigation that it was Microsoft that induced it to invest in SCO would also be an investor in the company now attacking Red Hat and Novell? Here's Acacia Research's most recent 10K, by the way, in case you'd like to learn all about its patents and infringement lawsuits. It mentions something about competition in the patent troll business:
The Acacia Technologies group expects to encounter competition in the area of patent acquisition and enforcement as the number of companies entering this market is increasing. This includes competitors seeking to acquire the same or similar patents and technologies that we may seek to acquire. Companies such as British Technology Group, Rembrandt Management Group, and Intellectual Ventures LLC are already in the business of acquiring the rights to patents for the purpose of enforcement, and we expect more companies to enter the market. As new technological advances occur, many of our patented technologies may become obsolete before they are completely monetized. If we are unable to replace obsolete technologies with more technologically advanced patented technologies, then this obsolescence could have a negative effect on our ability to generate future revenues.

Sounds good to me, to just out-innovate their patents and leave them in the dust. BayStar lists what seems to be the biotechnology part of Acacia, but as the 10K explains, it's all one in the end. You know Intellectual Ventures, of course, two of whose founders came from Microsoft. Microsoft denied the Goldfarb claim, as it also denies being behind the IP Innovation/Acacia litigation, which IP Innovation confirms. Yet another remarkable coincidence, then.

I can't resist sharing with you what I just found on YouTube. What a fantastic resource it is, YouTube. It's a video that shows the 1973 Xerox Alto, arguably the first personal computer with a mouse-driven GUI and networking via Ethernet. Of course, we've been talking a lot about the Alto, because of looking for prior art on the IP Innovation/Acacia patent. The YouTube video also shows a snip of a Xerox promotional video of the day, showing a guy using the Alto, and a look at a demo that Xerox showed to Apple's Steve Jobs and his posse. Appearances also by Bob Metcalfe, Larry Tesler, Steve Jobs (who ran away with the GUI concept after Xerox top management failed to grasp what they had), Adele Goldberg (who gave him the demo, over her protests to Xerox management), Bill Atkinson, John Warnock and the basement of the Xerox Parc Research Center, where you see an Alto in the flesh. Digibarn's Computer Museum has pictures of an Alto II XM. While Xerox didn't commercialize the original Alto, mainly because they didn't grok it at all, they did later sell the Xerox Star 8010 "Dandelion", modeled after the experimental Alto and first introduced in 1981. It's just fun to see all this. Two of the references in the '421 patent are papers that explain how Star worked, "Designing the Star User Interface" and "The Star User interface - An Overview".

And I thought you might be interested in a recent ruling about digital records being introduced as evidence. How do you know if emails and other digital records introduced as evidence are authentic? It's an issue that is coming into play more and more in the RIAA litigations too. I've told you how courts make progress, not necessarily quickly, to catch up with tech. And here's an example of it doing so, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?.

The abstract explains:

In re Vinhnee, a Ninth Circuit Bankruptcy Appellate Panel decision, employed Edward Imwinkelried’s eleven-step foundation process for authenticating computer records. In employing the eleven-step process, the Vinhnee court articulated a stricter standard than has previously been used by most courts for admitting computer records into evidence. This Article will first consider the various foundation standards that courts have applied to computer records. Next, the Article will analyze the Vinhnee standard, consider its elements, and compare it to the previous standards and commentary. Finally, the Article will conclude that the Vinhnee approach reflects common concerns by courts and commentators, and may influence other jurisdictions.

It was, as you see, a bankruptcy case, where a credit card company wanted a portion of the debt to be exempted from discharge. The court refused to accept the company's digital records. Here's the standard that courts used to hold to, as the article sets it forth:

In 2005, the United States Bankruptcy Appellate Panel of the Ninth Circuit issued In re Vinhnee, a decision that adopted a newer, stricter standard for the authentication of computer records. The court adopted an eleven-step foundation process, advocated for by Professor Edward J. Imwinkelried, and refused to admit computer records in a bankruptcy proceeding. In light of Imwinkelried’s process, the court stated that the witness’ knowledge of the hardware and software used by the company was insufficient to prove that the computer records were reliable. The opinion marked a serious departure from the previous foundation standard employed by courts for the authentication of computer records....

Today’s lawyers rely on Federal Rule of Evidence 803(6), commonly referred to as the “business records exception” to the hearsay rule, as a way to admit business records, including those kept on computers, into evidence....Business records have been considered generally reliable because of the day-to-day reliance that businesses place on the records....

Rule 901(a) is the general authentication requirement under the FRE.19 Rule 901(b) offers, “by way of illustration only”, examples of authentication or identification that conform with the requirements of Rule 901.20 Rule 901(b)(9) states that “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result” is required to authenticate evidence.21 The FRE Advisory Committee’s note explains that this rule can be properly applied to computer records.22 However, many courts have not required specific authentication procedures under 901(b)(9) for business records that have simply been kept on a computer....

When the FRE were enacted, Rule 803(6) codified the shop-book rule as the hearsay exception for “Records of Regularly Conducted Activity.”25 The rule permits the admission of records made by a person with knowledge and kept in the regular course of a generally conducted business activity unless the source of information or method of preparation indicates a lack of trustworthiness....

After initially adopting the FRE, courts largely treated computer records as presumptively trustworthy and did not require any special foundation to be laid for the authenticity of the records.

That was then. This is now: courts are beginning to realize that digital records can be changed and that thanks to malware, they may not be reliable to begin with. I call that progress. So what is happening now is a shift. The burden traditionally has been on the defendant to prove that the records are *not* accurate; that is shifting to a burden on the one wishing to introduce such evidence to demonstrate that they are. In this particular case, the court decided to adopt these eleven steps:

Some commentators and scholars have long advocated for a more detailed foundation process for computer records. Edward J. Imwinkelried’s Evidentiary Foundations provided an eleven-step foundation process for the authentication of computer records when it was first published in 1980. In subsequent editions, Imwinkelried references scholarship on computer record authentication, including the Manual, explaining that many courts have “been lax in applying the authentication requirement to computer records” and have simply applied the traditional 803(6) foundation. Imwinkelried’s process requires the proponent to show that:
(1) The business uses a computer.

(2) The computer is reliable.

(3) The business has developed a procedure for inserting data into the computer.

(4) The procedure has built-in safeguards to ensure accuracy and identify errors.

(5) The business keeps the computer in a good state of repair.

(6) The witness had the computer readout certain data.

(7) The witness used the proper procedures to obtain the readout.

(8) The computer was in working order at the time the witness obtained the readout.

(9) The witness recognizes the exhibit as the readout.

(10) The witness explains how he or she recognizes the readout.

(11) If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

Imagine proving that a Microsoft computer is "reliable", "in working order", "in a good state of repair", and that the business using it has "built-in safeguards to ensure accuracy and identify errors". Malware of all kinds and spoofing and root kits and invasive changes to records by those unauthorized to do so would all have to be addressed. That is a higher bar, but in this day and age, who can say that it's not set at the right level? Remember the school teacher whose computer was compromised? It happens to a lot of people and businesses too. How then do you know when digital records are authentic? A court of law needs to know, so here's what happened in this Vinhnee case:

In re Vee Vinhnee began as a bankruptcy proceeding when Vee Vinhnee filed a chapter 7 bankruptcy case. Mr. Vinhnee owed a large amount of money to American Express based on two credit cards. American Express filed an adversary proceeding seeking to have over $41,000 of the debt excepted from discharge. While Vinhnee himself did not actually appear for trial, the court nonetheless conducted the trial and required American Express to present evidence. American Express called a witness who identified himself as the custodian of records for the monthly statements and laid the foundation for the records under the traditional 803(6) method. The court was not satisfied with the witness’ knowledge of the hardware and software used to produce and store the information, and refused to admit the records into evidence, even after American Express was afforded the opportunity to make a post-trial supplementary submission.

The United States Bankruptcy Appellate Panel of the Ninth Circuit upheld the exclusion of the records and further articulated the necessity of laying a careful and detailed foundation for computer records: “The paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records.” The court cited Imwinkelried’s eleven-step foundation process as “the prism” through which to view the computer records. The court specifically noted that the complexity of “ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. Technological processes such as those that allow one to alter the text of documents, the court explained, necessitate the need for a new, more in-depth foundation. Vinhnee also cited The Manual for Complex Litigation as well as other contemporary commentators who have highlighted the need to protect, and inquire into, the integrity of electronic documents.

The professor who developed the eleven steps did so back in 1980. It wasn't until 2007 that a court of appeals decided he was right. Yes, slow. But the courts do eventually get there, and by setting forth those steps and making it known that there were special issues in digital records, he contributed to the knowledge that courts had to work with so as to reach a more accurate ruling. So putting technical knowledge out there has value, even if it takes a while for it to be absorbed, as the article explains:

The Appellate Panel gave credence to the lower court’s ruling, but more importantly, it supported the decision with references to commentators, trends in the law, and Imwinkelried’s eleven-step process. By essentially adopting Imwinkelried’s eleven-step process, the court gave basis and precedent to the lower court’s disapproval of the custodian’s lack of familiarity with the hardware and software.

Update November 2011: Here's a panel discussion on Steve Job's legacy, which includes information regarding Jobs' visit to Xerox Parc and seeing SmallTalk.


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