Donna Wentworth
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
Matt Haughey
Erik J. Heels
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
Joi Ito
Jon Johansen
JD Lasica
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Ben Edelman
Ernie the Attorney
How Appealing
Industry Standard
IP Democracy
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
MIT Tech Review
Paper Chase
Frank Paynter
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


August 16, 2014

August 11, 2014

Having (Mostly) Failed with Authors, Amazon Makes a Pitch for the Readers

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Posted by Alan Wexelblat

Last week a group of over 900 writers took out a full-page ad in the Times taking Amazon to task for its tactics. The letter was signed by some big names, including John Grisham and Stephen King, and it asks readers to write to Amazon CEO Jeff Bezos telling him to "stop using writers as hostages in its negotiations" with Hachette.

Amazon's previous plan had been to explain to authors just how much more money they could make by doing things Amazon's way and presumably Amazon wasn't pleased when their self-centered logic got shot to pieces. We presume this because suddenly there's a Web site, that is asking people to write to Hachette's CEO.

This site is pretty transparently an Amazon shill front, as anyone with a little know-how can find that Amazon has had the domain parked for some time and just decided to activate it. For reference, see "Astroturfing".

As John Scalzi points out, this is not classic astroturfing since Amazon put its name on the letter. This leads him to wonder why Amazon bothered to use the indirect domain rather than just posting the letter on its own Web site. That's a very good question, I think.

The rest of Scalzi's entry dissects Amazon't continuing use of bad/biased math, not to mention hyperbole in its arguments. He argues that this is another ham-fisted move by Amazon which has been remarkably inept at the PR side of this dispute. They may be trying to fight too many battles at once, as you can see from the news headlines: "Dispute Erupts Between Amazon and Disney" for example.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

August 7, 2014

August 5, 2014

Uncle Amazon Knows What's Best for You (and Itself)

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Posted by Alan Wexelblat

It's been a while since I peeked in on the ongoing slog of Amazon versus Hachette. A story from Jillian D'Onfro appeared last week, explaining what Amazon says it's up to in this fight.

Amazon appears to be making a numerically based claim, in two forms. First, it is arguing for a 35 (author) / 35 (publisher) / 30 (Amazon) revenue split. It points out that 30% is what Apple and its co-conspirators wanted Amazon to take. Second, it argues that its data show a price point of USD 9.99 is better for an e-book in that it leads to more copies being sold. The number of additional copies sold is high enough to more than make up for the revenue lost on each individual sale.

This is pretty transparently an effort to recruit authors to Amazon's side. Big-house authors generally get around 20 or 25% on e-book sales and Amazon would much rather have authors complaining to Hachette about "why am I not getting 35%" than complaining to readers that Amazon is making it hard to get the authors' books.

It's also pretty transparently an Amazon-centric view of the world, to which I think John Scalzi has a very solid answer in his "Whatever" blog entry:

Amazon’s assumptions don’t include, for example, that publishers and authors might have a legitimate reason for not wanting the gulf between eBook and physical hardcover pricing to be so large that brick and mortar retailers suffer, narrowing the number of venues into which books can sell. Killing off Amazon’s competitors is good for Amazon; there’s rather less of an argument that it’s good for anyone else.
Furthermore, their math about selling more copies might be true for Amazon itself, but there's no evidence that it holds up for any other retailer. Making Amazon prices so cheap that other outlets can't afford to match them is, again, good for Amazon but not necessarily good for anyone else, including those authors Amazon is trying so hard to influence.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

August 1, 2014

July 30, 2014

Muddying the Natural (Patent) Waters

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Posted by Alan Wexelblat

In the past couple of years (see for example the Prometheus decision). The Supreme Court has issued a series of rulings that attempted to clarify what is and is not patentable. Unfortunately, the result has been the exact opposite, with court decisions creating chaos and confusion over what is the proper subject matter of patent applications.

The USPTO has issued proposed rules that appear not only to take the SCOTUS decisions at face value, but expand them to a great extent by declaring vast tracts of what had previously been patentable as out of bounds. An article on earlier this month decries the likely outcomes.

The piece estimates that "almost half the drugs approved in the United States from 1981 to 2010 would have been rejected under these guidelines". While I am still concerned about overpriced medicines and their consequences, it's still likely that in the absence of some form of protection these medicines would not have been developed. It's possible that the Patent Office will implement less draconian interpretations, but even so I cannot see an easy way out of this thicket.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

July 25, 2014

July 22, 2014

July 21, 2014

Lest You Had Any Doubts, the ALA is on the Right Side Again

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Posted by Alan Wexelblat

I got an update from American Library Association (ALA) letting me know that they had joined with other higher education and library organization to file a joint comment to the FCC in support of net neutrality.

This should serve to remind everyone that while the Internet is perhaps the most amazing commercial platform yet invented, it's also an information access mechanism for schools, for libraries, for communities, and for the public. As such it needs not to have "paid prioritization" and it needs rules that allow us to choose what we get, not the cable companies. The Internet has a public, an educational, and democratic imperatives that are every bit as important as its commercial imperative and don't you forget it.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

July 18, 2014

Deadly Effects of Unaffordable Medicines (TPP)

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Posted by Alan Wexelblat

On the eve of the next round of secret talks on the festering pushole that is the TPP - the trade treaty so secret it can only be seen the by the multinational corporations that are writing it - MSF is once again attempting to encourage some variant of sanity.

As I've written before, MSF/Doctors Without Borders is opposed to the TPP provisions that promote patent protection over human protection. In their latest missive (linked above) the organization points out that "harmful new rules" in TPP will push prices higher for life-saving medicines, and of course this will hit the poorest countries the hardest. Additionally, TPP continues to promote the regime of secret, unaccountable courts that would set themselves above the national courts of the signatory nations. As MSF notes:

The Canadian government has been sued by Eli Lilly to the tune of $500 million, based on similar provisions in NAFTA, because the corporation objects to a Canadian Supreme Court ruling rejecting the patent for two of its blockbuster drugs. As a result, Canadian law could be overturned by a ruling made in a secret, private arbitration proceeding.

As before I feel I should note that I am a long-time donor to MSF, but have no other affiliation with the organization.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

July 15, 2014

Planet Money on the Case Against Patents

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Posted by Alan Wexelblat

NPR's Planet Money podcast did a segment on the case against patents. It's mostly an exploration of how one would cope economically in a world without protection for certain kinds of IP. Sadly, they continue the mini-fiction that Tesla is "giving away" its patents.

The show is largely based on a paper published by two economists, Michele Boldrin and David Levine in which they argue against patents from an economists perspective. The very first sentence of the paper states baldly that "there is no empirical evidence that patents serve to increase innovation and productivity." In fact, they argue, the opposite is happening. Innovation and productivity in their view happen most from competition and being the first to be able to get something to market (first mover advantage).

As with many grand theories in economics, the proposed changes would include losers and risks. The losers are individuals and small enterprises who now make money from licensing. In their view such people should just go work for big companies that would pay them to do the same innovative work.

The risks come from things like medicine or nuclear power where the idea of patent protection contributes to companies making billion-dollar investments. Boldrin and Levine argue that it would be more efficient for the government to create a system of incentives whereby multiple companies could compete for the work in return for paybacks that would cover their investment. Given how massively inefficient government contracting can be today I'm highly dubious this would increase efficiency in the IP space.

Their "modest proposal" however, seemed like a good idea, which was just to reduce the terms of patents. Presently patent protection is 20 years, so turn that down to 18 and see if it makes any difference. If you get more productivity with less patent protection you could shorten the term still farther. Eventually either you'd find that less patent protection was not increasing innovation or you'd find that you'd reduced protection to zero while increasing innovation in measurable steps along the way.

Comments (0) + TrackBacks (0) | Category: Counterpoint

FMC + Musicians vs FCC on Net Neutrality

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Posted by Alan Wexelblat

Our friends at the Future of Music Coalition rounded up a star list of songwriters, performers, and independent artists try and get the FCC to back off its plans to wreck net neutrality. Kevin Erickson was kind enough to send me a link to the collected artists' comments, which you can read online at the FMC site.

My favorite pull quote from the comment filing:

We music people know payola when we see it. And what we see in Chairman Wheeler’s proposal doesn't give us any confidence that we won’t end up with an Internet where pay-by-play rules the day. We've heard this song before, and we’re frankly pretty tired of it.

Thousands of us have already told the FCC that losing an open Internet would be disastrous to the music community, and we suppose there's no harm in telling you again. But this time, we really hope you'll listen. We may not be telecom lawyers, but we get this issue pretty clearly. You have the legal authority to prevent discrimination and paid prioritization online. You only need to exercise it.

It's been a long time since I wrote about how payola came to the digital music landscape. Doesn't mean the problem has gone away, though.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

July 8, 2014

Be the Potato Salad

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Posted by Alan Wexelblat

Author Ferret Steinmetz offers this pithy advice on how people can run appealing campaigns for funding. Although it's somewhat facetious, it's based on a real-world example of a guy who managed to create a Kickstarter for potato salad. He started with a goal of USD 10 and at this writing he's broken 41,000 with over three weeks to go.

The thing he's offering is, nominally, is himself making potato salad. Yes, really. He's raising a few bucks to make potato salad. Why, then is he getting tens of thousands? Ferret's answer is, basically, "entertainment." The potato salad concept is silly and as the campaign has grown, more silly and goofy things have been added, like "a bite of the potato salad". Clearly that's not something you'd normally pay three bucks for, but so far over 600 people have thought it was funny enough to do that.

And there's the trick: make your campaign about "how you make the donator feel" and you can be more successful than trying a serious approach, especially if what you're pitching is something potentially desperate or depressing. By making this potato salad silliness feel like fun, it became something people wanted to feel involved with.

The lesson about Kickstarter or Indiegogo or any donation drive is that you get what you give
Words of wisdom for the new media age.

Comments (0) + TrackBacks (0) | Category: Interesting People

July 7, 2014

These Businesses and Corporations are Not Your Friends

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Posted by Alan Wexelblat

So opines John Scalzi, as he ticks off which of the parties in the Amazon/Hachette dispute he is in business with. Scalzi's point is that this is a situation in which some very large corporations are maneuvering to increase their profits. Nobody, no matter how good-hearted they are, is in this business to run a charity.

Therefore, he argues, anyone doing business with them needs to treat it as a business arrangement. If you are an author and Amazon is doing well by you, then that's great - continue doing business with them. If you are a reader and are unhappy that Amazon is making it hard to get certain books then take your business elsewhere. But whatever you do, treat it as a business proposition, not a personal/emotional proposition.

Comments (0) + TrackBacks (0) | Category: Counterpoint

June 25, 2014

Aereo Loses

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Posted by Alan Wexelblat

In a 6-3 decision, the Supreme Court has acted to close a loophole in copyright law. We've discussed in the past how Aero narrowly tailored its business model and architecture to fit in this loophole; this result likely means the end of their business.

I'm sure there will be plenty of analyses flowing, and lots of people commenting on the implications of this decision. It seems like a small area of the law, but it's possible that this ruling will be used against a wide variety of nascent businesses, despite Breyer's apparent intention that the decision be read narrowly. The decision seems to go to great lengths to say that Aereo is (like) a cable company and thus should be subject to the copyright restrictions. Breyer specifically calls out a position taken by the US Solicitor General

that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.”
That's a good theory; let's see how it shakes out in practice. My cynical side thinks the Cartel will still see this decision as a green light to go after cloud storage companies in general.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 21, 2014

When Politics and Copyright Collide

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Posted by Alan Wexelblat

It's getting on toward silly... err, Presidential campaign season, and we'll likely see more silliness. Today's comes from Politico, which reports on a controversy between the Washington Free Beacon and The University of Arkansas. Significantly, the U of Ark here holds the Clinton archives, and the Beacon has been using those archives as source material for a series of stories on Hillary Clinton.

The archives have revoked the Beacon's access to the archive, on the grounds that publications in the Beacon used audio recordings from the archives without permission. In a written statement, the Archive says:

The University, however, does not tolerate the blatant and willful disregard of its intellectual property rights and policies.
This is a tricky matter, from a policy standpoint. Libraries often maintain various controls over different collections as well as enforcing copyrights held by authors of material in the library.

However, when those rights restrictions impede conversation about a controversial public figure we start adding in questions of what's in the public interest. This is the core of the Beacon's response to the Archive - the claim that their investigative reporting serves a general public interest. Which is, we should all remember, the reason copyright was invented.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

June 20, 2014

June 19, 2014

CAFC Wins, Alice Loses

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Posted by Alan Wexelblat

Since we've been ragging on the CAFC lately for its losses on appeal, it's worth noting that this was a unanimous decision upholding the Federal Circuit.

The case, conventionally known as Alice Corp v CLS Bank dealt with challenges to patents held by Alice Corporation. I've read through the decision once and I expect better analyses will enlighten things in days to come, but what I see is that the Supreme Court is still swimming about in murky §101 waters. In particular, SCOTUS agreed with the CAFC that Alice Corp's patents were invalid because "...they are directed to an abstract idea." As such, they're not proper subject matter for a patent.

This follow the line of reasoning that the two Courts have established in cases like Bilski and Myriad, but as we noted last time around, it's not clear to me that this line of reasoning is actually consonant with how sections 101 and 103 try to define things.

Thomas's opinion is pretty short and if you don't agree with the previous line of SCOTUS reasoning then you're not going to like this opinion either because it goes to great pains to trace how those past decisions require the present conclusion. Thomas reviews the reasoning in Mayo, and relies on that decision and Benson to argue that the patent claims construction "merely require generic computer implementation" and that this doesn't make the underlying ideas eligible for patent protection.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

June 18, 2014

USPTO Cancels "Redskins" Trademarks

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Posted by Alan Wexelblat

I don't talk a lot about trademarks, in part because I don't know much about their legal foundations and caselaw. I do know that the use of the often-derogatory term "redskin" has caused tremendous controversy, to the point where it has its own Wikipedia page now. Senator Harry Reid also garnered some publicity by turning down a game invite until the team changed its name; Reid is Majority Leader in Washington right now, but he represents a state with a significant Native American population.

I was not aware that five Native American individuals had brought a case before the USPTO requesting that the mark be cancelled because it disparages Native Americans. This morning, the Office issued its ruling, finding that a series of marks must be cancelled because they were derogatory terms at the time of issue.

As the NY Times points out, the team has been defended in this case by the NFL, and that there is likely to be an appeal. Even if the PTO decision is sustained on appeal there's nothing that can be done from a trademark perspective to stop the team using the name and logos. All that would happen is they would lose the protection they now have against other people using the marks. Unfortunately, that could lead to more merchandise and other material appearing; real change will likely only be possible when the League is convinced to stop defending the team owner's position.

Comments (0) + TrackBacks (0) | Category: IP Use

June 17, 2014

YouTube's a Monopsony, In Case You Hadn't Noticed

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Posted by Alan Wexelblat

My guess is that if you're a fan of indie - or even popular but non-major-label artists, from Trent Reznor to Adele - you're about to notice. Because YouTube has just announced that it's going to be taking down content from any label that doesn't pay up to be part of its "Music Pass" program.

The idea is simple: you (the consumer) pay to get ad-free videos from labels who have also paid to be on the service. YouTube profits, everyone else loses. As a business model, it beats the hell out of thin gruel ad-supported, which is what the Google service has now. They want to be competing with Spotify et al, and they have the billions of yearly viewers to do it. All they need is providers (major labels) to pony up, and people to go along meekly. Because that's what you can do when you've gathered up enough eyeballs and browser clicks.

As with Amazon's exercise of its monopsony power, there's little that can be done about this except pay up, or pray for intervention from regulators. Rumors abound that the terms YouTube is offering amount to an even worse deal than the "pennies" that got musicians complaining about digital streaming services years ago. That's irony right there, but not particularly funny irony.

YouTube is pretty clearly aware of how much power it holds - witness how it forced G+ on everyone who used to comment on videos. Even today if you search "youtube comments" the top hits are "Youtube comments not working" or "Youtube comments not loading" and the like. But they just sat back calmly and weathered the storm. Now everyone thinks this is just fine and people still post their videos there. I expect exactly the same thing to happen with music videos; when you have little or no choice, complaining about it doesn't broaden your choices.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

June 16, 2014

You Keep Using That Phrase

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Posted by Alan Wexelblat

While I'm on the topic of linguistics I thought I'd note that Tesla Motors' announcement of some form of openness of its patent portfolio is raising some eyebrows. Specifically, it's the part where Elon Musk says:

Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.

If Tesla was really "giving away" its patents, why the "in good faith" qualifier? In the post-announcement Q&A the qualification has been clarified to mean that other companies should be willing to share some of their patents with Tesla in exchange for use of Tesla's patents. Normally we call that "cross-licensing".

Also, a company using Tesla's patents can’t file lawsuits against the electric-car company for patent infringement. Pretty reasonable - that's a standard clause in a patent cross-licensing deal.

“We would not want someone to mimic our car in such a way to deceive customers into whether it is a Tesla,”
which sounds to me like he's talking about design patents or trademark infringements.

Don't get me wrong - I think Musk's intentions are good and this move is going in the right direction, even if it's largely symbolic. But I don't think it's nearly the big deal it's been hyped to be, and it's definitely not a giveaway.

Comments (1) + TrackBacks (0) | Category: IP Use

June 15, 2014

You Keep Using That Word

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Posted by Alan Wexelblat

I do not think it means what you think it means. Nice post this week from Gabriel J. Michael this week at the To Promote The Progress? blog. In it, Michael demonstrates that he knows more about US Copyright law than the US Chamber of Commerce. This is not surprising, but kind of disappointing.

The CoC posted that "A fair use of a work is an infringement" which is directly contradicted at 17 U.S.C. § 107, which states that a fair use is not an infringement.

To be fair, the distinction is somewhat subtle, because it turns on the notion of how fair use is invoked, as a defense against a charge of infringement. To be charged with a crime is to require a defense against that crime; if your defense is accepted then by definition you did not commit that crime. So it is with fair use - it acts to defend users of material against infringement charges and if their fair use defense is sustained, then they did not commit an infringement.

Subtleties aside, though, you'd expect an organization like the Chamber, which is purporting to lecture people on "5 Copyright Terms We Need to Stop Using Incorrectly", to get its basic facts correct.

P. S. Dear CoC: that should be "Five Copyright Terms..." just in case you take the chance to fix your erroneous posting.

Comments (0) + TrackBacks (0) | Category: IP Abuse

June 14, 2014

Rader Resigns, But Don't Cry

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Posted by Alan Wexelblat

Judge Rader, now infamous in the IP world for his indiscretions while on the CAFC bench announced he's going to be resigning from the Court as of the end of this month. Flip a coin to decide if he'll become a lobbyist or be recruited to a boutique legal firm arguing cases in front of the CAFC. Either way, he'll get a substantial raise.

Comments (0) + TrackBacks (0) | Category: Interesting People

June 9, 2014

One "Digital Native"s View on Getting Paid

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Posted by Alan Wexelblat

Another in the occastional series of "Here's how I made money in the new publishing ecosystem" comes from Laurie Penny. Still only age 26, she's transitioned from blogging to having her byline on traditional name publications including The Guardian. In a brief Q&A promo for a talk she's giving next month on the topic Penny has a couple pieces of practical advice.

The first one that appealed to me is for aspiring writers to practice pitching, particularly pitching ideas that stretch the author's capabilities. It's easy to write what you know and find yourself repeating what's already out there; pitching slightly newer, different, or even riskier ideas may catch publishers' attentions. She also advises not trying to monetize one's blogging, but rather to use the for-free writing as resume, and as a way to garner attention on social media.

Comments (0) + TrackBacks (0) | Category: Culture

June 7, 2014

Interesting Views on Two Ongoing Stories

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Posted by Alan Wexelblat

There are two stories grinding their way along, most of the action being out of sight. The first being Oracle v Google arguing over the APIs for the Java language, and the second being Amazon and Hachette arguing over (probably e)book pricing. I haven't said anything about either case because there wasn't a lot going on that wasn't repetition of the basic points. I found a couple pieces that did raise good points, so let me cover them.

First, on Oracle. The recent decision by the dysfunctional CAFC is just wrong. Not only does it show a complete lack of understanding of programming, programming languages, and how programmed things connect up (APIs mostly), it seems like they're going out of their way to invent new grounds on which to make decisions. Last month's piece by Mike Masnick on Techdirt goes into great detail on all the wrongheadedness here.

Masnick notes that the case started out as a patent issue (which is how it ended up at the CAFC) but they somehow morphed it into a copyright decision. To do that they had to reverse completely the original finding that the API is not the software. I'll admit this isn't readily apparent to people who write code and like other writers I have to reach for analogies. Part of that is because software isn't like most things in the world - software on its own doesn't do anything, but it controls anything that can be built to do any task we can manage within the limits of physics. An API is a way of giving instructions, not the instructions themselves. You might argue that there's a patent issue here, and I promise not to re-open the "is software patentable" debate, but seriously, guys, it's not copyright(able).

Masnick's piece makes the important point that many other news outlets have not - this is far from the end of the line. Google can, and should, appeal this disaster of a ruling either to the en banc CAFC or straight to the Supreme Court, which some argue is on a roll of smacking down CAFC overrreach. He rounds up some good opinion pieces from folk like Tim Lee and the EFF on why this decision is a roiling disaster, if it's allowed to stand.

Long-time readers will know that I'm not a huge fan of Amazon and particularly its strong-arm business practices. I've also been clear that I think the government's idea of how to settle the price-fixing suit was a big fat gift to Amazon.

I was interested to read Mike Shatzkin's blog piece on the current tussle between Amazon and Hachette because he claims there's a lot going on that isn't being talked about. Right now it appears that Amazon is trying to force Hachette into accepting terms the publisher doesn't like. As part of that tactic, Amazon has hidden Hachette titles in search results and suggestions, driving down their visibility. If you search for a book they've published directly on Amazon you'll probably find it, but good luck seeing it any other way.

Hachette for its part has joined forces with other retailers such as Walmart and B&N to discount and promote the things that Amazon is hiding. However, given that Amazon is a monopsony, there's not a lot that a small publisher like Hachette can do. In his blog piece Shatzkin lays this out in step-by-step detail and points out that the avalanche has begun and it is too late for the pebbles to vote.1

Shatzkin seems to think that the only thing that can keep Amazon from continuing to use its dominant position to the detriment of everyone else is outside (read "government") intervention. I think that's a nice fantasy but given the current Administration it's, well, fantasy. Honestly, I don't have any better ideas. At best I can see Amazon's behavior driving further consolidation in the publishing marketplace until there are only 2-3 publishers to deal with, who may have enough leverage and deep enough pockets to stand up to Amazon.

1 Yes, I am a giant SF nerd. You're all surprised I'm sure.

Comments (0) + TrackBacks (0) | Category: Counterpoint

June 4, 2014

June 3, 2014

EFF Making Mountains out of (CAFC) Molehills

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Posted by Alan Wexelblat

Seems to be CAFC month around here. One more viewpoint in the debate from Jason Rantanen at the PatentlyO blog: the CAFC's record isn't that bad.

In particular, Rantanen takes issue with how the EFF appears to be keeping score. By noting that the CAFC has lost decisions unanimously, Vera Ranieri of the EFF claims that the CAFC is now "0-45". Well, yes, but. Rantanen points out that SCOTUS denies more cert petitions than it grants, and frankly it's rare for SCOTUS to take a petition if it's just going to uphold the decision. Overall, he calculates the SCOTUS reversal rate at 72%. I suspect that in this respect the CAFC is better than the 6th or 9th Circuits, both of which have a long history of having their decisions overturned.

And even if we restrict ourselves to petitions that were granted, Rantanen further notes that:

out of the 13 patent cases arising from the Federal Circuit since Bilski v. Kappos, the Supreme Court has affirmed the outcome in whole or part 7 times
That's not a bad rate, really, so maybe the EFF should tone it down a notch.

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If the CAFC Isn't Listening, Maybe Other Judges Are

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Posted by Alan Wexelblat

When the Supreme Court overturned the CAFC in a case known as Octane Fitness earlier this year, I noted that SCOTUS was telling the CAFC that the Federal Circuit had the wrong idea about when attorney fees could be awarded in baseless patent suits. Now, according to Joe Mullin for Ars, we have our first ruling1 putting the Octane principle into action.

The case involved another 'fitness' company - information fitness in this case. FindTheBest is a start-up that offers to help people match up offers with needs. According to Lumen View, FTB was in violation of a patent Lumen held and it sued in what has become a typical troll pattern: the suit was held back if only FTB would settle; Lumen filed a large number of similar suits all at once, etc. Most tellingly, according to the judge's decision in this case Lumen didn't do "any reasonable pre-suit investigation."

That led the judge to determine that Lumen's case fit the criteria laid out in Octane and Judge Cote has found this case to be an exceptional one that justifies shifting FTB's legal fees to Lumen. The exact amount of this shifting is still to be deteremined, as FTB will have to show the judge what it cost to defend this case.

It will be interesting to see what Lumen's response is. They may just chalk one up in the loss column and move on, assuming that other defendants will be more willing to settle. A district judge's ruling isn't precedential in other jurisdictions, but it should be helpful to other defendants. If there's a District split then that gives Lumen stronger grounds for appeal later on; on the other hand, the risks of multiple judges following Judge Cote's reasoning might give them pause.

1. According to Mike Masnick at Techdirt, "NewEgg was able to pursue fees against a troll" so this might technically not be the first.

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June 2, 2014

More CAFC Volleyball

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Posted by Alan Wexelblat

The Supreme Court unanimously overturned the CAFC twice (again) this week, continuing to highlight how dysfunctional this court has become. The cases were Limelight v Akamai and Nautilus v Biosig.

You can read about the details of the cases if you like, but the key point is that the CAFC and SCOTUS continue to disagree about major elements of, and interpretations of precedents for, patent law. This runs directly counter to the purpose for which the Federal Circuit was created, which is bad news for litigants and application writers. However, the specifics of these two cases probably make no difference because they are just part of an ongoing "pissing match" as Greg Aharonian calls it between the two courts.

Aharonian, in his emailed PATNEWS newsletter, points out that in theory SCOTUS can direct the CAFC to decide cases according to its decisions but in practice there's no enforcement mechanism. This leaves the CAFC judges free to ignore Supreme Court mandates and suffer no consequences as a result. The losers, again, are the people who have to litigate these things because when CAFC renders a decision that contradicts SCOTUS instructions it's still up to the litigants to appeal back to the Supreme Court to correct the CAFC's error.

I'm not a lawyer and I have no idea what mechanisms exist that could help with this situation. I know that we have problems with bad patents and people abusing the patents that are issued, but even once those problems get fixed we will need a unified judicial voice to interpret patent laws in light of new scientific and technological advances as well as new social understandings. This? This is a disaster.

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June 1, 2014

What Do "Real" Authors Do?

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Posted by Alan Wexelblat

A study in contrasts and similarities, related to the previous post about creator experiences. Author John Sundman noted that his publishing adventure from Creative Commons to traditional publishing got an interesting summary from a blogger.

Sundman's publishing journey is unusual, probably unique. He began with a Creative Commons-licensed work (Acts of the Apostles) that got a positive review on /, and saw a spike in popularity on Amazon. The novel was then sold to a small indie publishing house that was set to produce a revised version but was instead bought out by a bigger house. The rights then reverted to Sundman who wanted to produce a revised version of the book, incorporating improvements. The result is called Biodigital and it's about 60/40 reworked material/new material.

This sort of thing is (or used to be) quite common in the music space. Bands would release an EP with 4-5 songs and then later a full-length LP or CD containing those same songs - perhaps with a more professional production polish - and some new material. Record companies are set up to do this. Book publishers? Not so much. Sometimes you get a novel that's been made out of a short story (e.g. Ender's game) but nobody I know of has taken a previously published novel and remixed it themselves.

Sundman's solution was to use, which I first heard about back in 2012. Under a new arrangement with, Biodigital appears for sale but for a limited time. Around mid-2016 the book becomes free to remix for anyone else.

So, that's one point of view. Or, you could just pay the goddamn writer what they're worth. In this clip from an upcoming documentary on Harlan Ellison, the author rants about the "assholes" and "amateurs" who agree to work for free. Ellison wants to be paid for his work - in this case for an interview that Warner Brothers wanted to use on a DVD.

A real author, in this case Ellison, wants to be paid for their work particularly when that work is going to be used in a for-sale enterprise by a highly profitable mega-corporation such as WB. Ellison's rant is necessarily simplistic, but he has a basic point: the explosion of free content is making it difficult for people who want to make a living. The difficulty - again, see Erin Biba's rant - is that even people who are making money at these sorts of businesses seem to want contributions to come in for free. We, the public, give our free labor and content to YouTube and Facebook which use that content to make millions. It's been a couple years since the Ph.D. elite began to revolt against the publishers who make millions off their free labor but that business hasn't changed.

We're looking at a very wide gulf here: on the one hand we have individuals like Sundman and Fleishman who are on their own trying to figure out approximately everything and having a hard time getting actual income. On the other hand we have corporate entities that appear still to be quite profitable yet take advantage of individuals. I have no idea how to bridge this gap.

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May 29, 2014

A Contrast in Creator Stories

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Posted by Alan Wexelblat

Two articles on Medium illustrate the differences in how 21st-century business models are affecting different people.

The first is Erin Biba's short, sharp farewell to Medium. Despite being one of the better-paid writers on the site, she's only getting about 2.5 cents per click on her story. That's not enough even to think about living on, and it's well below the living wage (she doesn't specify how much) that she's getting from traditional media organizations.

The core of her rant is that new media organizations don't value quality, only clicks. This leads to a profusion of listicles, recycled mindless content, and other things designed to drive up pageviews regardless of the content of those pages. In other words, new media are getting what they (don't) pay for.

The other story is Glenn Fleishman's discussion of his Kickstarter experience. Fleishman ran a successful campaign, for the most part, based on lessons learned from other people who have done campaigns that worked. He delves into details, such as how the funding curve works and how much it really costs to ship things overseas. Unlike Biba, Fleishman seems pretty positive.

What's missing from Fleishman's piece is how this relates to a living wage. He calculates his profit at $3000 on over $53,000 base income. That's not even going to pay rent for the time the campaign ran, let alone any realistic calculation of expenses. Yes, the purpose of the campaign was, nominally, fulfilled. But what's the point of artists making these complex and time-consuming campaigns when they can't eat? I talked about this last October, when I backed the 99% Invisible Kickstarter and I feel like if Kickstarter is going to run aground this may be its weak point: however many dollars it can pour into product, we still don't have a reasonable and reliable way to compensate the creators whose products we want.

(h/t Boingboing where I first saw these stories linked)

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May 27, 2014

Grinding Copyright Wars Grind on

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Posted by Alan Wexelblat

As David Kravets reports for Ars, ISPs who are now part of the Cartel's enforcement arm have sent over 1.3 million infringment notices to customers in the last year.

Is it working? Depends on what you think "working" looks like. If you're the RIAA you spin this as "cautiously optimistic". If you're capable of looking at a calendar you might flip back to the dark ages of 2001 and note that it's been 13 years since Napster was shuttered and the Cartel is still treating its customers like the enemy. You might also note that trench warfare is really dull and unproductive and try to find more interesting things to blog about. Here, have a funny picture of a baby yawning.

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May 26, 2014

Is it Time to Abolish the CAFC?

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Posted by Alan Wexelblat

That's the question raised in a Gigaom piece this week from Jeff John Roberts.

The proximate cause is that the Chief Justice of the CAFC is stepping down from the Chief spot and the Court has had to re-issue two opinions in which soon-to-be-ex Chief Judge Randall Rader was involved. Rader recused himself from those cases, but not before he had been involved in the decisions (oops!). To make matters worse, the reasons for recusal involved ethical improprieties on Rader's part that call into question his fitness to serve as a judge at all. Rader effectively endorsed a lawyer, in a manner similar to an author giving a blurb for a novel they enjoyed.

Judges at all levels are supposed to be as impartial as humanly possible. Giving an endorsement to a lawyer - let alone one who might appear before your bar - is just not done. Yes, we know that judges are mostly former lawyers, and nobody expects them suddenly to drop their private friendships with other lawyers. But there needs to be at least some professional distance.

What Roberts (and see also Mike Masnick's analysis on Techdirt) argues is that this is just one more nail in the coffin of what has become a dysfunctional and often disastrous experiment.

The CAFC was created in 1982 in order to merge two courts that were hearing and often competing in rulings over patents. The theory was that there should be one highest court for patent cases, which would lead to more uniformity and that this unified court would be able to delve into the more technical matters that patents often require. Unfortunately, the CAFC seems to have spun more and more out of control,

They can't seem to agree on basics of patent law, it has been assigning itself additional powers of patent review and in general seems to be living up to the "rogue court" label that Timothy B Lee pasted on it back in 2012.

Unfortunately, while I agree with the esteemed trio of Lee, Roberts & Masnick, I don't see a better option. If we abolish the CAFC then lots more patent cases are going to end up at the Supreme Court. Given what a mess they make of patent law (and the underlying science) on a regular basis I am not encouraged by this prospect. The CAFC seems to be yet another example of how regulatory capture works in Washington, and we are all much worse off as a result.

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