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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

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Monthly Archives

April 29, 2010

Cartel Thinks Child Porn "is Great"

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Posted by Alan Wexelblat

No, really. I can't make this stuff up. Back in June of last year Sweden elected an MEP (Member of the European Parliament) from the Pirate Party. The party's platform included a focus on protecting copyrights from over-regulation and abuse.

The MEP, Christian Engström, now has published on his blog site comments from the Danish anti-piracy group lawyer Johan Schlüter at a Stockholm meeting a couple years ago. According to this blog post, Schlüter thinks ”Child pornography is great" because authorities can be talked into blocking Web sites that host child porn, and therefore will be more amenable to blocking file-sharing sites. Never mind that the one thing has nothing to do with the other. This is what the Cartel thinks is clever strategy.

I'm reminded of Bruce Sterling's 2002 remark about the "Four Horsemen of the Infocalypse." Child pornography is a universally reviled evil; no one can be in favor of it. Therefore, you just need to link the thing you think is bad (file sharing) somehow to child porn and presto you taint that thing with the same scourge. Assuming, of course, that your audience is gullible. Or morons. Or both, which is apparently what the Cartel thinks of its audience.

Comments (0) + TrackBacks (0) | Category: Rumor and Gossip

April 26, 2010

Sita vs Netflix

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Posted by Alan Wexelblat

Back in January of last year I wrote about the indie film Sita Sings The Blues, which had gotten tangled up in some hairy ridiculous amount of copyright snarl. Since then the film's maker Nina Paley has gone on to settle most of her copyright troubles, line up major distribution (despite copylefting the film itself) and generally enjoy what I'd say is the happy ending kind of possible in the current Copyright War regime.

Now she's written a blog post about why you can't get Sita via Netflix. It comes down to DRM. She wants her movie distributed DRM-free and Netflix won't make an exception, even for her free movie. Netflix also won't make a policy exception to let her insert a message before the movie pointing to where people can get it for free. So it won't appear on Netflix and Paley will pass up the revenue she'd get from the distribution deal. Just another brick in the wall.

(Oh, and she takes a swipe at the "everything-DRM" iPad so you might want not to read that, iPad lovers. Actually, I'm sure I've ticked them all off and they're not reading this blog anymore, but you know just in case I figured I'd give fair warning.)

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

April 22, 2010

Arguments Against Gene Patents

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Posted by Alan Wexelblat

A couple weeks ago I posted that I was undecided on the question of gene patents. A recent commenter took me to task on the issue and reminded me that I'd meant to read more on this. I have a query in to my local library to see if they have a copy of Genetics in Medicine, which recently did an issue on the topic.

In addition, Joseph Stiglitz (Nobel Prize-winner in economics) and John Sulston (science ethicist) have a stongly worded editorial piece in the April 16th Wall St Journal opposing gene patents. Both of them were supporters in the recent case in which the patents on BRCA1 and BRCA2 genes were invalidated. A key component of their argument is that the patent here does not serve basic economic interests; rather, the monopoly power of the patent actually hinders both competitive development and the additional research that is necessary to understand more fully the roles that these genes play.

In effect, the argument goes, the patents form a roadblock that impedes both useful commerce and necessary research. This argument runs in parallel to their more fundamental argument that genes - as naturally occurring sequences - are not patentable inventions. Given the disastrous state of current law and practice on what is and is not patentable, I think it's wise to make both arguments since any attempt to apply what would seem to be common-sense logic to our current patenting practices seems guaranteed to produce only stress and gray hair.

As to my own point of view, I think Stiglitz's economic arguments are important and moderately persuasive. I have not read the extensive evidence submitted in the case but I'm willing to believe that the plaintiffs made a convincing economic case, which undercuts the "patents are a necessary incentive" argument I've believed in the past.

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

The Urge To Share

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Posted by Alan Wexelblat

Boingboing pointed to this video called "When Copyright Goes Bad", a 14-minute discussion of what's gone wrong in the copyright wars at this point. Fred Von Lohmann features heavily, as do a few other Copyfight heros like Michael Geist, who points out that probably the entirety of remix culture is based on a natural human tendency to want to share. If you assume that people are, on average, good and generous then it should not be surprising that they want to share what they have, that they want to show off what they've made, and to mix it up with their friends.

Special speaking point props to Hank Shocklee, listed as one of the "founders" of Public Enemy but also well known as a hip-hop producer in his own right as part of the Bomb Squad. Shocklee hammers on the point that I wish more people would engage with - the evolution of a workable copyright system will be impossible without the informed engagement of the consumer. The Cartel's model is so wrong because it treats the consumer so badly - as a criminal, as someone to be scared into obedience, as a spigot from which every possible penny must be wrung regardless of how bad an experience comes from the interaction.

This is an example of what I meant when I said I disagreed with Cory on whether or not a negotiated peace is possible with the Cartel. The radical difference in views on how people ought to be treated makes it impossible, in my view, to find negotiable ground. (In Cory's defense I should say that he has extensive experience negotiating with publishers for things like the rights to make available DRM-free electronic versions of his books and I do grant that the Cartel are not wholly monolithic.)

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

April 16, 2010

Whereas Cory Thinks We're At War

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Posted by Alan Wexelblat

Unlike Fred Von Lohmann's optimistic take on things, over at The Guardian (UK) Cory Doctorow's latest column rails about the fact that we're at war. Which is, yanno, more or less what I've been saying for the last 5+ years in this blog. Cory's pissed that the Cartel just won a big battle in the Copyright Wars over in the UK. But it's still just one more battle in this protracted struggle.

Unlike, apparently, most Copyfighters, I've never thought a negotiated peace was possible. The Cartel just thinks too differently, and has wholly incompatible motives, for a negotiated solution. There are only three possible outcomes - subjugation that will kill off the subjugated technology (RIP DAT), the death of the Cartel dinosaurs (RIP pretty much every retail music outlet, half the major labels, most newspapers and on and on), and the outcome that gives me the most hope, which is the growth of a new generation that views this fight as uninteresting and irrelevant. That generation will rip, mix, and share because it's what they've always done.

The laws and regulations, the FUD, the technological shenanigans can make it harder but you cannot sue, scare, or legislate culture out of existence. Not if you're the Chinese government and not if you're the Cartel. Change the kids and you own the future.

Comments (2) + TrackBacks (0) | Category: Interesting People

Nutriset Responds

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Posted by Alan Wexelblat

Rémi Vallet, who gives his URL as Nutriset's site in France, responded at length to my call for engaging the moral dimension of intellectual property issues. He doesn't list himself as a spokesperson for the company nor give any title he might hold with them, so I can't actually say it's an official response, but he does raise points that I felt were worthy of bring up to the front page rather than being behind a comment link. (ETA: In a private email Vallet identifies himself as Responsable de la communication / Communications Manager for Nutriset so I think we can take his response as representing the company)

First, he corrects my misapprehension that Nutriset is not licensing its product. There is a (PDF) link to a description of a network of manufacturers and licensees, though I am somewhat confused as to what it means for the company to license its product in a country where it does not hold a patent. Still, that's a minor issue.

The heart of the question seems to be what qualifies as 'demand' or possibly what we might refer to as 'need.' From Vallet's point of view, the "demand is by far insufficient to meet the needs of the 20 to 26 millions children suffering from severe acute malnutrition." Here "demand" is synonymous with "people asking to buy our product" whereas someone else might say that these children's hunger constitutes a demand. Currently, according to Vallet, production of all RUTFs is about 60k metric tons, which doesn't come close to feeding those 20+ million children. The cost of taking up the full-scale project is certainly in the billions; Vallet quotes a World Bank estimate of USD 12.5 billion annually.

That scale of expenditure is clearly beyond the means of any but the largest corporations or charitable agencies. One might then conclude that Nutriset's patent is not a major obstacle in solving this problem - which would be true but almost wholly beside the point, insofar as one wants to engage with the question of whether patents on these sorts of products are in the general good or not. Nutriset's patent is just one example of a license that has moral implication.

The core notion of a patent is a grant of monopoly rights in exchange for some form of betterment, usually of the society or country that grants the patent monopoly. From a pragmatic point of view, as I've written before, we also need to consider the cost/risk/profit equation of the patent holders. Even though the US Constitution and other patent laws do not frame their grants in terms of profit, if we expect the market system to produce these life-saving products then we have to ask hard questions, such as "Is Nutriset's patent impeding production and distribution of life-saving foods?" and "If so, what is the proper remedy?" or "If not, to what extent are we comfortable allowing private commercial entities to claim exclusive rights?"

Vallet links to another PDF, a UN policy brief on "Scaling Up Nutrition" that, while laying out the problems and costs in fairly stark terms does not even mention the words "patent" or "intellectual property." I'm sure it's good that Nutriset endorses this framework, but that's necessarily going to help work through the tough questions around IP and life-saving.

Comments (2) + TrackBacks (0) | Category: Big Thoughts

April 15, 2010

iPad Lovers Just Skip This

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Posted by Alan Wexelblat

After the flap I created in the comments by implying that Apple would (and does) continue to treat the iPad like a gated Disney-esque community, I figure at least half my readers have already decided I'm too heretical, or offensive.

Which, in a very small way, puts me in excellent company. In particular, the cartoonist/satirist Mark Fiore has just won a Pulitzer Prize - the first online-only cartoonist ever to do this - but he's too heretical, or offensive, for Apple. The applet he tried to get into the iStore that would let people read and watch his cartoons on the iPhone (and presumably iPad) the way they'd do it them on the Web was rejected for "ridicul[ing] public figures." Well, duh. That's sort of the point of political cartoons, right?

Maybe I was wrong to say that what Apple wants to do is what the Cartel has wanted for a while. Maybe Apple is just fulfilling Boss Tweed's desire to shut those damned cartoonists up.

See more of Mark's work at his site:

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

April 14, 2010

Everything You Need to Know About ACTA (to this moment)

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Posted by Alan Wexelblat

For the most up-to-date news, subscribe to Michael Geist's newsletter or read his blog.

But for now you can just spend 40 minutes watching the recording of his keynote from the PublicACTA conference in Wellington, New Zealand. The slides are dull and the topic is complex but Geist has been dogging this issue for years and he knows the history and the problems with this trying-to-be-secret IP agreement in the making.

(h/t to boingboing where I first saw this linked and which has done a very good job of tracking this complicated and secretive monster for months.)

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

April 13, 2010

Another Step in the IP/Lifesaving Debate

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Posted by Alan Wexelblat

This time it's not just medicine. At the end of last year, a couple of US non-profits filed a challenge to US patent No. 6,346,284 which describes a food product currently marketed as "Plumpy'nut." Despite the cute name, the product has a serious use - it is what is called an RUTF, a ready-to-use therapeutic food. Because Plumpy'nut requires no water to reconstitute and has a safe shelf life over over two years even in harsh conditions, the food is considered ideal for relief of severe malnutrition in areas without some basic infrastructure such as clean water or easy access to refrigeration. According to WHO, malnutrition is the cause of half of all child deaths worldwide, so this is serious business.

The IP issue - as in the case of medicines - revolves around the patent. The company holding this patent does not license it, so it is not possible to produce the food equivalent of generics. There's also some question about whether the patent itself is over-broad, which is a convenient hook on which to hang a suit but misses the issue I think is important.

A BBC story from last week indicates that the patent holders, a French company called Nutriset, are well aware of the moral dimensions involved. They argue that "No child in the world has even been denied access to the product as a result of the patent issue" which may or may not be true, but at least it goes straight to the heart of the concern. It is acknowledged by both sides that there is more demand for RUTFs than Nutriset is currently meeting, but simply making more bars isn't always the only factor in a solution.

For example, a TimesOnline story from last August describes how India blocked the use of Plumpy'nut, in part due to concerns over safety and in part due to concerns over whether an imported foreign product should be used to solve a problem that Indian authorities seem to believe should be solvable with local products. Again, this is (in my opinion) much more on the point than debates about which countries do or do not recognize the US patent.

Nutriset is making similar arguments, saying that they'd be happy to ramp up production but funding and systems of distribution are lacking. I'd love to see those arguments engaged directly - what compensation (funding) should Nutriset get for its product? Who should pay? Would a compulsory local manufacture-under-license program both provide adequate profit to the company and also address national governments' concerns about local solutions?

Intellectual property doesn't always have moral dimensions, but when it does they can be life-or-death and there needs to be a much more serious engagement with those dimensions in order to shape a coherent global IP regime.

Comments (5) + TrackBacks (0) | Category: Big Thoughts

April 5, 2010

Should Genes Be Patentable?

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Posted by Alan Wexelblat

In response to my posting a couple weeks back on more IP that kills, a reader suggested I cover the recent decision invalidating a patent on two genes linked to breast cancer.

I was undecided then and I remain undecided. The situation gets unpleasantly complex. First off, there's a question as to whether one ought to allow patenting of so-called natural sequences (genes, typically) or other things that come about without deliberate action or intervention. I'm not a patent lawyer, but even here I'm of two minds. I'd like to think that for-profit enterprises ought not to be rewarded simply for being first to file a sequence isolated from a creature or compound that has existed for hundreds of years - what's the invention here anyway?

But there are situations where the sequence is unknown and most essentially the relationship of the sequence to causation and effect in the macroscopic world is unknown. The science of discovering that is largely driven by profit motives - you find things like mutations or genetic markers in order to develop diagnostic tests or curative agents. Unless we give sufficient protection to the people and companies engaged in this research they may not be motivated to invest the millions the research requires. So what's the alternative to permitting patents on (gene) sequences?

Second, is there a threshold case here? Breast cancer is unpleasant at best and if untreated can lead to other cancers, major side effects, and even death. That said, a predictive genetic test for it is definitely a First World concern. The predictive test may be better than other methods, but does it pass the threshold that I feel anti-retroviral medicines for AIDS pass? I'm not sure.

Third, the ethical consequences of patents on genes are poorly understood (at best). We really don't know what it's going to mean for society to give monopoly powers over creatures and bits of our own bodies to commercial entities. The fact that this case has arisen over a situation as personal and deeply affecting as breast cancer is probably not a coincidence.

Finally, is the practice of gene isolation an important and necessary part of the process? Is that sufficient to create a patentable product or is it, as the NY Times story notes, merely a "lawyer's trick." The root problem here is that the patent system is increasingly divorced from our growing understanding of science (h/t to Greg Aharonian of PATNEWS who has been hammering on this issue for years). If patent examiners could be properly trained in the science of the area in which they're issuing patents, and if the patent law supported clear statements of the scientific principles underlying patents, then we'd be in a better position to judge this - or at least a competent scientist would be.

As with most of these big thoughts I have far more questions than answers. I do expect this case to be appealed and probably overturned on appeal, but that won't make the fundamental issues go away.

Comments (2) + TrackBacks (0) | Category: Big Thoughts

iPad Does What the Cartel Dreams Of

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Posted by Alan Wexelblat

Produce a totally locked platform, with no legal way to download or produce your own content, modify it, claim ownership of anything on it, be totally dependent on the Father for every droplet of updating? Cartel's wet dream, and Steve Jobs has made it real. Cory's preaching to the choir, but he sings it so well.

Did I mention I bought a Droid for political reasons? Yeah, not getting an iPad either, even if they are trivial to jailbreak.

Comments (11) + TrackBacks (0) | Category: IP Markets and Monopolies