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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

November 29, 2012

Batshit Insane Extradition Plan Derailed

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Posted by Alan Wexelblat

It now appears that Richard O'Dwyer will be able to settle his case without being forcibly extradited. According to the BBC story linked above, O'Dwyer appears to have negotiated a "deferred prosecution" agreement. He pays a small fine, makes a formal appearance, and the matter goes away.

While I (and about a quarter-million other sane people who signed Jimmy Wales' petition) am naturally pleased that he won't be forcibly extradited, this does not solve the central problem. A foreign national was prosecuted in the US for allegedly breaking US law despite never having been in the US, nor having any of his computer equipment in the US. The US Immigration and Customs Enforcement agency has become the Cartel's INTERPOL, and vast amounts of resources were wasted on a guy charged with linking to other online material. Neither ICE nor the Cartel is known for having a sense of proportionality and there's nothing in this resolution to stop them repeating this behavior.

TorrentFreak notes that there may be other similar deals in the works and the truest line goes to Loz Kaye of the UK Pirate Party, who noted that, "The US cannot be allowed to be the copyright cops of the world."

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November 28, 2012

How Do We Make More Than Pennies Flow?

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Posted by Alan Wexelblat

I am coming to believe that artist compensation issues may be a bigger stumbling block for streaming music than I had thought. You may recall in October I asked whether streaming music was a viable business, and the question has come up again.

This time it's via a thought piece by Damon Krukowski for Pitchfork titled "Making Cents." Krukowski was a founding member of the late-80s alternative band Galaxie 500 and has been a performing musician for decades. He writes from the point of view of someone who watched his industry wrenched out from under him as his career went along. And, like David Lowery, Krukowski believes that the new music business models are systemic swindles.

He directs a shot specifically at Pandora, which I noted last time was trying to improve its image of being too stingy with payments, and Spotify. He gives specific numbers showing that the total payments by these services that end up in the musicians' pockets amounts to pennies - and not that many pennies either. But his major complaint isn't with the services named - it's with the model of streaming music as a business.

As Krukowski lays it out, the streaming companies aren't making profits either, so it's not like they're ripping off consumers and artists and pocketing the wads of cash. Instead, he notes, they're just businesses in the business of being businesses. They grow their companies' values, in ways wholly divorced from the music business.

On the one hand, I'm sympathetic to this. It's got to be frustrating for someone to try to make a living having no idea how to price and distribute what they make so that they can have a real income. Krukowski links to where you can get all of his bands' music streamed for free anyway. The difference between free and the services' pennies isn't that big a deal, clearly.

On the other hand, you could just as easily accuse Apple, Amazon, or Wal*Mart of being "divorced from music" even though they all sell a crapton of it. That's not a reason to dismiss the contribution each of these giant retailers makes to selling music. Rather, it's a reason go to back and say "If big retailers can make money on, and pass substantial revenue to artists on, music why can't the streaming services?"

It's clear we haven't gotten the model right yet, but it's still very early days. I'm not willing to give it up before it's been really tried.

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

November 24, 2012

When Conservatives Are Optimistic About IP It Looks Libertarian

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Posted by Alan Wexelblat

Coincidental with the recent ripples caused by the RNC Copyright policy-revision memo, David Post noted on the Volokh blog that a new book on the topic is coming out soon.

Called Copyright Unbalanced, the book attempts to capture current thinking from conservative and libertarian writers on how current US copyright law has gone awry and what might be done to fix it. Solutions include fighting against "crony capitalism", rolling back criminal penalties and forfeiture in copyright cases, and returning to a more originalist vision of copyright, in which the monopoly is given to serve a public good, not to enrich corporations or individuals.

It seems to me that - as happened with the opposition to SOPA - the current utter disaster that is our copyright system is a place where major elements of both left- and right-wing social/political thinkers can come to useful agreement. Liberals aren't uniformly opposed to big government, but tend to favor open intellectual exchanges, which current copyright regimes are crippling. Conservatives oppose government's continual expansion of its powers and certainly the repeated extensions of copyright's scope and reach fit that description. And libertarians often seek rational bases for restraining governments' powers; in my opinion the current management of copyright has strayed so far from its Constitutional intentions as to be irrational. Thus I think we need to cooperate on finding ways to reign things in.

However, as Jerry Brito comments in the linked entry above, this need is likely going to fall into the same generational gap as opposition to SOPA did. The older, established parts of both Republican and Democratic parties are beholden to the entertainment industry for dollars and are locked into old-model ways of thinking. The younger and more dynamic parts of the parties (e.g. techno-libertarians and Internet/social media liberal-progressives) will find themselves fighting the party elders on this issue. And as I mentioned in the entry earlier this month I am sadly lacking in hope that the second Obama term will be any better in this regard than his first, no matter how much he used the younger parts of the Democratic base to get re-elected.

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

November 20, 2012

November 19, 2012

Could Something (IP) Good Come from the Republicans in Congress?

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Posted by Alan Wexelblat

Long-time blog readers will remember that I've been unhappy for some time about the way that the current Administration seems beholden to its Hollywood backers, whether it's the Cartel takeover of the DOJ or the completely ridiculous attempts to extradite a UK college student for doing nothing wrong according to his home country's laws, but still upsetting the copyright cops and their US enforcement lackeys.

So it was both amusing and disappointing to see the Republican party cave instantly when Hollywood phoned up to complain about a simple position paper. Still, there may yet be hope as a friend of mine has pointed me at a notice last week on Roll Call. According to the story by Ambreen Ali, (Republican) US Rep Darrel Issa plans to push the US Copyright Office to create clear and commonsensical guidelines on what constitutes fair use.

Issa isn't known for being quiet - tech folk admired him when he took a stand against his own party and committee chairman to oppose SOPA. He's also pissed off more than a few people by making some outrageous statements on subjects such as the ATF's failures, the attack on the US consulate in Libya, denying climate change, and other topics. So maybe this is just him grabbing more headlines and blowing more hot air. Or maybe he really can pressure the new Judiciary Chairman to produce something useful.

I confess I'm not holding my breath. But I'm old and cynical about anything useful coming out of Congress these days.

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

November 16, 2012

November 15, 2012

Geist v NPD

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Posted by Alan Wexelblat

Michael Geist has noted that Cartel marketing shill NPD is full of hooey. You may recall that I had something of a rant on last year when NPD managed to buffalo Greg Sandoval. This time Geist calls them on it, directly.

NPD continues to produce shill material for the Cartel, pushing its anti-sharing and anti-customer messaging. Last time I pointed to how they were drawing wrong conclusions from their data; this time Geist points out they can't even do basic math. And of course getting math wrong means you get your message wrong, in this case hilariously the opposite of what they're paid to shill.

The root of the issue is that NPD are trying to show that using P2P systems (presumably to share music) causes one to spend less on music, measured by spending on CDs, downloads, music service subscriptions, and so on. But aside from getting simple addition wrong (by double-counting a subtotal) what Geist points out is that NPD's own data show that P2P users spend roughly 50% more, particularly if you don't accept NPD's dubious assertion that spending on merchandise and concert tickets doesn't really count - because somehow being a fan who downloads music is separable from being a fan who buys tickets and merch.

Yeah, right. When you all get back from fairytale land, let me know. Meantime I continue to be disappointed by any serious journalist who publishes anything NPD produces, except for mockery purposes.

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

November 14, 2012

We Are Not Amused

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Posted by Alan Wexelblat

Apple this week earned itself a monetary slap on the wrist for its apparent disregard of judge's instructions in losing a UK case against Samsung, or so writes Chris Foresman for Ars.

I thought this was interesting in light of Weinstein's call for severe penalties on IP abusers. The UK (both in its High Court and later the Court of Appeal) case of Apple v Samsung has not gone well for Apple, which was ordered to post public notices online that Samsung did not infringe as Apple had alleged in its suits.

Apple, in Foresman's words, "thumbed its nose" at this order and inserted language that made it appear the UK decision was out of line with other court rulings. In response the Court of Appeal published a final order that tightened up the language Apple is required to use, as well as requiring that Apple pay Samsung's legal fees "on an indemnity basis" which apparently means more money than would otherwise have been paid.

It's not clear to me whether the Court of Appeal in the UK can find Apple in contempt and assess further penalties, but clearly they are in no mood to tolerate further mucking around.

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

November 12, 2012

Lauren Weinstein Advocates "The Nuclear Option"

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Posted by Alan Wexelblat

Weinstein, who is probably best known for his long work on privacy and technology, has also had more than a few choice words to say about the sad state of copyright and patent in the US.

In his blog post today he takes on the current high levels of patent and copyright legal activity, the ills of which have been amply documented. He focuses on what he sees as "extortion" in which the threats of patent lawsuits and copyright infringement (DMCA takedown) notices are used to harass, suppress, and otherwise impede actual work and innocent people, as I noted again last month.

In response, Weinstein suggests putting in place fairly draconian penalties for abusers that would raise the cost of misuse of the system, including large fines and other unspecified penalties. Weinstein suggests that some unspecified "courts or other designated third parties" would make determinations as to what penalties and when to invoke them.

As sympathetic as I am to the core idea - abuse of the copyright and patent system ought not to be free and easy - I am concerned that adding more costly litigation and other processes to the mix will not solve anything. Severe penalties ought to serve as a deterrent, but in practice they do not. For example, Apple is facing the possibility of a patent-related injunction that would block sales of major product lines. This does not deter Apple; instead, it just means that more court cases will be dragged out for more years. I imagine that the lawyers involved will be enriched, but probably nobody else. Lest anyone think the Apple case is unique, I remind you that in August, the Lexmark case popped up again. That case has been going on for eight years now, and there is no end in sight.

Protracted litigation is always bad for those without money, which is to say exactly the small-scale entrepreneurs and individual creative types who are suffering the most from the current copyright and patent insanity. A related notion, loser pays, has been proposed and is used on a small-scale basis. It, too, seems not terribly effective but perhaps that's because it needs to be tested at a larger scale. Other solutions, including compulsory licensing and patent invalidation, could also play a part in restoring sanity.

Nobody wants right holders to be stripped entirely of their ability to defend their limited monopolies. Some level of balance needs to be re-established, making abuse costlier without ruining the entire value of a copyright or patent. I just don't think nukes are going to help.

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

November 9, 2012

November 8, 2012

The Patent "Bargain" (in Canada)

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Posted by Alan Wexelblat

Earlier today, Professor Michael Geist blogged about a stunning patent decision by Canada's Supreme Court. By a unanimous vote, the Court said that Pfizer could not hold a patent on its blockbuster Viagra drug because the company had not met the standards for disclosure that a patent requires.

Long-time readers know I hold a special place in my heart for discussion of IP around medicines. The basic idea of patenting is that you get a government-granted monopoly in exchange for disclosing your innovation. The Court held that Pfizer had not fulfilled its part of that bargain and thus its (Canadian) patent was invalid.

Geist says that the Court's decision rested on the notion that the patent claims themselves were not sufficient descriptive to permit a skilled person to replicate the invention that is supposedly disclosed. Patent critics have for many years railed against badly written patent claims and the fact that examiners, particularly in the US, seem willing to let patents go with badly drafted claims. Here we have a clear situation of a high Court rejecting that kind of sloppy (inadequate) patent claims construction.

I don't think that the Canadian decision will affect Pfizer's patents in other countries (e.g. the US) but practically once a generic version of a drug is manufactured it's impossible to stop its trans-national shipment. Gods help us we'll probably see an uptick in spam emails for "generic Viagra" now.

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

November 7, 2012

Marketing by Lawsuit

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Posted by Alan Wexelblat

Earlier today Dan Lyons posted a story to readwrite (nee ReadWriteWeb) updating yet another round in Apple's world-wide patent wars. This $hit has dragged on for the last couple years and is likely to drag on well into 2013 at least.

As Lyons notes, this time Apple lost a round, and the winner VirnetX is asking for major injunctions on sales of Apple products that were found to infringe. The injunction is way more important than the penalty, which amounts to slightly more than the bar tab at your typical corporate board meeting. Given that, Apple will have no choice but to appeal and the mess will drag on.

What made this article interesting to me was Lyons's "What's the Point?" section. He doesn't mince words, calling Apple's strategy "despicable" and asserting that Apple is "us[ing] the legal system as a kind of marketing tool, a way to smear [its] opponents". Apple, he notes, is doing everything in its power - particularly through this barrage of lawsuits - to give itself a public images as a pinnacle of original innovation from which all lesser mortals must copy. Prima facie evidence is its unwillingness to cooperate with a UK judge's order that Apple publicly correct the record after losing a case against Samsung.

I think that makes a lot of sense and provides an answer to the question of why Apple would embark on this crazy campaign in the first place. It's sad and shameful. Fortunately, as Android's market-share numbers continue to climb it's clear that the strategy isn't working. So please, Apple, can we stop now?

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

November 5, 2012

November 1, 2012

David Post on Aero

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Posted by Alan Wexelblat

David Post is at it again. He's one of the best I know at calling attention to IP-relevant cases that aren't getting mainstream attention. Earlier this week he blogged (at Volokh Conspiracy) about a new amicus brief filed in opposition to the Cartel's attempt to shut Aero down.

As I noted in that September blog piece Ralph Oman, a former Register of Copyrights, had filed a bizarre amicus brief in the case, which asserted that

...when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.

In English, this means that anything not expressly permitted should be forbidden (by copyright law at least) and as Post puts it, bluntly, "That is flat-out wrong."

The brief, authored by Post and signed by 34 law professors, argues that Oman is not just incorrect, but is trying to turn the entire principle of law on its head. Congress must, the brief states, balance competing needs but where it has not definitively spoken there is no justification for a court to make a restrictive and one-sided ruling such as Oman advocates that would shut down whole new sectors of industry just because they lack governmental pre-approval.

Post (and the brief) appear to be advocating for a strong form of what I've called the Breyer Test (after Golan) in that he too believes the authorial monopoly is there not so authors can profit but because allowing authors to profit increases "...the creation and the availability of creative works to the public." Now if we could just get Congress to write that into copyright law things might get a whole lot better.

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