December 12, 2003
David Wessel Writes About the Patent Mess

The Wall Street Journal's David Wessel writes about the mess we are making of our patent system: - Capital: ...Now the Federal Trade Commission says it is time to lean the other way. "It's easy to get a patent and hard to challenge one," says FTC Chairman Timothy Muris. This warning is worth listening to. It comes not from an antibusiness bureaucrat or a Democratic advocate of government industrial policy, but from a Reaganite Republican who prizes property rights, markets and competition as the only sure way to prosperity. "You want property rights that create profits, but you do not want them to block subsequent innovation," says Paul Romer, a Stanford University economist. "The FTC report says that turning the dial a bit further in the direction of weaker property rights will actually speed up innovation. This may surprise people who are used to thinking that stronger property rights always lead to faster innovation. It will carry more weight because it is not just ivory tower academics saying this."... When patents are too easy to get and hold onto, they become a weapon for would-be monopolists and their well-paid lawyers to increase profits rather than a reward for innovation....

Posted by DeLong at 09:20 AM

November 10, 2003
Intellectual Property

Mark Kleiman talking sense on intellectual property: What Pharmaceuticals Has William Safire Been Using?: As Poor Richard could have told William Safire, it's better to remain silent and be thought a fool than to open one's mouth and remove all doubt. Safire's column today on prescription drug pricing and the issue of re-imports from Canada betrays a pluperfect ignorance of microeconomics. He seems to think that (1) American pharamaceutical manufacturers could collude to raise prices in Canada without violation about seventy-'leven anti-trust laws and (2) if they did manage to raises prices in Candada, that would magically cause price reductions for American consumers. His column would be as laughable as he himself is contemptible -- he is, after all, a man who, at the very start of his journalistic career, let himself be used to convey a threat from the Nixon gang that if John Dean didn't shut up he'd be put in a prison where he was likely to be raped -- if I didn't suspect that he has some residual influence in the darker reaches of the Republican power structure. The question of how to pay for innovation in the pharmaceutical market is a very tough one: it...

Posted by DeLong at 07:48 PM

November 05, 2003

The Economist looks at the recording industry. | The music industry: ...For impecunious teenagers and students, the fact that peer-to-peer sharing is free will always be compelling. Paying 99 cents for a song on iTunes, says one British teen, is unappealing because at that price she may as well buy the CD in a shop. Nor do the new services yet come close to matching the libraries of nearly all music ever recorded that the peer-to-peers boast. As for the risk of a lawsuit from the Recording Industry Association of America, the selling point for new versions of peer-to-peer networks in recent months is that they can guard the identity of users. The most popular now is Earth Station 5, based in, of all places, the Jenin refugee camp on the West Bank. After the RIAA said it would sue, its software was downloaded more than 16m times in 90 hours. So far, it seems to work. To glimpse the future, big music companies should look not at iTunes' encouraging numbers but at September's price cut by Universal Music Group, the biggest record company of all, which reduced CD prices for consumers by nearly a quarter. One reason for...

Posted by DeLong at 08:46 AM

September 27, 2003

Michael Froomkin teaches me that GROKLAW exists. It appears to be the source for all who are curious about SCO's attempt (bankrolled by Microsoft?) to extort money by creating fear, uncertainty, and doubt about the legal status of UNIX/GNU/Linux. I find it hard to see what lawyer would take SCO's case without large up-front and escrowed piles of money. And I find it hard to see what investor would commit his or her money to SCO's enterprise....

Posted by DeLong at 06:34 PM

September 15, 2003
Intellectual Property Run Amok!

Yet another instance of intellectual property "protections" run amok. This time Microsoft and all the rest of us are the victims: Silicon Valley - Dan Gillmor's eJournal - Saving the Browser: The Eolas patent lawsuit (Infoworld) against Microsoft, which has all the earmarks of yet another bad patent being wrongly enforced, is one of the biggest threats to the Net in years. If Microsoft and other browser makers have to radically revise their code, the Internet community will lose big. Ray Ozzie, CEO of Groove Networks, has done some work. And he says there's fairly clear "prior art" that should invalidate the Eolas patent. Here's Ray's analysis. Persuasive stuff. The saddest thing is the University of California's joining Eolas in the lawsuit. The whole point of a university is to distribute knowledge, not to restrict and charge for it....

Posted by DeLong at 07:59 AM

August 22, 2003
Fox: Unfair and Unbalanced

Not a big surprise... Making Light: Federal judge denies Fox's request for injunction: NEW YORK (AP): A federal judge on Friday denied Fox News Channel's request for an injunction to block humorist Al Franken's new book, whose title mocks the Fox slogan "fair and balanced." U.S. District Judge Denny Chin said the book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right is a parody protected by the First Amendment. "There are hard cases and there are easy cases," the judge said."This is an easy case. This case is wholly without merit, both factually and legally."...

Posted by DeLong at 04:33 PM

August 12, 2003
Fair and Balanced

Matthew Yglesias's weblog is fair and balanced: Matthew Yglesias: Fair And Balanced II: If you've got a blog, please consider adding a "fair and balanced" tag somewhere in recognition of Rupert Murdoch's out of control litigiousness (tort reform, anyone?). You also should consider buying the book....

Posted by DeLong at 12:37 PM

May 04, 2003
iTunes Music Store Once Again

Some intelligent thoughts on Apple's music store: Matt Rolls a Hoover: ...I had the buyer's remorse moment yesterday. "Wait a minute. This uses DRM. I hate DRM." Then I got over it. Ed Felten has spoken about different copying models and the appropriate response to each. His "Napsterization" model assumes a small number of technically proficient copiers who then mass distribute the copies through a service like Napster. To prevent Napsterization, copy protection has to be perfect, with the side effect of trampling on all sorts of legitimate uses. The "casual-copying" model assumes individual copying by people who are vaguely aware that copying is wrong but do it anyway. To prevent casual copying, copy protection has to mostly just be a reminder that copying is wrong. That means that it can be weak enough to not interfere with legitimate uses. Apple's copy protection is clearly in the second camp. Some people may still have hysterics over it (particularly if it increases readership), but the rest of us are going on with our lives and purchasing music online. There are risks of things going wrong with the DRM, but that strikes me as more a customer service issue than a DRM...

Posted by DeLong at 07:02 AM

September 09, 2002
A Platonic Dialogue on Eldred v. Ashcroft

A Platonic Dialogue on Eldred v. Ashcroft Ignoramus Inquisitivus: I have a question. Why did the Supreme Court grant cert. [that is, agree to hear and decide] in Eldred v. Ashcroft [the case arguing that the most recent copyright extension act was unconstitutional because Article 1, Section 8, Clause 8 of the Constitution gives Congress the power to grant copyrights only for limited times, and only to promote the useful arts--and since the extension act was not intended to promote the useful arts Congress did not have the power to lawfully enact it]? One natural way to decide would be to say, "The Commerce Clause gives ample power for Congress to do whatever it wants as far as economic regulation is concerned. I§8¶8 covers patents and copyrights and should be read in a way consistent with the overall Commerce Clause to give the Congress effective plenary power..." A second way would be to say, "Congress has granted patents and copyrights for limited times, 100 years is a 'limited' time, 1000 years would be a 'limited' time, so what is the problem?" Realisticus: But this is not a Supreme Court that accepts cases simply to affirm the Appeals Court decision, and...

Posted by DeLong at 07:06 PM

September 08, 2002
Cory Doctorow on DRM-in-Practice

The principal serious objection to tight control over content by IP rights holders is made by those who argue that by so doing they destroy most of the utility--and most of the consumer surplus--of the technology. Here Cory Doctorow makes this argument, with details, as applied to Toshiba's new clone of Apple's iPod: Boing Boing: A Directory of Wonderful Things: ...Toshiba's new digital music player shows us more evidence that (consumer electronics) (digital rights management) = a**. The DRM vendor's mantra is, "DRM needs to be invisible, it needs to get out of the way of legitimate activity and only crop up when the user tries to infringe on copyright." A good sentiment, but it's more wishful thinking than design specification, as the new Tosh Mobilphone demonstrates. The Mobilphone is an iPod clone with a 5GB drive and a USB 2.0 interface. The iPod, of course, rules for a number of reasons, but one of the biggies is that by using FireWire to synch MP3s with your computer, the iPod is capable of filling itself up with music in a matter of minutes. USB 2.0 leapfrogs FireWire and delivers even greater speed. So far, so good. But for "security" reasons,...

Posted by DeLong at 02:20 PM

August 29, 2002
Living in Somebody Else's House

David Weinberger said something very reasonable about intellectual property: All contending parties agree, I believe, that (1) the goal is to build a marketplace that encourages innovation and (2) that the way to do that is to let the market reward innovation. Unfortunately, to spread the value of innovation, two things have to happen that are contradictory from the market point of view: First, someone has to have a great idea for which she is rewarded. Second, you want that idea to spread and be built upon as rapidly as possible and requiring that the creator be rewarded slows down the spread. Much butting of heads ensues... To which David Winer replied as if Weinberger had said something really stupid: For crying out loud David, it's super simple. If I build a house I can live in it as long as I want. If I want to rent out rooms I can do that too, as long as I want. The peculiar thing about this David Winer position--this "Mine! I thought of it! Mine! It's my intellectual property forever! All Mine!" position--is that Winer could not hold it had he looked up and around at the intellectual property house he...

Posted by DeLong at 11:11 AM

August 17, 2002
Against the New Enclosure Movement

Larry Lessig calls for resistance to the "new enclosure movement." How long and under what terms intellectual property protection should be provided is a very hard question. But it seems clear to me at least that our current trajectory grossly underestimates the benefits of free distribution. Copyright should not be forever. (Indeed, it's hard to think of a reason why it should be more than fourteen years.) Larry Lessig: ...even at the birth of the 20th century. Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill." It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is...

Posted by DeLong at 08:57 AM

August 15, 2002
Spiderman: Intellectual Property

Another one for the clipping file... Lawyers for Spider-Man Win a Fight Over Times Square August 13, 2002 Lawyers for Spider-Man Win a Fight Over Times Square By ALLISON FASS t looks as if Spider-Man has spun himself out of another sticky situation. A federal district judge has tersely dismissed a lawsuit against Sony, maker of the hit movie "Spider-Man," in which plaintiffs had contended that the film and its television commercials violated trademarks by digitally altering billboards for scenes set in Times Square. In a ruling issued late last month, Judge Richard Owen of the Southern District of New York wrote that it was questionable whether the digitally altered depictions of the billboards even warranted a trademark claim. Moreover, Judge Owen stated that even if there were trademark infringements, creating false or confusing messages for consumers, the movie scene would still be protected by First Amendment rights to free expression. The lawsuit was filed in April by owners of several Times Square buildings and outdoor advertising companies against the Sony Corporation of America and its various film units. The suit said Sony had violated trademark laws by making changes that included superimposing a USA Today ad on a Times...

Posted by DeLong at 09:27 AM

August 13, 2002
Eldred v. Ashcroft: Could Congress Make Copyright Perpetual and Absolute If It Wanted to?

Could the Congress make copyright perpetual and absolute if it wanted to? Does the fact that intellectual property rights are established not by the common law but by the U.S. Constitution for the express purpose of promoting the arts and sciences have any bite today? The Supreme Court is actually going to decide this question next winter... From my perspective, the most interesting thing is the seventeen economists who have lined up in support of the plaintiffs--who argue that Congress's power to establish intellectual property rights is limited. These seventeen are: George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser. I can imagine no other issue on which you could get those seventeen to agree. Eldred v. Ashcroft This site collects material related to the constitutional challenge of the Sonny Bono Copyright Term Extension Act, which extended by 20 years both existing copyrights and future copyrights. Eric Eldred is the lead plaintiff on the case (for other plaintiffs, click here),...

Posted by DeLong at 07:19 PM

July 06, 2002
The Ten Copyright Crimes of Tomorrow

Ernest Miller of lawmeme reacts to Turner CEO Jamie Keller's declaration that, among other things, your right to go to the bathroom while watching TV is not unlimited: "I guess there's a certain amount of tolerance for going to the bathroom..." LawMeme: Legal Bricolage for a Technological Age - Top Ten New Copyright Crimes Jamie Kellner, chairman and CEO of Turner Broadcasting... said some very interesting things, including characterizing those who skip television commercials as thieves: "[Ad skips are] theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming." To help develop Mr. Kellner's unfortunately common (at least in Hollywood) view of copyright, LawMeme offers the top ten new copyright crimes: 10. Watching PBS without making a donation. You know who you are, you cheap ... 9. Changing radio stations in the car when a commercial comes on. Future radios will prevent listeners from changing channels when a commercial comes on. The RIAA has not yet taken a position on whether it is permissible to switch channels...

Posted by DeLong at 08:53 AM