Ars Technica has a brief article on the outspoken Federal Appeals Court Judge Richard Posner, who has been increasingly taking the U.S. Intellectual Property laws to public task. They make particulat reference to the joint blog written by Judge Posner and University of Chicago Economics professor Gary Becker.
In a recent blog entry, Posner tackles the question of whether current copyright and patent laws restrict competition and creativity excessively. In his post, Judge Posner differentiates the propriety of robust patent protection in such R&D intensive fields a pharmaceuticals as opposed to the fast-moving and interative developments that prevail in the software world.
Posner also advocates for reform in the copyright realm as well, with particualy cogent arguments for extension and clarification of fair-use rights, with an eye towards encouraging creativity and academic research. In this field he again uses an economic lens in which he views resource intensive undertakings such as motion pictures very differently from academic books and articles. Between these two extremes he sees a continuum across which the economic utility of protection varies.
Overlaying his economic analysis of the utility (and propriety) of copyright protection is his conclusion that both the excessiveness of the existing 70 year term of the protection beyond the author’s death and negative effects of the many courts’ very narrow interpretation of “fair use” rights.
Both the Ars Technica article and the Posner bog post are well worth reading. While neither digs very deeply or rigorously into the underlying legal and economic arguments at play, Posner’s positions are certainly thought-provoking. If nothing else they represent a cogent call for Congress and the courts to re-examine our intellectual property laws to promote the Constitutional mandate of establishing laws intended to promote the advancement of the arts and sciences: a purpose from which the current IP regime is increasingly straying.
A classic case of the tension between rights holders and technology companies. On one hand the technology companies (in many cases) enable greater uptake of the content. On the other, rights holders often see technology companies monetizing their content without and direct benefit to the rights holder. (Pinterest and Google are two of the big battlegrounds in this fight.) There is merit on both sides of this fight, and it is clear that not only do copyright laws need to evolve to logically deal with this tension, but so do the business models on both sides. There is not a clear new paradigm that works for both sides yet, but if one doesn’t arrive soon, there will be an awful lot of unnecessary casualties on both sides of this battle.
Google (s GOOG) has launched a broadside against a proposed law in Germany that would see search engines forced to pay license fees for linking people to news stories.
Well, actually that’s slightly inaccurate: the draft law would make search engines pay for reproducing newspapers’ headlines and first paragraphs. So, take those away and the links are fine. Even if nobody will have the faintest idea what they’re linking to.
Google’s North Europe communications chief, Kay Oberbeck, sounded off about the issue this morning in a guest post for a German press agency. That was in German, of course, so I got him to vent in English as well:
“Nobody sees a real reason why this should be implemented,” he said. “It’s really harmful, not just for users who wouldn’t find as much information as they find now, but such a law is also not justified for economic reasons or…
While not necessarily fully indicative of the judge’s thought process to date in the trial, the fact that her is permitting amicus briefs from the pro-“fair use” camp is at least somewhat telling. It will certainly be interesting to see where this trial comes out!
This piece offers a profile on start-up called ReDigi which applies a novel system to allow its customers to “resell” digital music. Using digital fingerprinting technology, ReDigi’s user download software which verifies (a) that the music the user is seeking to sell is a legitimately purchased track and (b) that the file is erased not only form the user’s computer but also from all synced devices.
This approach, not surprisingly, is still drawing the ire of RIAA and similar groups. It will be interesting to see whether ReDigi’s model survives legal scrutiny.
Stanford has just wrapped up a conference on Intellectual Property that seems to have had some very interesting and notable highlights. Head over to the GigaOm article for a bit more detail (and here for the full agenda), but here are a few of the highlights of interest:
University of Colorado Professor Paul Ohm is headed off to join the FTC, but he stopped by the conference and gave a presentation that made it clear that he intends to do more than a but of arm-twisting in Washington to get companies to live up to their privacy promises.
Another presentation discussed unauthorized distribution of copyrighted content though the lens of the porn industries current frustrations. It looks like maybe Big Porn is starting to realize that the litigation tactic is a loosing battle, as they begin to experiment with shifts towards making “experience goods” like live chats and other engagement oriented products.
Collen Chien of U.C. Santa Clara presented on the current patent mess in the mobile device industry and hos the historic patent epidemics over farmer’s tools and railroad technology in the late 19th and early 20th centuries may portend much needed reform in our current patent morass.
Professor Howard Abrams discusses the U.S. Supreme Court of Golan v. Holder from earlier this year in which the Court upheld Congress’ rights to retroactively extend copyright terms. The case when on to indicate that congress can extend copyright protection to previously public domain works and to state that First Amendment is not implicated by these actions, as these works were available in the marketplace and thus represented commercial speech.
An interesting (and undoubtedly smart) move by Google. This is part of their campaign to at least create the image that they are cooperating with the content industry and not “enabling piracy” as rights holders say. I personally disagree that a search engine actually enables piracy by simply reporting results, but rights holders seem to be getting at least some traction in Congress. As such, Google sees it as smart to try to stay ahead of potential legislation and, possibly, to argue that new proposed legislation which would otherwise effect it is not really necessary.
Jack Daniel’s has some smart lawyers. Rather than trying to bludgeon Patrick Wensink, who’s latest novel’s book jacket bears a more-than-striking resemblance to the storied whiskey bottle, the “cease and desist” letter sent by the distiller’s lawyers reinforces the brand and alternately thanks the author and appeals to his sensibilities as a fellow owner of valuable intellectual property. They even go so far as to offer to help defray some of the costs of removing the infringing book covers from the stream of commerce.
Rather than turning Wensink into an enemy, they essentially appeal to reason and seek to increase brand loyalty, rather than diminishing it with aggressive, threatening positions.
Kudos to Jack Daniel’s and their clever attorneys for turning a challenge into an opportunity, rather than just one more fight over IP.