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Back in January, the EU Competition Commission staged raids on at least nine major drug companies, seeking evidence on restrictive business practices, and then another round of "surprise inspections" earlier this week. There will also be public hearings today.
The report so far is preliminary, with a final draft due in mid-09, with language like this:
a variety of tactics are used to delay or block the sale of generic drugs, including filing large numbers of patents for the same drug, suing generic companies, settling patent disputes and intervening in national procedures for generic-drug approvals.
It's not immediately clear from the press reports whether anyone is going to be accused of outright illegality, and of course the drug companies are responding by claiming that EU regulation is blocking innovation and anyway lots of people get generics now so what's all the fuss.
I was curious about this because, so far as I know, there are no grounds in US law for rejecting patents on ethical or moral bases. Certainly US defense contractors get patents on all kinds of horrific killing technologies and I believe there was at least one patent on the electric chair.
the EPO already has a ban in place on the patenting of inventions “whose commercial exploitation would be contrary to public order or morality”, and specifically prohibits patents on uses of human embryos “for industrial or commercial purposes”.
Grogan also quotes David Earp, the chief counsel for Geron, a US-based pharma research firm, as claiming that the current decision is more narrowly drawn than the quote above would suggest, and expressing confidence that Geron's other human embryonic stem cell work can be protected in Europe.
In this blog I spend most of my time on the production side of the issues - talking about business models, distribution, artist compensation, and so on. Once in a while it's important to remember that there are also complimentary rights - your right to own materials produced by creators, for private viewing. Making or buying legal copies of creative works is an essential part of the process - all the author rights in the world don't mean jack if nobody can buy what's created. Sometimes we need to remember those rights because they get attacked.
The problem seems to center around images that appear to be young children. It's pretty hard to determine the age of a character in a fiction, unless the author explicitly states it. So the prosecution is based purely on the appearance of an image. Subjective judgement, anyone?
As the parent of two young children, I'm a bit sensitive to the actual use of real children in visually explicit material. I don't think children can consent in any meaningful way, and I don't think they understand the adult implications of explicit or sexual acts. Real people - children and adults - need protection against unscrupulous content producers of any sort who would take advantage of or coerce them.
But that's not what we're talking about here. We're talking about made-up images of purely fictional people. I think it's important to defend the right to own, and the right to view, legally obtained copies of material against overreaching laws.
Bloggers attributed this 'oversight' on the RIAA's part to the presence at Harvard of the Berkman Center for Internet & Society, an organization noted for its outspoken opposition to the Cartel's jihad1. Harvard also hosts a world-class law school, whose students have taken on a number of high profile causes on a pro bono basis over the decades. If your strategy is to deploy enough high-paid legal muscle that your opponents are intimidated into instant surrender then it makes sense to avoid a place with resources like these.
RIAA v. Joel Tenenbaum may become the Cartel's English Channel. As you'd expect, Nesson isn't just trying to defend one student. He's attacking the foundations of the RIAA's entire campaign, as well as the constitutionality of the laws on which it is based. He's filed counterclaims, and is seeking to have the RIAA itself named as a defendant.
Techdirt's write-up on this is dripping with delicious anticipation.Mike Masnick notes that Nesson has a lot of caselaw and is using the RIAA's own words against them. But we're still at the very earliest stages yet. My guess is that the RIAA will drop its case against Tenenbaum and attempt to get the countersuit mooted rather than try to defend on the merits.
1Full disclosure: Corante, the organization that hosts this blog and many others, has had close professional relations with the Berkman Center for many years. I have no personal affiliation with Berkman, nor is there any influence from that organization on this blog.