copyrights – Techdirt (original) (raw)

Intellectual Property Is Neither Intellectual, Nor Property: Discuss

from the have-at-it dept

Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered “intellectual property,” and that focusing on the use of “property” helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves “free market supporters” or, worse, “against government regulations and handouts.” It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were “property”, contorting themselves into believing that these government handouts were somehow a part of the free market.

For years I got strong pushback from people when I argued that copyright and patents were not property — and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the “right” that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of “property”, when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.

Either way, it’s great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to “free market” and “property rights” supporters why “intellectual property is not property.” If you’ve been reading Techdirt for any length of time, most of the arguments won’t surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

Imagine two farms sitting side by side in an otherwise virgin wilderness, each of them homesteaded by a husband-and-wife couple (let?s call them Fred and Wilma and Barney and Betty) ? two parcels of newly created private property appropriated from the commons by productive labor. One day, as Fred and Wilma are both working outside, they both notice Betty walking through the orchard of apple trees that Barney and she had planted some years back and which are now just ready to bear fruit for the first time. As Betty picks some of the first ripening apples to use in baking a pie, she sings an enchantingly lovely ballad that she and Barney had made up together back when they were courting. For the rest of the day Wilma can?t stop thinking about that beautiful song, while Fred can?t stop thinking about those trees full of delicious apples. That night Wilma sings the song to her baby daughter as a lullaby. Fred, meanwhile, sneaks over onto Barney and Betty?s property, picks a sack full of apples, tiptoes back to his property and proceeds to eat the lot of them, feeding the cores to his pigs before heading back inside.

Do you think that Fred and Wilma both did something wrong? Are they both thieves? Did both of them violate Barney and Betty?s rights? After all, Fred stole their apples, and Wilma ?stole? their song ? that is, she sang it to someone else without asking for permission. If you?re having trouble seeing Fred and Wilma?s actions as morally equivalent, it?s because of a fundamental difference between the two types of ?property? they took from Barney and Betty.

That fundamental difference is that Barney and Betty?s song, like all ideal objects, is a nonrivalrous good. In other words, one person?s use or consumption of it in no way diminishes the ability of others to use or consume it. As expressed with characteristic eloquence by Thomas Jefferson (who perhaps not coincidentally viewed patents and copyrights with skepticism), the ?peculiar character [of an idea] is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.?

By contrast, physical objects like apples are rivalrous: Once Fred and his pigs had finished devouring the ones Fred stole, they were gone and nobody else could consume them. Even when physical objects aren?t physically consumed by their owners ? think paintings or plots of land ? there is still unavoidable rivalry in using, enjoying, and disposing of them. The owner exercises that control over the owned object, and therefore nobody else does.

This is why it?s clear that Fred inflicted harm on his neighbors, since he took the fruit that they grew and now they don?t have it anymore. But Barney and Betty still have their song; the fact that Wilma sang it did nothing to prevent them from singing it anytime they want to. So, if Wilma did harm to Barney and Betty, what exactly is it?

The whole paper is really worth reading, and digs in on how and why people create, the nature of externalities in the creative process, and what actual data shows on the incentives of copyright and patents in driving innovation and creativity. The paper also digs deep on how excessive monopoly rights vastly hinder follow-on creativity and innovation (which is how most innovation and creativity come about in the first place).

In the case of copyright, excessive internalization is an impediment to the process of borrowing that is essential for the growth of creative works. While each artist may contribute new ideas to the cultural landscape, their contributions are based on the previous body of work. We all begin as consumers of ideas ? and then some of us go on to create new ones. Take the case of Star Wars. The Jedi, Darth Vader, and the Death Star were all new in 1977, but George Lucas relied heavily on older ideas to make them possible. It is common knowledge that Lucas borrowed from Joseph Campbell?s Hero With a Thousand Faces when crafting the hero?s journey of Luke Skywalker. But the borrowing didn?t stop there. The famous opening crawl is virtually identical to those at the beginning of episodes of Flash Gordon Conquers the Universe. Telling the story from the perspective of two lowly characters, the droids R2-D2 and C-3P0, was inspired by Kurosawa?s The Hidden Fortress ? something Lucas freely admits.

But while Lucas?s borrowing was permissible under copyright law, other borrowing is not, as current law gives rights holders control over broadly defined ?derivative works.? A number of Star Wars fan films have been shuttered or severely limited in their scope (mostly by prohibiting commercialization) due to threats of litigation by Disney. The genre of fan fiction is a legal gray area, with many tests to determine whether it constitutes fair use, including commercialization and how ?transformative? the work is. While the vast majority of these works will never amount to much, their existence is more tolerated than established as a clear-cut case of fair use. A more aggressively enforced copyright regime would almost certainly be the end of most fan fiction.

Thankfully, the paper also takes on the “fruits of our labor” view of both copyright and patents and why that doesn’t make much sense either.

The idea that people should be able to enjoy the fruits of their labor has clear intuitive appeal, but its invocation as a justification for stopping other people from making use of your ideas without your permission suffers a fatal difficulty: The argument proves far too much. Indeed, the problem goes beyond the widely understood ?negative space? of intellectual creations that stand outside of patent and copyright protection: scientific discoveries, fashion, comedy, etc. Given that every new business venture starts with an idea, why shouldn?t every first entrant in a new industry be able to claim a monopoly? Or, for that matter, why not every first entry in a geographic market? If someone has the bright idea that their hometown needs a Thai restaurant and succeeds in making a go of it, why shouldn?t she be able to prevent competitors from coming in to poach her good idea ? at least for a couple of decades? On the other hand, given that every new idea is in some way adapted from earlier ideas, why shouldn?t those first entrants in new industries and new markets be seen as ?thieves? and ?pirates? who are infringing on earlier ideas? Once you really start working through the implications, the whole argument collapses in a hopeless muddle.

The problem is this: The claim that enjoying the fruits of one?s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity ? as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles ? in particular, some sense of relative costs and benefits. But now we?re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

The paper then suggests some reforms for both copyright and patent law that seem quite reasonable. On copyright, they suggest reducing terms, requiring registration, limiting infringement to commercial exploitation, expanding fair use, narrowing derivative works, and ending anti-circumvention (a la DMCA 1201). These are all good suggestions, though the “commercial exploitation” one is one that sounds good but is often hard to implement, because what is and what is not “commercial exploitation” can be somewhat gray and fuzzy at times. But the intent here is sound.

On patents, the paper suggestions are to eliminate both software and business method patents, greatly tighten eligibility requirements, and no infringement in cases of independent invention. To me, as I’ve argued, the independent invention point is the most important. Indeed, I’ve argued that we should go further than just saying that independent invention is a defense against infringement. Instead, we should note that independent invention is a sign of obviousness, meaning not only that the second invention isn’t infringing, but that the initial patent itself should likely be invalid, as patents are only supposed to be granted if the idea is not obvious to those skilled in the art.

All in all, this is a great and thorough paper, especially for those who really want to insist that copyrights and patents should be treated like traditional property, and position themselves as supporters of “free markets.” I fully expect — as I’ve experienced in the past — that those people will not engage seriously with these arguments and will rage and scream about them, but it’s still important to make these points.

Filed Under: copyrights, intellectual property, non-rivalrous, patents, property, property rights, rivalrous, trademarks

Our New IP Czar Gives His First Speech… And It Is Not Encouraging At All

from the almost-every-point-is-wrong dept

Last summer, when President Obama finally got around to nominating a new IP Czar (technically the “Intellectual Property Enforcement Coordinator” or IPEC), Danny Marti, we were at least moderately hopeful that he didn’t come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we’d hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern — but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a “Creativity Conference” put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look:

After kicking off with a weak joke about his job title, he starts right in with the misleading talking points.

Summarizing my job, in the spirit of this conference, I think it’s fair to say that the IPEC Office is the Executive branch’s “creative conscience.”

First of all… what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti’s predecessor, Victoria Espinel, we often wondered why there was an “enforcement coordinator” at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to “promote the progress of science and the useful arts.” And enforcement is often not the best way to do that. In fact, as we’ve spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it’s interesting to see Marti suggest that his role is about being a “creative conscience.” For a second, I thought that maybe this meant he’d actually consider what was best for creativity — meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you’ll quickly learn, by “creative conscience” he actually means “protector of a few legacy gatekeepers who often screw over actual creators.”

Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action.

Again, that’s good if we’re talking about actual creativity and all creators. But… he’s not.

I’m also responsible for helping marshal the federal government’s resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy.

And there we go, right off the tracks. He is focused on protecting the existing system — even when it is shown to harm creativity, free expression and innovation. That’s a problem. Maybe he didn’t really mean that? Nope, he means it:

Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We’re speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company’s market edge. Or the brands that distinguish our companies and their goods and services.

Already, he’s making the cardinal sin of talking about intellectual property that we were just discussing: conflating the “property” piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you’re going to make really silly statements like Marti does next:

Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the “core copyright industries” — those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials — added more than $1 trillion to gross domestic product and created and supported millions of jobs.

That’s not true. We’ve gone through these numbers in the past, and shown how they’re simply misleading and no one should be using them to make a serious point. They very broadly define the “core copyright industries” such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don’t actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the “core copyright industry” isn’t contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws.

Intellectual property-based industries are among the U.S.’s strongest exporters.

Well, sure, that’s true if you argue that any company with a brand is an “intellectual property-based business,” but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that’s plainly ridiculous.

Overall, IP industries accounted for over 60% — Six Zero — of US exports.

Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands.

The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars.

And how much of that is because of copyright law — and how much of it is because it’s content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he’s focused entirely on being the “creative conscience,” his actual focus appears to be almost entirely on the commercial side of the creative ledger.

That is why it’s so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content.

That last one is a “I work for the President and need to give my shout out to the TPP and TTIP agreements” talking point. But, really, what did he say before that shows why it’s “so important to understand and protect IP”? Frankly, I don’t see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn’t even enter the equation, which is kind of odd if you’re positioning yourself as the “creative conscience.”

Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of “creative conscience” is he?

Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will “open foreign markets” while stifling free expression?

Without understanding these things, for him to just automatically leap to the claim that we have to “protect” the existing system, it’s difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances.

The timing of today’s event is fitting. Sunday is World Intellectual Property Day — a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives.

Is it? Really? No, “World Intellectual Property Day” is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity “in our daily lives” is frequently done without the use of intellectual property laws — and, all too frequently, conflicts with those laws.

This year’s theme is “Get Up, Stand Up. For Music” invoking Bob Marley and Peter Tosh’s tune, to illustrate how song can serve as a call to action…. Bob Marley’s song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over.

Right. Like, remember that time that Bob Marley’s family tried to reclaim the copyrights to two of his albums, including “Burnin'” where “Get Up, Stand Up” first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley’s family for the right to use that theme for this year’s “World Intellectual Property Day,” right?

Yes, ladies and gentlemen, Danny Marti is the US’s “creative conscience”… for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws — when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others’ songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That’s not exactly a ringing endorsement for stronger copyright laws.

And, again, if we’re speaking up for “artistic communities, the world over,” how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count?

Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist’s right to make a living off of his or her artistic labor.

Yes, unless you’re Bob Marley’s family. Then let us stand up for Universal Music’s right to go to court to block the Marley family from that right! Or, unless you’re a remix artist creating wonderful new songs by building on the works of the past.

Also, where in the constitution does it say that anyone has a “right to make a living off of his or her artistic labor?” I have many friends who “labor” quite hard in making music, but don’t make livings from it. Should I send them to Marti to solve that? Will he “marshal the federal government” to make sure they make a living?

Because this is another nefarious myth. You have no “right” to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have “a right to make a living” from their creative labor, shouldn’t they be guaranteed a living? Everyone knows that’s crazy. So why do we repeat the myth when it comes to music? Most musicians — in fact, nearly every musician — has never “made a living” off of their music. Only a very few have. And it’s not because they had a “right” to make a living.

And let us stand up to forcefully reject those who believe that the theft of one’s creative output is somehow acceptable. It is not.

Of course, we’re back to the misleading use of “theft.” Do we consider what UMG did to Bob Marley’s estate “theft”? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar “feel” to a Marvin Gaye song as “theft”? Does he consider a woman posting a 30-second video of her child dancing to a Prince song “theft”? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan — many of whose greatest works where near note-for-note replicas of others’ songs — engaged in theft?

Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word “theft” doesn’t really cut it — which is also why that’s not what the law says. You’d think that the guy whose role is to help enforce the law would understand that copying a song isn’t “theft.” It’s worrisome that he does not.

When we speak of the role of creativity in our lives, we’re also speaking about human expression, building communities. The sharing of stories — whether through print, music or film — brings people together, fosters discussion, builds bridges and helps create common identity.

Of course, if that “discussion” or “common identity” strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti’s world “theft”) and thus he will “marshal the forces of the federal government” to bring you down. All in an effort to protect the glorious markets of the creative conscience.

Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer.

And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail.

And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one.

In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way… I feel that we’re rapidly approaching the administration’s favorite buzzword. I know it’s coming, I just know it… and…

One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem — government, the private sector, and civil society — can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior.

Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out “anti-social behavior” online. Hmm. Anti-social behavior? Wouldn’t that bar songs like “Get Up, Stand Up” that could be seen as “anti-social” in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression?

Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair.

I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is “unfair.” Yet, these all seem to be things that IPEC supports.

Stakeholder responsibility will create an environment conducive to creativity.

Let me translate this for you: “Search engines should start censoring sites that the MPAA dubs “unfair” because they challenge the MPAA’s business model.”

It will benefit those who make a living producing creative works.

Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down.

It will benefit those who enjoy those works.

Unless you no longer have access to them, thanks to US courts censoring them.

Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity.

How? This is a serious question, but I’d like someone to answer it, because history doesn’t come even remotely close to supporting that claim as can be seen by Marti’s next ridiculous statement:

The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy.

And each and every single one of those was decried initially by the legacy forces — the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it — especially innovations like the VCR. And, of course, the internet. We’ve had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we “respected” IP in the terms of the legacy gatekeepers, we’d have none of those innovations.

Look, I get it: Marti’s very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn’t even realize just how ridiculous it was for anyone in the “intellectual property” world to cite Bob Marley as a good example of supporting creators.

So go on, Marti, “Get Up, Stand Up!” but recognize that what you’re standing up for, is not for the “creative conscience” or for creators themselves, but those who seek to be gatekeepers on that creativity.

Filed Under: copyrights, creative conscience, danny marti, intellectual property, ip czar, ipec, patents, protectionism, trademarks
Companies: microsoft, mpaa

Copyrights & Patents Have Become A Religion; All Data Will Be Ignored

from the I-WANT-TO-BELIEVE dept

If you’ve read Techdirt for any length of time, you’ll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a “duty” to protect their interests.

It’s not an assertion borne of data or extensive research. It’s a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they’ll often declare this is only because we’re not doing the things that aren’t working hard enough or often enough or with enough severity.

Mark Lemley, whose work — especially that focused on the broken patent system — has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.

Lemley opens by noting that we supposedly live in an “age of reason,” with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.

This isn’t just a post-file sharing phenomenon. This dates back more than a half-century.

Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.

There’s more evidence available now than there was 60 years ago, but nothing’s improved.

The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation… This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy… Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.

Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn’t let up. When the available data doesn’t support held beliefs, there are options.

Shoot the messenger:

A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.

Someone can be paid to produce data that agrees with held views.

A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.

Or, you know, ‘find God,” as it were…

Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.

Lemley quotes Berkely’s Rob Merges, a leading patent scholar — one who turned to faith when the data didn’t support his predispositions.

After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”

With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who “feel” or “believe” in the fundamental “rightness” of their arguments. Data need not apply.

The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.

There’s a reason why religions and governments shouldn’t be allowed to intermingle. This adherence to the “moral” rights of creators plays hell with the system.

It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.

When the faithful guide the creation of legislation, bad things happen — things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like “fair use” give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don’t want it fixed.

Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.

Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs — no matter how much data is provided.

If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.

This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed “industry killers” have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.

Filed Under: belief, copyrights, evidence, faith based, mark lemley, patents, religion, research, trademark

Free 3D-Printable Kit To Connect Different Toy Construction Sets Released — But Partially Blocked Due To Patents

from the think-of-the-IP-lawyers dept

I’ve been hearing about this project for a few months now, and I’m excited to see that it’s finally been released. F.A.T. Lab and Sy-Lab have officially released their Free Universal Construction Kit, a set of 3D printer instructions for creating nearly 80 awesome “adapter” bricks that let you connect ten (sort of) popular children’s construction playsets:

Included are connectors between the following sets: Lego, Duplo, Fischertechnik, Gears! Gears! Gears!, K’Nex, Krinkles (Bristle Blocks), Lincoln Logs, Tinkertoys, Zome, and Zoob. There’s also a giant universal adapter block. I’ll admit I’m a bit disappointed that Megabloks didn’t make the cut, as my son tends to go back and forth between those and Duplos. If you want them, they’re available at Thingverse, though you’ll obviously need a 3D printer to actually do anything with them. Here are some of the photos they’ve put up of the kit in action:

The general idea is really cool. Kids don’t care if Lego and Tinkertoys come from the same company. They want them to work together nicely. That’s part of the fun of tinkering. But, of course, the toy companies want to “control” the market and pretend that only their toys exist. Acknowledging anyone else’s toys is seen as a mistake — even though it actually adds value to the toys by letting you do more with them. In the past we’ve seen Lego, in particular, be particularly aggressive in trying to lock out competitors.

Of course, that raises the big question: what about intellectual property law with this offering? The non-commercial nature of it likely protects them against trademark issues, though it does seem silly that actually offering such useful connector blocks for sale might put you in legal hot water. Either way, I know the guys who put this together spent a ridiculous amount of time exploring the different legal issues involved here, and have put up a detailed discussion on them — with a clear recognition that even after being as careful as possible to not infringe on anyone’s rights, they still have to note:

Some may express concern that the Free Universal Construction Kit infringes such corporate prerogatives as copyright, design right, trade dress, trademarks or patents of the supported toy systems. We encourage those eager to enforce these rights to please think of the children — and we assert that the home printing of the Free Universal Construction Kit constitutes protected fair use.

Furthermore, they have a pretty full discussion on how the use of IP here is not about protecting rights at all, but about attempting to gain market dominance:

Today’s manufacturers have little or no intrinsic motivation to make their products compatible with anyone else’s. Indeed—despite obvious benefits to users everywhere—the implementation of cross-brand interoperability can be nearly impossible, given the tangled restrictions of patents, design rights, and trademarks involved in doing so. So we stepped up. The Free Universal Construction Kit is the VLC of children’s playsets.

As we can see from the example above, interoperability is a question of power and market dominance. Most market leaders regard interoperability as an anti-competitive nuisance, a regulatory check on their ambition, or a concession to the whining of lesser players. Quite simply, interoperability is the request of the disenfranchised. And which end-user, in so many ways, is less enfranchised than a preliterate child?

The simple fact is that no toy company would ever make the Free Universal Construction Kit. Instead, each construction toy wants (and indeed, pretends) to be your only playset. Within this worldview, the other manufacturers’ construction sets are just so many elephants in the room, competing for your attention on the shelves of Toys-R-Us. No longer. The Free Universal Construction Kit presents what no manufacturer could: a remedy providing extensible, post-facto syntactic interoperability for construction toys. Let the fun begin!

Of course, there’s still the issue of patents… and there the folks behind this project also did something interesting. In that list of supported toys are two — Zoob and Zome — that are technically still under patent protection. To deal with those two, the kit actually does not include connectors to either of those toys. Instead, both have a pending date, to be released on the day those patents expire. In other words, progress and the ability to interoperate with those toys must wait until the monopolies expire. Progress is being hindered, not promoted here.

We’ve discussed in the past how 3D printing is an upcoming legal battle, as many of the issues that previously arose solely the digital realm will be crossing over into the physical. We’ve also noted how The Pirate Bay has already stepped up with plans to offer a place to share 3D printable plans — and, indeed, the folks behind this project note that it will soon be up on that site, when it’s ready.

The more you look at this, the more it makes you wonder what else simply isn’t being done today due to over-aggressive desire for control via IP laws, rather than recognition that making a product more valuable and useful is actually a good thing.

Filed Under: 3d printing, adapters, bristle blocks, construction sets, copyrights, duplo, fischertechnik, gears, innovation, krinkles, lego, lincoln logs, patents, playsets, tinkertoys, toys, trademarks, universal construction kit, zome, zoob

Really Bad Idea: Make ISPs Liable For Cybercrime Efforts

from the oh-come-on dept

Let me start off this post by noting that, while I don’t know Noah Schachtman personally (other than a few emails back and forth many years ago), I’ve always liked his work writing for Wired and other publications. However, I’m surprised to see him advocating the strong use of third party liability as a tool to deal with cybercrime, as a part of a paper for the Brookings Institute. The idea is that, when talking about spammers & scammers online, there are, perhaps, a small number of ISPs who tend to do business with these guys, and Schachtman believes that by making those ISPs liable, it would pressure them into cutting off the bad clients.

Schachtman has numerous caveats and is pretty specific in his plan that it only apply to a specific list put out by a trusted independent third party, that the methodology for being on the list is clear and that an appeals process also be explicit. On top of that, he says that it should be limited to “universally recognized crimes, like theft, fraud, and criminal trespass” and is clear in saying that it “wouldn?t work for politically inflammatory speech or copyright infringement; they?re too open to abuse and overly broad interpretation.”

Also, in reading the report, it’s clear that this isn’t just something he came up with overnight, or some random blogger or reporter dashing off a column on some fragment of a thought they had an hour before deadline. He’s put a lot of thought and research into this. But I still think the idea is dreadful and shortsighted. It wouldn’t solve the problem it seeks to deal with, at all, and (even worse) it would open up all sorts of collateral damage or unintended consequences.

First off, it wouldn’t solve the problem it’s trying to solve. We’ve seen this time and time again with attempts to shut down any kind of “rogue” behavior online by going after intermediaries. The bad players just figure out some other place to go, and they often go further underground in ways that makes it tougher to find or track them and their activities. Even Schachtman admits that many would likely jump to ISPs elsewhere. So, if it’s not actually stopping the behavior, then what’s the value?

Second, while Schachtman is clear that this shouldn’t be used for those other things, chipping away at third party liability protections in any arena is quite dangerous, because it’s not hard to see lobbyists using that to push for such rules to be expanded to cover their pet area. Anyone who thinks that the RIAA and MPAA wouldn’t pounce on this and work hard to add copyright infringement to the list simply hasn’t been paying attention. What Schachtman describes in terms of the ability to sue an ISP for third party actions has been the legacy entertainment industry’s wet dream for over a decade. Anyone who thinks that politicians would distinguish the types of crimes that Schachtman focuses on from garden variety claims of copyright infringement is living in a dream world.

And, honestly, I’m still at a loss as to why this is actually needed. It seems like there remain much more effective ways to deal with issues like this that don’t involve giving up basic concepts of properly applying liability to the actual party responsible. The first is actually targeting those responsible for the crimes. If they’re using known ISPs, then it seems like there is a record trail that can be traced back to go after those actually breaking the law to try to put them out of business. Second, if the concern (as it appears) is that some US ISPs are doing this and that’s a shame, then deal with that publicly, by more publicly shaming ISPs who are popular among criminals. Use public pressure to get them to (a) either help law enforcement or (b) to enforce reasonable terms of service. Trying to make them liable as a third party will make life difficult for them, but not the actual scammers.

Filed Under: copyrights, cybercrime, isps, liability, third party liability

Where ACTA Disagrees With US Law

from the but-they-promised... dept

With Senator Wyden asking the Congressional Research Service to investigate how ACTA might conflict with US law (or restrict the ability to reform the law), KEI has put together a list of specific areas where ACTA’s text is inconsistent with US law. Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law. ACTA defenders have stressed the point, repeatedly, that nothing in ACTA can legally change US law. But what no one explains is what happens when the law and the agreement are in disagreement. That’s because no one wants to deal with the inevitable: when such situations come about, US lobbyists will scream about how we’re “not meeting our international obligations,” and will put plenty of pressure on the US until we get into “compliance.” So, I’m wondering if those who insist ACTA won’t change US laws will agree now to speak out against anyone who cites ACTA down the road in asking for US law to change?

Filed Under: acta, copyrights, patents

SCO Says Jury Didn't Really Mean What It Said… And Judge Should Order Novell To Hand SCO Unix Copyrights

from the good-luck-with-that dept

SCO really is quite the zombie of a company, isn’t it? It just never dies. It’s been a month since getting smacked down yet again and having a jury declare that Novell still owns the Unix copyrights, and they were never transferred to SCO (after a judge had already said the same thing). And yet, as Slashdot alerts us, SCO has now told the judge he should order Novell to hand over the copyrights anyway. Talk about getting desperate. When will SCO finally be put out of its misery?

Filed Under: copyrights, linux, software, unix
Companies: novell, sco

Ronald J. Riley Sued By The Lawyer Who Copyrights Cease-And-Desist Letters

from the who-to-root-for? dept

If you read the comments on this site regularly — especially concerning posts having to do with patents or the patent system — you’re probably quite familiar with a guy named Ronald J. Riley. He’s quite the character. He’s also quite the fan of the existing patent system. He’s started a bunch of different “organizations” supposedly to protect the patent system, though there are plenty of accusations that Riley’s main focus in life is getting unsuspecting inventors to give him money. Someone has even created a site cataloguing Riley’s ridiculous statements. It’s not clear what Riley has actually done in his life, but he has been effective over the years in using his made up organizations to give himself an air of legitimacy, which often gets him quoted in the press on patent issues, despite showing a consistently poor understanding of the process of innovation, technology and the patent system itself (for example, he believes the purpose is only to protect small inventors, not to promote overall innovation — and he believes that anyone accused of patent infringement clearly “stole” the idea, even if they came up with it independently).

Riley also has a history of being… well… a bit abrasive in comments on various sites all across the internet, including here at Techdirt. He enjoys personally insulting me or lying about me and does so on a regular basis (such as here and here for just a couple of examples). Most hilariously, he continually accuses me of somehow being on the payroll of companies who support the patent reform bill that keeps showing up in Congress every year, despite the fact I have clearly stated that I think the bill will make the situation worse rather than better. Riley is also famous for taking credit every time this same patent reform bill fails to move through Congress, ignoring that it’s actually the powerful pharmaceutical industry lobbyists that kill it, not Riley. In the three plus years that he’s been commenting here, Riley has never once had anything other than an insult or a lie to say about me.

Given all that, I can’t believe that I’m actually about to defend him.

A few people have sent in the news that Ronald J. Riley is being sued by the Dozier Internet Law Firm. From Dozier’s press release, the actual charges are not at all clear. The only thing listed in the press release is that “Riley’s misconduct includes his attacking bloggers and blog and forum moderators with threats of getting IP addresses of anonymous bloggers and then tracking them down.” Given the way Riley acts around here, those accusations don’t seem particularly surprising — but it’s not clear what’s illegal about them. Perhaps there is more to this lawsuit, and if so, Dozier should be much more forthcoming about it, because based on what’s been described, it certainly seems like Dozier is just suing Riley because Riley is a pest. And while Riley may be a pest, may be insulting and may even be misleading, it’s hard to see what’s illegal about his activities. Despite the fact that he regularly insults me and lies about me, I have no problem with Riley posting his ridiculous messages — as it just encourages others to show how clueless Riley is.

And, of course, Dozier is something of a piece of work himself. You may recall his name from when he tried to send an online review site a cease-and-desist letter that he claimed they could not post on their own site because it was covered by copyright. He later announced that courts had said cease-and-desist letter copyrights were acceptable, even though that turned out to be quite an exaggeration of what had actually happened.

So, here we have a lawyer who has repeatedly tried to silence critics with questionable use of copyright law, suing a patent system defender who throws around insults and lies like they’re going out of fashion. These two were made for each other, so it’s really difficult to root for one over the other — but, based on the facts explained so far, it’s difficult to see what Riley has done wrong, other than be an annoying jerk. And, even if that’s annoying, it’s still not illegal.

Update: In the comments, someone points out that the entire lawsuit filing is available on Dozier’s website. Amusingly, it actually quotes one of RJR’s comments here on Techdirt (though, the lawsuit doesn’t mention where it’s from). Basically, I stand by what I said originally. While Dozier does a good job outlining RJR’s history and pattern of lies and mistruths, his ability to either make up organizations or surreptitiously recreate defunct organizations that had a good reputation, there’s little in there that appears to be illegal. The only actual charges seem to be from highly questionable claims that RJR somehow infringes on Dozier’s trademarks.

Filed Under: copyrights, john dozier, lawsuits, patents, ronald j. riley
Companies: dozier

Is The Copyright Royalty Board Unconstitutional?

from the this-sounds-familiar... dept

Last month, we wrote about a Constitutional challenge to the patent appeals board. It was based on the theory that the Constitution clearly says that certain appointments can only be made by the President, the courts or the heads of a department. A legal change a few years back let the USPTO director appoint judges to the patent appeals board — but the Patent Office director is not the head of a department. He reports to the Commerce Secretary who should be nominating the judges — thus suggesting that all of the appointments over the last few years have been unconstitutional.

Of course, it didn’t take long for folks to recognize that the same question may apply well beyond the patent appeals board. In fact, there’s a court case challenging whether the current Copyright Royalty Board is constitutional as well. While the article doesn’t go into details, it sounds like it’s an identical issue. The CRB members are appointed by the Librarian of Congress rather than the President or the head of a department. This particular lawsuit has been filed by an organization that was hoping to compete with SoundExchange for collecting and distributing royalties. The CRB rejected the request. Given how many problems SoundExchange has had in carrying out its charter, it would seem like competition is a pretty good idea. However, rather than fighting that decision specifically, the company recognizes this same constitutional question. Funny how the boards involved in both copyrights and patents may be unconstitutional for the same basic reason.

Filed Under: appointments, constitution, copyright royalty board, copyrights
Companies: soundexchange

What Kind Of Progress Are We Promoting?

from the the-big-question dept

Continuing my series of posts exploring some of the basics of “intellectual property,” I wanted to discuss that key clause in the Constitution that I brought up in the first post in the series:

“The Congress shall have Power… 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;”

Unfortunately, many have interpreted this clause to mean that any such monopoly granted must “promote the progress of Science and useful Arts.” However, a much more reasonable reading of this clause — especially given Jefferson and Madison’s clearly stated concerns about it as they argued over whether or not to include it — is that these monopoly grants (whether copyright or patent) should only be considered Constitutional if they actually “promote the progress.” What Madison and Jefferson saw (which is all too often ignored these days) is that granting a monopoly has both negative impacts and positive impacts. If the positive impacts outweigh the negative, then you can say that the granted monopolies promote the progress. If it’s the other way around, however….

Now there are some who insist that there are no negative impacts of such monopolies, but that’s easily shown to be false. Clearly, by limiting the ability of everyone else to make use of the ideas or content, that’s a loss. The argument in favor of these monopolies is straightforward: that without the monopoly, there is little (or perhaps no) incentive for the creator to create the content or bring a product to market in the first place. Even for those who recognize the downsides to patents and copyright, many will argue that this particular benefit vastly outweighs the negatives. However, it would appear to be a more open question than many believe.

There are different parts to break out in examining the question of whether or not a patent or copyright actually “promotes the progress.” First, it’s weighing the negative impacts. To do that, you start out by determining the deadweight loss from the monopoly pricing that is enforced via the patent or copyright. This would be the higher price that can be charged for the good, thanks to the exclusivity granted by the government. The second, much more difficult to calculate, concept to figure out is whether (and to what degree) that exclusivity also slows down additional later improvements, which would, clearly, go against the concept of promoting the progress. This point is often ignored in discussions about patents, due to the fact that many look at an invention in a “static” world — where the invention (or new content) is the end of production. However, in a dynamic world, innovation is actually an ongoing process of experimenting and changing and tinkering. If each stage of that process is limited and blocked, then clearly it can slow down “the progress” by quite a bit. Third is to look at other costs, such as diverted resources to legal fees.

Of course, it’s important to look at the benefits side of the equation as well, and weigh them against the negatives. On that side, the question should be whether or not the content or invention would be created at all in the absence of the protection. To answer that question, what you really need to look at is whether or not there are alternative business models that would create an acceptable likelihood of return to still have the product created. If such models exist, then it would suggest that the “benefit” of the monopoly is somewhat limited. However, if such models do not exist, then you need to account for the loss associated with the invention or content never being created, including the further impacts down the line (if there were no steam engine, would there be no steamboats etc…). You can also look at whether or not such inventions or content would take longer to produce in the absence of protection, and account for how that might slow down the pace of innovation. When it comes to patents, there are also some who claim that another important benefit is “disclosure.” That is, a part of the bargain for getting the patent is that you need to disclose the details of the concept so that others can learn from it, and that disclosure should, in theory, create further innovations.

So what does the evidence show? I had been working out a list of all the research to include in this post when I saw that James Bessen and Michael J. Meurer had written up part of a summary of their new book, Patent Failures, which we had mentioned recently. The summary goes through much of the peer reviewed research that I had been planning to mention on the impact (good and bad) of patents, and reveals a rather consistent finding: there is almost no evidence that patents help promote the progress. Specifically:

“it is hard to find evidence suggesting patents are a major factor spurring R&D investment, that patents contribute to economic growth, or even that the patent system is a source of great wealth to important inventors and innovators.”

What they find, instead, is that whenever there’s a correlation between increased research and development and patents, it’s a reverse causality. That is, greater patent protection trails greater research and development. Greater patent protection, however, does not increase research and development. What that clearly suggests is that stronger patent systems are put in place after the research and development is done, in order to protect those who did the work against competition, not to spur further innovation. That may make the earlier inventors happy (it lets them rest on their laurels rather than continue to innovate), but it goes against the very purpose of the patent system, and results in an overall societal loss. This certainly isn’t a new finding, and much of the research discussed by Bessen and Meurer can also be found in David Levine and Michele Boldrin’s book Against Intellectual Monopoly.

This isn’t just the result of one study, either, but a number of different studies comparing a number of different things, both over different time periods, across different countries, different types of products and many other factors. And almost all of the research points in the same direction. There is little evidence that patents actually do what the Constitution says they must to remain Constitutional. There is, potentially, one exception. Bessen and Meurer do note that there is some evidence that patents do have an impact on R&D in the pharmaceutical business (on this Levine and Boldrin disagree with Bessen and Meurer). Indeed, there are some people who claim that a situation like pharmaceuticals is the one case of market failure where patents could make sense, since there’s a high capital expenditure requirement on the front end, and the barrier to copying is exceptionally low on the output. This post is long enough already, but there are reasons to even doubt that patents are necessary in pharmaceuticals as well (and actually many reasons to believe that they actively harm the market for health care). However, we’ll have to cover that another time.

In the meantime, the next post in the series will pick up on exactly why the negatives associated with patents seem to almost always outweigh the positives.

Links to other posts in the series:

• On The Constitutional Reasons Behind Copyright And Patents
• Patents, Copyrights And Trademarks, Oh My!
• If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
• What Kind Of Progress Are We Promoting?
• Why Do Patents Tend To Cause More Harm Than Good?
• The Case For And Against Software And Business Model Patents

Filed Under: copyrights, economics, patents, promote the progress, research