On Tuesday a consortium of technology companies, including IBM (IBM), will launch a new initiative designed to help shield the open-source software community from threats posed by companies or individuals holding dubious software patents and seeking payment for alleged infringements by open-source software products.

The most novel feature of the new program, to be known as Linux Defenders, will be its call to independent open-source software developers all over the world to start submitting their new software inventions to Linux Defenders (Web site due to be operational Tuesday) so that the group’s attorneys and engineers can, for no charge, help shape, structure, and document the invention in the form of a “defensive publication.”

Linux Defenders will then also see to it that the publication, duly attributing authorship of the invention to the developer who submitted it, is filed on the IP.com Web site, a database used by the U.S. Patent and Trademark Office and other patent examiners throughout the world when they are trying to determine whether a proposed patent is truly novel, as any patentable invention is supposed to be.

In effect, the defensive-publications initiative mounts a preemptive attack upon those who would try to patent purported software inventions that are not truly novel — i.e., innovations that are already known and in use, though no one may have ever previously bothered to document them, let alone obtain a patent on them, a process usually requiring the hiring of attorneys as well as payment of significant filing fees.

“The idea is to create a defensive patent shield or no-fly zone around Linux,” says Keith Bergelt, the chief executive officer of Open Invention Network, the consortium launching the site. The core members of that group, formed in 2005, are IBM, NEC, Novell (NOVL), Philips, Red Hat (RHT) and Sony.

OIN’s Linux Defender program is being co-sponsored by two of the most prominent guardians of the free- and open-source software community, the Linux Foundation in San Francisco and the Software Freedom Law Center in New York. In addition, the site is being hosted and “co-developed” by New York Law School, which has, since June 2007, been sponsoring, in coordination with the U.S. Patent and Trademark Office, its own well-received, complementary project, known as the Peer to Patent Community Patent Review site. That site solicits assistance from the open-source community to produce evidence that an invention for which a patent is currently being sought was actually already known or in use prior to the patent applicant’s filing.

So-called free- and open-source software is software that, by its licensing terms, confers certain “freedoms” upon users that are usually forbidden by conventional proprietary software companies, like Microsoft. These freedoms include the right to see the software’s source code, alter it, copy it, and redistribute it. The best known open-source product is Linux, or GNU/Linux, a complete open-source operating system that has become quite popular among Fortune 500 corporations for use on their data-center servers. Patents threaten the whole free-and-open-source eco-system, however, in that none of the key open-source freedoms can be practiced if an outsider can establish that a given piece of software infringes a valid patent he holds.

The Linux Defenders program is largely the brainchild of Bergelt, who took over as Open Invention Network’s CEO this past February. The program also reflects a new, more proactive role Bergelt envisions for OIN than the group has played in the past.

Until now, OIN’s purpose has been one-dimensional: to acquire a defensive portfolio of strategically crucial patents, which OIN makes available, royalty free, to any company that reciprocally agrees not to assert any of its own patents against the Linux community. (About 50 companies have already entered into such formal agreements with OIN, of which the best known are probably Google (GOOG) and Oracle (ORCL).) The implicit threat is that if any outsider — a Microsoft, (MSFT) say, which declared publicly in May 2007 that open-source software then violated 235 of its patents — were to ever bring a patent suit against a player in the Linux community, that outsider would, in turn, risk countersuit by OIN or its member companies asserting infringement of their own patents by the outsider.

While this IP-acquisition program remains a central one for OIN, Bergelt says, OIN will also now seek to “think more creatively” about other ways to protect and foster Linux’s development by means of “relationship-building” and “information-sharing,” including efforts to explain the importance of open-source and open-platform approaches to the media, patent officials, and competition authorities, among others.

Befitting someone who plans to tackle this ambitious range of goals, Bergelt has a background that is more diverse than that of his intellectual-property lawyer predecessor, Jerry Rosenthal, who, prior to heading OIN, had served as IBM’s IP-licensing chief. Though Bergelt is also an IP lawyer, he is, in addition, an entrepreneur and diplomat. Immediately prior to joining OIN, Bergelt was the president and CEO of the intellectual-property focused hedge fund Paradox Capital. Before that, he was a senior advisor to private-equity fund Texas Pacific Group (now TPG); headed the strategic intellectual asset management unit at Motorola; and co-founded the strategic intellectual asset management unit within the electronics and telecommunications group at SRI Consulting in Menlo Park. Earlier still in his career, he spent 12 years as a U.S. foreign service officer, including a posting to the U.S. Embassy in Tokyo, where he negotiated IP rights agreements with certain Asian countries, including China.

The Linux Defenders program will actually have three components. The first will be a peer-to-patent component that, like New York Law School’s existing program, will reach out to the open-source community in search of evidence of “prior art” — proof of preexisting knowledge or use of certain inventions — that can be used to challenge applications for patents that have been filed but not yet granted. The goal here is to persuade patent examiners not to grant the patent being sought because the invention is not truly novel.

The second component will be a natural extension of the first, to be known as “Post-Grant Peer to Patent,” which will enlist similar community assistance in the search for prior art relevant to patents that have already actually issued. In this case, the goal would be — assuming such prior art is found — to initiate an administrative reexamination proceeding before the U.S. PTO to get the patent invalidated. (There have been some earlier post-grant, peer-to-patent efforts — sometimes referred to as peer-to-issue programs — by both nonprofits and private companies, but none with the commitment, and on the scale, that OIN envisions, Bergelt says.)

The third component is the defensive-publications initiative. The phenomenon of defensive publication is also not new, Bergelt acknowledges, although it has primarily been used in the past by private companies protecting proprietary business models. Since at least the 1970s, he says, when the filing of an important patent by one company would often spur rivals to respond by seeking inter-related patents designed to restrict the usefulness of the first company’s filing, proprietary companies began using defensive publication to beef up and buffer their core patents.

“They’d file one patent,” Bergelt explains, “and then the next day they’d file thirty defensive publications that would protect all of the extensions of it they could think of, so the core patent was fenced off by layers of barbed wire, if you will. . . . What I’ve done is turn that idea on its head a little bit.” (Defensive publications are cheaper and easier to prepare than full-fledged patent-applications.)

Although some factions of the free- and open-source community are ideologically opposed to the whole notion of software patents — most notably and passionately Richard Stallman, the founder of the Free Software Foundation (which is a client of Linux-Defenders co-sponsor Software Freedom Law Center, which, in turn,  supports the End Software Patents organization) — neither Bergelt nor OIN fall into that camp.

“We’re not anti-patent by any stretch of the imagination,” says Bergelt. “More patents is fine with me, as long as they’re high quality. Quality is the drum we beat.”

In fact, Bergelt says, if a developer wants to get an actual patent on his invention, and then put defensive publications around it, Linux Defenders will help him do so — so long as the developer will ultimately be contributing the patent to the Linux community.

It’s become cliche for people in the know to say that MySpace, the News Corp. (NWS)-owned Internet company, isn’t cool anymore. Facebook is the site that’s got the momentum, these people say.

An recent interesting throwaway line in a really fascinating article shed some light on this debate:

The kids all said that a) no one listens to the radio anymore, b) they mostly steal music, but they don’t consider it stealing, and c) they get most of their music from iTunes on their iPod. They told us that MySpace is over, it’s just not cool anymore; Facebook is still cool, but that might not last much longer; and the biggest thing in their life is word of mouth. That’s how they hear about music, bands, everything.

That’s a quote from Mark DiDia, head of operations for Columbia Records, which is owned by Sony (SNR). It comes from an article in last weekend’s New York Times Magazine, “The Music Man,” about Rick Rubin, the guru-like record producer that Sony hopes will save its slowing dying business. The “kids” DiDia refers to are recent college grads in a focus group. I’m certain that the management team at MySpace and Facebook will tell you a million reasons why the kids are wrong and that their business story will continue for years. Still, the thing about focus groups is that they don’t lie.

For what it’s worth, the kids may think Facebook is about to become uncool, but the oldsters are just discovering it. When I returned from a weeklong vacation I had 23 “friends” requests at Facebook, 9 from people I actually consider my friends or meaningful acquaintances. I go to Facebook about once every three weeks just to see who has asked to be my friend. I quickly leave, however, and suspect most of the 30-year-old-plus people who are now finding out about Facebook will do the same.

On Sunday, Church of England officials threatened legal action unless Sony (SNE) withdrew or altered a new Play Station 3 video game that, it claims, uses without permission the interior of Manchester Cathedral as a backdrop for gun battle between a U.S. soldier and extraterrestrial beings.

In the letter, available here from The Times (of London) site, the Very Reverand Rogers Govender writes that the Dean and Canons of the church were “shocked and dismayed beyond words” to see the use Sony had made of its cathedral in its PS3 game, Resistance: The Fall of Man, which, it says, amounts to “virtual desecration.” The Very Reverand asks for a meeting with Sony and then angles for a “substantial donation to our education department” for work against gun violence among the Manchester youth. (Manchester has been plagued by shootings.)

“We were sickened to discover,” the letter continues, “that millions of people who play the game have a choice of weaponry to use within the Cathedral including the Rossmore 236 close-quarter combat shotgun, the L23 Fareye sniper rifle and the XR-005 Hailstorm chaingun.”

A YouTube video of the (incredibly cool) game in action, which appears to be what got the Church of England officials bent out of shape, is available here.

The dispute has been well covered in the British press, (see, e.g., this Times article, or this BBC item) though I only learned about it yesterday from Bill Patry’s Copyright blog, here.

Sony Online Entertainment spokespeople have not yet responded to an emailed inquiry I made yesterday (even though I had to agree to receive emails about Sony’s game products as a condition of even obtaining the spokespeople’s contact information), but the British press quotes Sony as saying that it had all the permissions necessary to make the game.

A (London) Times reporter, after interviewing U.K. legal experts, concludes that the Church of England, or CoE (not a ticker symbol), might have a case, but U.K. intellectual property lawyer and blogger Andrew Mills of the Freeth Cartwright firm in Nottingham, has a much more detailed and skeptical analysis of the situation here.

The architecture of buildings does enjoy some copyright protection, under both U.K. and U.S. law, though that would not ordinarily interfere with other people taking photos or making drawings of the exterior. The assumption here is that CoE may be theorizing that Sony’s 3-D artists may have used copyrighted photos of the cathedral’s interior without permission. Solicitor Mills is dubious of that theory for many reasons, including the fact that copyright there lasts 70 years from the death of the copyright holder, and construction of Manchester Cathedral began in 1215. (Nevertheless, he acknowledges, there was extensive interior renovation in the 19th century, and post-World War II restoration after the cathedral was bombed in 1940.)

Bill Patry, who recently published a 7-volume treatise on U.S. copyright law, says in his blog posting that if our law applied (and the game was made here, he points out), CoE’s rights would probably be limited by Section 120(a) of the Copyright Act, which says that: “The copyright in an architectural work . . . does not include the right to prevent the making, distributing, or public display of . . . pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”

How do readers feel about this dispute? Are you with the Church, with Sony, or agnostic?

I don’t often gush about products. I’m just not a gadget guy. I liken my knowledge of computer-related toys to my fluency in Japanese a decade ago: Pretty darn good compared to someone who speaks no Japanese; pretty weak compared to someone who does.

Anyway, I’ve just started using a product that is gushworthy. It’s called the Flip camcorder, and it’s made by a San Francisco technology company called Pure Digital Technologies. What’s so great about the Flip is that 1) it’s cheap; 2) the quality is darn good; and 3) it is brain-dead easy to connect to YouTube. In other words, for $120 or $150, you can get a really basic camcorder and then quickly post videos on the Web, as my fellow CNNMoney blog MediaBiz did recently. Trust me, it’s an instant grandparent pleaser. This product isn’t for the ultra-techy crowd. It’s for people like me, who haven’t gotten around to buying an expensive camcorder (I will) and spending hours editing videos.

As for the business, this is Pure Digital’s second product line, the first being a single-use (i.e., disposable, though the company works hard to recycle them) digital camera. The company is funded by Sequoia, Benchmark, Morgan Stanley (MS) (hey Mary … missed you at D!) and others. It’s already selling Flips at retailers like Best Buy (BBY), Target (TGT) and Costco (COST) and promises to add a bunch more. What Pure Digital has gotten right is incorporating seemless software into a small device that you’re happy to toss into your bag and forget about when you’re not using. It’s really similar, in fact, to how Apple (AAPL) built the iPod around its iTunes software. And it’s got me thinking, why in the world doesn’t Sony do this? And if it won’t, why wouldn’t Sony (SNE) buy Pure Digital?

By the way, to see the Flip in action, watch this short video of Pure Digital CEO Jonathan Kaplan talking about his own company:

Though the U.S. Supreme Court cut back this week on Americans’ rights to sue for equal pay in the real-world workplace, our rights to sue for wrongs visited upon our imaginary selves in imaginary game worlds made some modestly countervailing gains.

“This has been one of the most important weeks in US virtual-world law in memory, perhaps ever,” says S. Gregory Boyd, an intellectual property attorney and games law expert at Kenyon & Kenyon.

First, in a 46-page ruling handed down Wednesday, U.S. District Judge Eduardo Robreno of Philadelphia allowed a player’s suit against Linden Lab, the maker of the popular online fantasy game Second Life, to go forward. In April 2006 Linden Lab seized Marc Bragg’s virtual property and expelled him from the game for allegedly violating its terms of use by using an “exploit” — a software trick, essentially — to buy virtual land in that world on the cheap. In October 2006 Bragg sued to recover the value of his virtual property, which he estimates at $6,000, as well as about $2,000 in U.S. currency that he had in a game-related account controlled by Linden Lab. “While the property and the world where it is found are ‘virtual,’” Judge Robreno wrote, “the dispute is real.” Though the game’s Terms of Use (i.e., the contract to which the user clicks his agreement before starting the game) required that such disputes be handled by arbitration in San Francisco, the judge found those arbitration provisions to be “unconscionable.” This was so, Judge Robreno found, even though Linden Lab offered to move the arbitration to Philadelphia and pay all of Bragg’s upfront fees. It was so, moreover, even though Bragg, who is himself a lawyer, might have seemed unusually well situated to understand the meaning of the Terms of Use.

Then, on the same day that the Bragg ruling came down, a player of Blizzard Entertainment’s wildly popular subscription-based online game, World of Warcraft, filed a nationwide federal class-action suit in Miami, Florida, against a company known as IGE (formerly International Gaming Entertainment). (Blizzard is a unit of Vivendi (VIVEF.PK).) IGE is in the business of facilitating so-called “real-money trade”; that is, it runs online exchanges where players of online games, including World of Warcraft, can buy and sell virtual currency and trinkets that have value in a particular game in exchange for real money, even though such transactions are typically forbidden by most games’ Terms of Use agreements. Plaintiff Antonio Hernandez, represented by G. Richard Newsome of Orlando, Florida, maintains that real money trade causes “pollution and interruption of the fantasy Subscribers paid for.” He alleges that IGE’s low-paid contract laborers in Southeast Asia “strip out scarce and limited virtual world resources,” devalue the in-game currency, and effectively put “honest” players at a disadvantage vis-a-vis unscrupulous ones. Hernandez says he spent more than $50 on the World of Warcraft software, more than $50 on its “Burning Crusade” expansion upgrade, and $15 per month in subscription fees. (World of Warcraft, which launched in North America in November 2004, is probably the most successful so-called “massively multiplayer online role-playing game” (MMORPG) ever marketed, with, currently, an estimated 8.5 million subscribers worldwide, according to Blizzard.)

Defendants IGE and Linden Labs each declined comment on the case against it, stating that it does not comment on pending litigation.

I have written before on the subject of real money trade in virtual worlds, both in a November 2005 Fortune feature story (“From Megs to Riches”), available here, and in a November 27, 2006 blog posting, available here, about the “Anshe Chung,” who is believed to be the first person to accumulate $1 million worth of real value entirely through machinations inside an online world (Second Life).

While some worlds, like Second Life, permit and facilitate real money trade, most, like World of Warcraft, forbid it. Still others, like Sony Online Entertainment’s EverQuest, have attempted to offer subscribers the choice of operating in versions of the world where it is permitted and other versions where it isn’t. (SOE is ultimately owned by Sony (SNE).)

Legally and factually, the more interesting of the two cases is the Hernandez class action. IGE has previously defended its business model by saying that it does not violate any game’s Terms of Use, because its employees do not play the games themselves, and, therefore, never enter into those so-called “click-through agreements.” IGE merely brokers trades between people that do play the game.

In the suit, however, Hernandez alleges that IGE, which is based in Hong Kong but has offices in Miami, Boca Raton, and Beverly Hills, is much more than a mere broker. In World of Warcraft, players can earn in-game currency, called gold, and other virtual items that bestow in-game powers or status by performing certain feats. The complaint alleges that IGE contracts with “hundreds” of “gold farmers” who are “often citizens of developing third world countries who spend up to 14 hours per day, or more, logged onto World of Warcraft collecting resources and World of Warcraft gold.” (Best story I’ve seen on the phenomenon of gold farming in China is a December 2005 New York Times article, available here.) Hernandez’s complaint claims that the IGE’s gold farmers use accounts that “are paid for, or controlled, directly or indirectly,” by IGE. He then accuses IGE of acting in a conspiracy with those gold farmers in ways that violate the consumer protection laws of Florida and the other 49 states, D.C., and Puerto Rico, which generally forbid “unlawful, unfair, unconscionable, deceptive and fraudulent business practices.”

Boyd, of Kenyon & Kenyon, says its hard to comment on the Hernandez case at such an early stage, but does say this: “Traditionally, the players have been harmed by this type of activity and not really had a voice against the people ruining the economies and diminishing the game play experience. Hopefully, this type of legal action will give them that voice.”

Well, readers, how do you feel about these unusual lawsuits, and how they should come out?