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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.

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Monthly Archives

June 30, 2011

Do You Read Books Once And Dispose of Them?

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Posted by Alan Wexelblat

David Bernstein at Volokh Conspiracy pointed out that the University of Chicago Press bookstore is selling the full digital PDF of his book for USD 45, the same price as the hardcopy, and more than the Amazon Kindle edition ($30). But they're also offering a 30-day license to read the PDF for $7.

I haven't looked into the details, but presumably there is some kind of DRM wrapped around the file download that Adobe's PDF readers recognize and use to block your reading it seven days after download or after first opening it.

Bernstein points out that many people buy books at full price and then after they are finished with them, re-sell at some small loss on Amazon anyway. Other people (like me, sadly) buy books, read them once, and then shelve them never to be opened again. For these sorts of people the limited license might be a good idea, at least from a cost perspective.

The problem (which people are pointing out in the comments on the blog entry) is that this model blocks use of the work for reference. A limited license might be useful for books that are more entertainment-oriented and less reference works, but it doesn't seem likely to catch on with weighty law tomes, even though those tomes tend to be pretty expensive.

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

June 24, 2011

Is Self-Publishing Finally Coming Into Its Own?

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Posted by Alan Wexelblat

And by "its own" here I mean "a big enough business to be profitable and competitve". Long-time readers will remember that I've been circling around the issue of self-publishing for years. Each time I look, it seems that the business is still full of landmines and pitfalls for authors and publishers alike.

A few days ago, on the occasion of John Locke becoming "the first self-published writer to sell a million Kindle electronic books", Liam Allen for the BBC takes a look at self-publishing, independent authors, and the state of the business as he sees it.

Allen points out that there are now multiple success stories we can point to - people who were turned down by traditional publishing houses and who have gone on to have best-selling self-published books, even beating out well-known name authors in sales rankings. There are also bonus points for authors having more control, and taking home a much larger share of the sales revenue.

That said, an author can't just hand over an e-book and expect it to sell itself. The author has to take on many of the duties previously handled by the big publishing houses - promotion, marketing, and fulfillment among them. Some of the self-publishing enterprises give authors mechanisms for this, but none are offering the kind of full-service boutique you get from, say, a Random House.

Pricing is also a challenge that the self-published author has to surmount. Allen quotes Locke as saying that the 99-cent pricepoint of his e-novels was originally intended as a "loss leader" but in fact they've become his biggest sellers. Shades of Cory's argument that giving his stuff away was selling the hell out of it. Low pricing itself can be a two-edged sword. People (fans) who get used to a low price for one book may not stick with you if you raise the price and even though e-publishing systems often give authors the chance to change their selling price, there are no clear guidelines about whether or not to raise or lower a price.

I think one of the sure signs that self-publishing will have arrived as a well-accepted business model will be when we begin to see real statistics and case studies around these issues - and not just the current crop of how-to books. If those rigorous studies don't already exist, I predict we'll see a good sampling of them before this time next year.

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

June 22, 2011

Exquisite Corpse Seeking Collaborative Artists

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Posted by Alan Wexelblat

I have no affiliation with Exquisite Corpse, but I've been asked to pass on this announcement which sounds pretty cool, so:

Exquisite Corpse is seeking artists interested in collaborative works for a curated show in Chicago this fall. The application deadline is Wednesday, July 20 and you can find both the artist application and instructions over at the artistsonthelam blog.

Artists will work collaboratively in groups of 3 or so on pieces for the exhibition.

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

June 21, 2011

Pi, As A Hand Dance, Not Copyrighted

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Posted by Alan Wexelblat

With all the serious doom-and-gloom stuff of this month I felt we needed a bit of a humor break, so here's the delightful Vi Hart visually expressing her outrage at the silly notion someone would make a copyright claim for a song based on the first few digits of pi.

One of my current hopes is that my younger son who, at age 8, thinks the Fibonacci Sequence is cool, grows up to be like Vi with a love of math and art and music and no hesitation about sharing it with the world.

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

June 17, 2011

When Are Physical Property And Intellectual Property More Alike?

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Posted by Alan Wexelblat

This will take a bit to set up, so bear with me. Some people, not least of them Richard Stallman, think that the term "intellectual property" is itself nonsense - treating ephemeral items such as patents and software the same way one treats physical objects like cars and plots of land is wrongheaded. I've tried to get Stallman to give me a clear answer on what he thinks they should be treated as, but gotten no coherent response. So let's assume for the purposes of this discussion that property means "property" and we can treat them the same. (Image taken from the cover of Richard Posner's book on legal theory.)

That's important in this case because there are laws, generally classified under the realm of eminent domain, that control how and when a governmental entity can take what is nominally private property. If we're treating intellectual property in this way then you can, in theory, apply eminent domain principles to a state actor taking intellectual property.

To my knowledge, this is a novel theory. Or it was until last month when NeuroGrafix, a medical imaging company, sued the regents of the University of California for infringing NeuroGrafix's patents, on the theory that their infringing activity constitutes an illegal taking under the rules of eminent domain. NeuroGrafix will argue that a taking of this sort requires both due process and potentially just compensation, as guaranteed by the 5th Amendment.

Why go through all this indirection and not just sue UC for ordinary infringement? Well, the short answer is "you can't"(*). States enjoy what is called sovereign immunity - you more or less can't sue them for damages without their consent. There was a case in 1999 called Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank that dealt directly with the issue of patent infringement claims. Since UC is an arm of the state it enjoys that immunity umbrella.

Like all novel legal theories, this one will likely need to be put to the test more than once before any law is considered decided. For example, I'm not clear on what NeuroGrafix will argue is the "taking" in this case, or how they'll try to value the property lost, for which they'll claim compensation.

That's part of the danger of making this analogy between physical and intellectual. We've all seen ridiculously inflated damages claims in IP cases before. H/T to PATNEWS for the pointer; this case doesn't seem to have gotten much mainstream media attention.

(*) the whole notion of sovereign immunity is still much in debate. The Wikipedia entry for the 11th Amendment, which established this immunity, notes that as recently as 1999 the Court split 5-4 on an immunity question.

Comments (3) + TrackBacks (0) | Category:

June 16, 2011

Pandora and the Ongoing Search for Profits

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Posted by Alan Wexelblat

Back in 2009 I noted that 50% of Pandora's revenues were going straight to the Cartel. Despite the advance of time the situation hasn't gotten any better. Marketwatch reports the same costs to the company for 2010, and the situation may get worse if rights-holding organizations seek to require Pandora to pay the planned increase in public performance-right fees for all Pandora subscribers. Currently they pay $0.00102 for non-subscribers and $0.0017 for subscribers. In 2015 those rates go up by 37% and 47% respectively

Pandora also has more fees going out to BMI and SESAC and has yet to come to terms with ASCAP. Once all that and the 2015 increases are factored in the cost to Pandora will be just about at the level proposed back in 2007 that would have killed the service. In theory, ad revenue available now and growing ought to be enough to cover those additional fees, but somehow I doubt it.

For those who haven't been following this story for the past few years, John Shinal's MarketWatch column has a good bit of history, going back to the time period when I thought Web radio was going to be killed off. It appears that they got an 8-year stay of execution but unless something changes radically I won't be holding any of their stock as a long-term investment.

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

June 15, 2011

Only Amateurs Care About Copyright Registration (in Hollywood)

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Posted by Alan Wexelblat

Television writer Chad Gervich has some pretty strong opinions on people who are concerned about protecting their ideas in the world of television script-writing. In a piece for Scriptmag online earlier this month he responds to readers' questions about the need for registering their works with the Copyright Office or the Writer's Guild (WGA).

He reminds would-be screenwriters that ideas can't be protected in the first place, only tangible forms in which the idea is fixed. In addition, he notes that:

[T]here is no bigger sign of an amateur than someone who’s worried about their stuff being stolen

In Hollywood, as elsewhere, creativity is a collaborative process. Ideas have been done a hundred times before and been seen by the producers at least ten times before. Real people who really work in this industry share, critique, feed off each other's stuff, pay homage, make suggestions, and in general participate in a free flow of ideas that feed the creative process.

Gervich's advice to aspiring screenwriters is much the same advice as is given to authors in other fields: make your stuff unique. Make your voice stand out. Make a contribution that is wholly yours and that cannot be replaced. The idea is not unique - the writer is. Separating the two, and focusing on protecting and nurturing the latter is the whole point.

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

June 14, 2011

Misuse of Dictionaries in Patent (and Other) Decisions

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Posted by Alan Wexelblat

Apparently it's WTF month here at Copyfight. Another one that has me scratching my head: a story in the NY Times describing the increasing frequency with which dictionaries are being cited as reference materials in judicial decisions.

The article author, Adam Liptak, reports that the dictionary authors themselves are puzzled that the Justices seem to need to be sure what words like "prevent", "delay", and even "of" are supposed to mean.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

Although the article was prompted by the repeated citations of dictionaries in a patent case, the problem seems rife in SCOTUS rulings. Liptak also notes that Justice Breyer criticized Chief Justice Roberts for resorting to dictionary definitions in an illegal-hiring case.

I find myself wondering - do the Justices really not know these words? Do they think Congress intended some specific meaning for these words that can be intuited from dictionaries? Are they comparing dictionary definitions of words with the (admittedly specialized and often obscure) words used in patent applications? And to echo Sheidlower's point - do they not realize that dictionaries don't set rules for word use - that went out shortly after Daniel Webster died. Rather, a modern dictionary attempts to capture how words are used and meanings assigned to them by the population the dictionary samples and addresses.

I wonder what they'd make of Urban Dictionary.

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

June 13, 2011

Apple Tries to Stop People Giving Away Their Products

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Posted by Alan Wexelblat

News of the Weird has this great section called "News That Sounds Like A Joke" in which they report on things in the actual news media that sound on the surface like someone is pulling a prank. Today's entry falls in that category.

A reader sent me an incredulous note pointing to a story by Philip Elmer-Dewitt on CNNMoney about how Apple is trying to stop people using iPads and iPhones as contest give-aways. Even better, you're not allowed to use the Myriad Set font; long-time Copyfight readers may recall that I'm a bit of a font geek, too.

As the person who sent this item to me (the company that hosts my personal Web site) said "When I give milk away I don't need to talk to my grocer, a farmer, or a cow". Indeed. Beyond that, I got nothin'. Is someone pranking CNN here?

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

June 9, 2011

Copyright Yo Face!

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Posted by Alan Wexelblat

David Post had an interesting blog post last month asking the question of whether a tattoo is a copyright-protected item. The case in question involves a custom-designed facial tattoo created for Mike Tyson, and duplicated for actor Ed Helms in the film Hangover 2.

The artist who created the tattoo, Victor Whitmill, claims copyright and sues for infringement. Post walks through the elements necessary to establish copyright - and remember that since Berne there is no requirement that copyrights be registered in order to exist. If a tattoo can be copyrighted - and Post strongly agrees that it can be - then the work was copyrighted as soon as Whitmill did it.

Post also dismisses a claim that "the human face cannot be a 'medium of expression' for purposes of the Copyright Act" but he does not deal with any of the issues I think copyright in a tattoo raises. For one thing, a tattoo is often done in more than one sitting. In the case of a complex tattoo there may be a session to set the outline, another session to fill in color and another session to do complex detail work or shading.

Unlike, say, a painting on canvas that may also be done in multiple sessions, the partially completed tattoo is shown and fixed after each session. The subject may - for example, due to lack of money - not return for follow-up sessions. Is the partially completed tattoo the copyrighted work, even if it differs substantially from the original agreed-upon design? Are there multiple copyrighted works created in series here? In this case we might think of a tattoo as more like a story that is printed in a serial form - each chunk/chapter that is printed is itself copyrighted, as is the final compiled work.

Tattoos also are often modified. A person may choose to have a tattoo extended, either by the original artist or by another artist, years later. Since copyright term is long enough to cover these periods do we have to treat these additional artworks as derivatives of the original? Do I have to get permission from the original artist to modify or add on to my existing tattoo? If I can no longer find the original artist does that make my tattoo an "orphan work" that I'm legally not allowed to create a derivative of?

And finally, where does copyright restriction intersect with our general laws on personal bodily freedom. Lawrence v Texas and other cases established some strong precedents on personal liberties - generally speaking I'm allowed to do what I choose with my body as long as it doesn't cross certain thresholds. Does my modification of my tattoo fall under personal liberty permissions even if it violates the original artist's copyright? What if my modification is always covered by my clothing in public and only visible in private; does that make any difference?

Copyright may, as Post claims, be a natural form of protection here but I fear it raises far more questions than it answers.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

June 8, 2011

Vicarious Infringement in Corporate Settings

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Posted by Alan Wexelblat

A Copyfight reader who saw my footnote about working at a financial firm sent me a pointer to a article on Lowry's Reports Inc. v. Legg Mason Inc.. This decision, which is now a couple of years old, sets an interesting standard for forwarding of copyrighted material within an corporate environment. Email makes this trivial, but in a word: don't.

The notion that sharing something like a copyrighted newsletter would be fair use wasn't accepted by the court, and interestingly the company (financial firm Legg Mason) was found guilty of contributory infringement - the same thing that P2P software makers have been found guilty for - because employees used company resources to email around copies of e-newsletters.

The article is pretty basic, spelling out everything from the definition of a copyrighted work to a definitional footnote on the fair use exemption, but still interesting to me. The company I work for doesn't produce research - an umbrella term in the financial industry for any sort of material describing a company, its products, its financial standing, and/or its expected future performance. Nor do we consume it, since we're not investing our own or our clients' money. But many of our clients do produce large amounts of research, and all of them subscribe to several forms of it. I imagine many of them would be surprised to read what was decided in Lowry.

Research producers have tended to follow models similar to software producers in dealing with clients - minor copying is generally ignored; egregious copying is discouraged or prosecuted as a last resort. And also like software, you can buy multi-seat or sometimes site-wide subscriptions to research that lets you sidestep the entire copyright question entirely. And like software, the research industry is at a loss to know what to do with the new modes of distribution such as e-readers, tablets and other mobile devices.

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

June 6, 2011

Drugs, Prices, and Patents

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Posted by Alan Wexelblat

I'm working on a longer piece about a sea change in drug pricing. Long-time readers will know this is a perennial favorite topic of mine, as I worry about the intersection of intellectual property law and policy with life-or-death situations.

Meanwhile, I wanted to point to three recent stories that touch on this topic. First, there was a big announcement today that GlaxoSmithKline (GSK) would be lowering the prices on certain vaccines sold in developing countries down to something like 5% of their US cost. On one level this isn't all that big of a change - GSK has long had what it calls "tiered pricing" and vaccines outside the US can be had for half or less the cost we pay here. A 95% reduction then means that the drug will be more affordable to more countries, particularly in the poorest parts of Africa. One of the vaccines involved in the new announcement protects against rotaviruses that are said to be responsible for half a million child deaths annually across Africa.

Technically the virus itself isn't fatal; it causes diarrhea and dehydration that do the killing. This matters a good deal in the developed/developing world divide. In the US if you get a rotavirus you'll probably be miserable but you can get treatment and won't likely dehydrate. But in the developing world where access to medical care on-demand is rare and parents may not be as well educated to recognize symptoms early the results are much more often fatal.

The reduced prices for the drugs will be paid by foundations and grants led by the Gates Foundation. In an interview on NPR (which I can't find the link to as of this writing) the GSK spokesman said that the 5% sale price was essentially at-cost, covering manufacturing and distribution. The drug companies then will not be losing any money on the production and presumably the other costs associated with the drug are covered by the higher prices paid in the developed world. The free good PR probably doesn't hurt either.

Speaking of higher prices for US patients, Reuters has a story on how the increasing costs for cancer treatments are pricing them out of reach of many Americans. The picture painted by this story - of people driven to bankruptcy, people giving up on treating cancers that should be treatable - stands in stark contrast to the rosy picture of the vaccine story. Reuters' piece focuses on a study by a Dr. Lee Schwartzberg that looks at new oral means of administering medicines. In theory oral medication should be cheaper for the patient than the traditional IV since it involves less equipment and fewer skilled personnel. However, since the new therapies are all under monopoly (patent) protection there are no generic equivalents, no price competition, and the result is that people are unable to afford the drugs that would save their lives, or their childrens' lives. In a parallel study by a Dr. Yousuf Zafar at Duke, it was shown that the people struggling with these bills are not the poor and uninsured. 99% of these people have insurance, with 83% having some kind of prescription coverage. Still, the prices are too high. It's a shame that this story isn't getting the same prime-time airplay that the first one is getting.

Finally, a nod to a Volokh Conspiracy post by Eugene Volokh about Mayo Collaborative Servs. v. Prometheus Laboratories, Inc.. This is a fantastically important case debating the question of the scope allowable for patent claims that deal with observable "correlations between blood test results and patient health". The case has been to SCOTUS twice and been remanded down for further argument both times. (See also the SCOTUSblog page.) It's up for certatori again and if you're the praying type, pray that this one gets cert. The way the law stands now, a set of patents (in this case owned by Prometheus) can constitute a huge and very broad monopoly, effectively preempting any number of uses or observations of naturally occurring phenomena. If that is allowed to stand, not only will competition be stifled but whole lines of research and investigation will be snuffed out because they're based on observing naturally occurring phenomena.

And more people will die.

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

June 2, 2011

This is How We Mash, 2011 Business Models

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Posted by Alan Wexelblat

I know I said I wasn't going to write more about mash-ups but this is one of the better examples of corporations making use of the new ways people interact with music content so I wanted at least to nod in their direction.

Vevo puts a lot of official music vids up on YouTube. As I mentioned back in March, there's now an expectation that your device will be able to connect to the cloud and get you the music you want so there's really no need to keep your own MP3 copy of it. Vevo is supplying this demand with tons of free music, and taking the opportunity to promote itself, its artists, and its corporate and advertising partners along the way. I can't tell you if they're making money at it, but I applaud them for trying to build a new business model.

Now if your device happens to be a hand-held mobile device (still called a phone for about the same reason we called cars 'horseless carriages' at one time) then your likely method of pulling from the cloud will be an app. And as part of its strategy, Vevo has teamed up with YouTube to release an app that attempts to fulfill users music needs by directing them to all this content Vevo has put on YouTube.

And because they seem to be hip to their audience Vevo isn't just running ordinary ads for this app. Instead they've hired DJ Earworm, who is well known for his masterful mashes of pop music, to create a mash-up ad. Earworm has taken seven songs and videos from Vevo's content and produced a mash-up that promotes the app, Vevo, and YouTube.

Free apps, and advertising, are notoriously hard to measure for effectiveness. If you charge for an app, or for content, you have easily available numbers that can be read for effectiveness. Whole books of economics are written around things like price elasticity and the balances of supply and demand - and all of them rely on simple transactional records to demonstrate their points. This here is much more slippery. Vevo needs to make a profit to stay in business. Will its advertising, its association with a popular remixer, and its head-first dive into providing free streaming music from the YouTube cloud help that? I have no hard numbers, but my gut tells me yes, they're on the right track.

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