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Molinari on IP

I’ve discussed before The Origins of Libertarian IP Abolitionism (see also The Four Historical Phases of IP Abolitionism). Not until fairly recently did liberal and libertarian thinkers start really getting the case against IP right. An exception is Benjamin Tucker, who was anti-IP even back in the late 1800s.1 But as I noted in a Facebook thread, even Tucker’s case against IP seems to have ultimately been somewhat confused. For example, he thought that Spooner’s mistakes on IP2 were connected with what Tucker saw as Spooner’s mistakes on land. That is, Tucker is good on IP, but almost be accident. He believes the argument for IP is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but this argument must be rejected, because this would imply you can own land too. And because he had problems with the ownership of land,3 therefore the principle behind IP must be flawed too.

Most people accept the confused Lockean labor metaphor, and this leads many of them to favor IP.4 Yet Tucker thinks that the problem with the labor metaphor is that it would also imply you can own land. Ugh. If Tucker had realized (as Hume did) that the labor metaphor is just a metaphor and is not even necessary to the Lockean original appropriation argument, he would not have been as able to object to land ownership (since it does not rest on labor ownership), but he could have still rejected IP based on the different nature of scarce resources like land (which are ownable) and nonscarce things like ideas and information (which is not).5

In any case, other, earlier libertarians and proto-libertarians have been confused and/or wrong on IP for a long time, such as Spooner, as noted above, and even  even Proudhon, who otherwise railed against “property” as “theft” (maybe);6 and, in the modern era, Ayn Rand, Andrew Galambos, J. Neil Schulman, Richard Epstein, and others.

I’ve mentioned a few standouts who were heroically anti-IP, beginning with Tucker, the first great anti-IP advocate that I’m aware of, but also including Leonard Read,7 Konkin, LeFevre,8 and McElroy.

Another that can be mentioned is Gustave de Molinari who unfortunately, it turns out, was also bad on IP, as can be seen in the “Second Evening” portion of his 1849 work Les Soirées de la rue Saint-Lazare: entretiens sur les lois économiques et défense de la propriété (Evenings on Saint Lazarus Street: Discussions on Economic Laws and the Defence of Property). As can be seen from the meandering discourse, and the conclusion, it appears Molinari, like the other confused socialists of the time—Spooner, Proudhon (maybe), et al., with the exception of Tucker and a few others—based on confused notions of property and utilitarianism, think that if you support property in material goods, you have to support property in IP. 

 

  1. Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty. []
  2. Tucker on Spooner’s One Flaw []
  3. see Statist “Private Property” Is Theft []
  4. Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors []
  5. See Hume on Intellectual Property and the Problematic “Labor” Metaphor. []
  6.  Proudhon: For Intellectual Monopoly.  []
  7. Leonard Read on Copyright and the Role of Ideas []
  8.  LeFevre on Intellectual Property and the “Ownership of Intangibles”. []
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Wenzel on patents in developing countries

Readers of this site may be aware I have tangled in the past with pro-IP libertarian Robert Wenzel (or whatever his real name is), who has been threatening for years to unbosom onto us his libertarian justification for intellectual property. See, e.g.,

After our debate he seemed to have backed off the IP bandwagon but still on occasion pipes up about it. Case in point is his recent blog post:

Intellectual Property and Economic Development

Rod Hunter writes:

Some activists and government officials get the relationship between strong IP protection and economic growth backwards, claiming that IP rights are an obstacle to development, and thus should not be enforced until after countries achieve high-income status. This attitude is particularly prevalent in India, which recently put trade negotiations with the EU on hold, and it was central to the failure of the Doha Round of global trade talks. As Indian Commerce Minister Anand Sharma put it, “inherent flexibilities must be provided to developing countries.”

But the bottom line is that the ideas protected by IP rights are the dynamo of growth for developed and developing countries alike. Instead of diluting IP rights, developing countries like India should recognize that strengthening IP protection is a prerequisite for attracting the foreign investment that they need to help their economies grow, create jobs, and improve their citizens’ capacity to consume.

Today, IP accounts for much of the value at large companies. One study found that in 2009, across a variety of industries in the US, intellectual capital – patents, copyrights, databases, brands, and organizational knowledge – held a 44% share of firms’ overall market value. Such companies have little desire to put their IP at risk of erosion or outright theft; they want to do business where they know that their IP is safe.

Developing countries have a lot to gain from attracting multinational firms. Such companies bring technologically advanced imports and new management techniques that foster growth in domestic firms, while spurring industrial modernization. They also spawn new local companies that serve as suppliers, thereby boosting employment, augmenting workers’ skills, improving productivity, and increasing government revenue.

Currently, India attracts a mere 2.7% of global spending on research and development; China, with its stronger IP rights, attracts close to 18%; and the US brings in 31%. United Nations data show that India’s stock of foreign direct investment (FDI) was equivalent to just 11.8% of its GDP from 2010 to 2012 – far lower than the developing-economy average of roughly 30%.

According to a new study by the economists Robert Shapiro and Aparna Mathur, if India achieved Chinese levels of IP protection, its annual FDI inflows would increase by 33% annually. In the pharmaceutical sector – which is particularly vulnerable to IP infringement – a stronger IP regime could increase FDI inflows from $1.5 billion this year to $8.3 billion in 2020, with pharmaceutical R&D doubling to $1.3 billion over the same period.

Note:  Rod Hunter was a senior director for international economics on the White House’s National Security Council under President George W. Bush and is presently a senior vice president at the Pharmaceutical Research and Manufacturers of America. He appears to be supporting the views of those who write his paycheck, crony big pharma. That said, I believe the data he presents offers a significant challenge to those who claim that IP protection is always a negative for an economy.

I want to further add that my view on IP protection differs from Hunter’s in that I believe independent discovery should be the criteria for IP protection and not the current system which, for example, in the area of patents grants monopolistic patent protection to only the first inventor.

A few things about this confused post. First, he admits Rod Hunter, whom he quotes, is a corporatist shill for “crony big pharma.” Yet Wenzel still thinks Hunter’s post supports him: “That said, I believe the data he presents offers a significant challenge to those who claim that IP protection is always a negative for an economy.” [click to continue…]

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From ArsTechnica:

 

“Happy Birthday” copyright defense: Those “words” and “text” are ours

Even if the owner wasn’t first, “Copyright law requires originality, not novelty.”

by  – Feb 11 2014, 10:15pm CST

There may be no song more widely sung in America than “Happy Birthday,” but it isn’t free to sing. Warner/Chappell music licensing, which has long claimed copyright to the words, typically dings filmmakers and TV producers a few thousand bucks for a “synchronization license” any time the song is used in video. Warner reported that by the 1990s the “Happy Birthday” licensing enterprise was pulling in upwards of $2 million annually.

In June, a filmmaker who paid $1,500 to use the song in a documentary (called “Happy Birthday”)challenged Warner/Chappell in court. The filmmaker’s lawyers argued that the 1935 copyright isn’t valid—at most, it covers a particular piano arrangement and a second verse to Happy Birthday which has no commercial value. The melody has been around since 1893, they say, and the “Happy Birthday to You” lyrics were in wide use by the early 1900s. The plaintiffs hoped to form a class action and make Warner pay back everyone who’s paid a license fee since mid-2009.

status update filed in court on Monday offers a first glimpse of some of the defenses Warner may use. In a brief statement, first mentioned by The Hollywood Reporter, Warner lawyers explain it’s on the plaintiffs to prove that the 1935 copyright registration “was not intended to cover the lyrics to Happy Birthday to You.”

Even if the plaintiffs show that the lyrics were published elsewhere, “this would not show that the author of the lyrics copyrighted under certificate E51990 copied those lyrics from somewhere else,” argue Warner’s lawyers. “Copyright law requires originality, not novelty.”

The burden is on the plaintiffs “to disprove the validity of Warner/Chappell’s copyright and the facts stated in the registration,” argues the defense. And that registration clearly references “words” and “text,” which they believe is the traditional “Happy Birthday” verse. Warner’s lawyers write:

Certificate E51990 applies on its face to a “published musical composition” entitled “Happy Birthday to You” and the listing under the byline is as follows: “By Mildred J. Hill, arr. by Preston Ware Orem;* pf., with words.” (Emphasis added.) The certificate further states: “(© is claimed on arrangement as easy piano solo with text).” (Emphasis added.)… All of this, as well as the validity of the copyright, is prima facie presumed true in this litigation.

The plaintiffs are claiming that the words were published in a variety of formats pre-1935. The amended complaint filed in December lays out the most detailed version of their argument.

“Even though the lyrics to Happy Birthday to You and the song Happy Birthday to You had not been fixed in a tangible medium of expression, the public began singing Happy Birthday to You no later than the early 1900s,” write the filmmaker’s lawyers.

The lyrics were published as lyrics in a Methodist Episcopal Church song book in 1911, which did not attribute ownership or identify any copyright for the song. An Indiana educator’s guidebook described children singing the words “happy birthday to you” as early as 1901, although it did not print lyrics. The plaintiffs’ complaint suggests that pre-1935 of the lyrics were, in fact, abundant: “By 1912, various companies (such as Cable Company Chicago) had begun producing unauthorized printings of sheet music which included the song known today as Happy Birthday (i.e., the melody of Good Morning to You with the lyrics changed to those of Happy Birthday).”

The parties have agreed to a schedule that has discovery on the copyright issue continuing through September of this year. Once they collect the evidence, the two sides will submit motions arguing their case in November. The copyright validity issue will apparently be decided on the papers, as the status update does not include dates for a trial or a pre-trial conference.

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Slashdot: Open Source — the Last Patent Defense?

From Slashdot. For related commentary, see:

 

 

Open Source — the Last Patent Defense?

Soulskill posted yesterday | from dp619

Patents51

dp619 writes “A developer might fly under the patent troll radar until she makes it big, and then it’s usually open season. Apple just shared that it has faced off 92 lawsuits over just 3 years. Even Google’s ad business is at risk. FOSS attorney Heather Meeker has blogged at the Outercurve Foundation on what to consider and what to learn if you’re ever sued for patent infringement. ‘There have been at least two cases where defendants have successfully used open source license enforcement as a defensive tactic in a patent lawsuit. … In both these cases, the patent plaintiff was using open source software of the defendant, and the patent defendant discovered a violation of the applicable open source license that it used to turn the tables on the plaintiff. In this way, open source license enforcement can be a substitute for a more traditional retaliatory patent claim.’ Meeker also examines how provisions of open source licenses can deflate a patent troll’s litigation and shift the balance in favor of the defense.”

from the distributed-under-the-cover-your-backside-license-v2 dept.

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From Mike Masnick at Techdirt:

Steven Tyler, Don Henley And Others Join Forces To Fight A Compulsory License For Remixes

from the legacy-artists-attempt-to-control-how-culture-works dept

The US Dept. of Commerce has been collecting input on IP issues through its Internet Policy Task Force (the commenting period wrapped up Dec. 5, 2013). One of the suggestions it sought input on was the creation of a compulsory license that would allow artists to remix the creations of others by simply paying a flat fee, much in the way cover versions are handled now.

The response has come back from several artists and entities (via some “late comments”) who see remixes (and mashups, etc.) the way they see most derivative works — as something that shouldn’t be allowed without the originator’s permission.

In a letter signed by Steven Tyler of Aerosmith and music attorney Dina LaPolt (and echoed by like minded artists like Don Henley, Joe Walsh, Sting, Deadmau5 [somewhat disappointing] and entities like BMI, SESCAC, ASCAP, etc.), LaPolt details their opposition to streamlined remix licensing. The rationale propelling this letter is nothing short of bizarre.

First off, LaPolt asserts that artists should be able to control use of their music.

Approval is by far the most important right that an artist possesses… If an artist or songwriter does not want his or her music used in a certain way, no amount of money will change his or her mind.

Artists can, and should continue to be able to, deny a use that they do not agree with. For one, an artist should be able to turn down uses in connection with messages that the artist finds objectionable…

LaPolt’s parade of horribles follows this assertion. Melissa Etheridge remixed with homophobic slurs. Ted Nugent coupled with anti-gun sentiments. Sting’s soulful voice draped over a National Beef Council ad. (The last one I made up.) The possibilities are endless.

But this concern is essentially meaningless. An unlicensed remix can still do all these things. The only difference is that the original artist goes unpaid. There’s only one way to control how people will use your creation, and that’s to lock it away unreleased. Rejecting a compulsory license simply cuts off a potential revenue stream, and instead of protecting artists from derivative works they don’t approve of, it simply ensures they’ll never be paid for the derivative works that will be created without their explicit blessing.

LaPolt seems to believe that artists will actually do the only thing that can protect them from unsavory derivative works.

Without a doubt, requiring a compulsory license for derivatives would discourage many artists from releasing their work in the first place. Steven and the other artists who have expressed support for our comments have stated that they probably would have withheld some of their work if they knew that one day they would be required to give up their right to approve derivative uses.

“Would probably have withheld some of their work.” That’s hardly a powerful supporting statement, especially when reported secondhand. I have serious doubts any of these artists would have “withheld” any creations because they were worried someone might offensively remix them. Artists create, and stashing it in the archives isn’t nearly as satisfying as releasing it to the public, even if there’s a small chance someone might crank out an unlicensed derivative work that offends their sensibilities. (Not only that, but considering the roster of supporting voices are all major label artists, it’s highly unlikely the decision to release or not release would have been completely in their hands.)

Moving on, LaPolt insists there’s already a “robust marketplace” for remixes, by which she must mean there’s a limited marketplace that pays handsomely for a select few artists.

The thing is: LaPolt and her co-signers can’t prevent derivative works. An vibrant mashup scene is nearing two decades of doing whatever it wants with the works of others. These artists know they can’t sell what they’ve made, but they’ve found other ways (donations, live gigs, DJ gigs, themed events) to turn entirely derivative works into a viable form of income. Any DJ worth his salt has dropped dubplates and white labels that contain unlicensed mixes into their DJ sets. And they’ve seen others do the same with their works, spinning off their own remixes and mashups, all without permission. (And returned the favor by including these unlicensed remixes of their own work into their DJ sets.) There’s little to no evidence out there that suggests DJ/producers are shoving new tracks into the sock drawer just to keep thousands of bedroom producers from cranking out terrible, unlicensed remixes.

Artists fighting against this sort of license are not only eliminating a revenue stream, they’re ignoring the history of creative works. The phrase “everything is a remix” isn’t just something conjured out of thin air and wishful thinking. Culture builds on culture and not every derivative/remix is going to make the original artists happy. But that’s the way it goes. The only way to prevent reinvention is to lock the original invention up and resign it the self-imposed obscurity of the studio vault. That’s the ultimate veto and, compulsory license or no, that’s the only way to prevent the inevitable. Fighting this just leaves artists with the relatively worthless power to say “no.” 

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Knapp: The Problem Isn’t “Patent Trolls”

Finally, a solid piece on patents. Tom Knapp writing at Counterpunch. Most IP critics are not against patent or copyright as such, and focus on its “abuses” or “excesses,” and on the need for “reform.” Knapp goes right for the jugular. It’s sad that more libertarians nowadays do not have a principled opposition to IP. At least the Austrian-anarchists and the left-libertarians are very, very good on this issue. Not so much the utilitarians and minarchists.

***

The Problem Isn’t “Patent Trolls”

by THOMAS L. KNAPP

“As Apple prepares to defend itself against a multi-billion dollar patent infringement claim in Europe,” reports Apple Insider, “the company has aligned with rival Google in asking the U.S. Supreme Court to allow stiffer penalties for patent trolls who bring frivolous lawsuits.”

Well, it’s about time. But the problem with Apple’s position is that there’s no such thing as a patent lawsuit … or for that matter, a patent … that isn’t frivolous (“not serious in content or attitude or behavior”). It’s true that patent litigation has become more and more visibly silly over the last few years, but as a major player in the silliness (having, among other idiocies, applied for — and received! — a patent on rectangular devices with rounded corners) Apple doesn’t have much standing to complain about that. There’s not enough room in this column to really go into Apple’s other “intellectual property” howlers, but let’s name two:

Their flagship Macintosh line began as a lock, stock and barrel copy, from user interface to peripherals (ever heard of a “mouse?”), of Xerox’s 1981 Star terminal system. And they briefly sued (before settling with) Amazon over “rights” to the words “app store.” So please, let us break out the world’s smallest violin  for Apple’s angst over “patent trolls.”

Even if patents actually accomplished their advertised purpose — “securing for limited Times to … Inventors the exclusive Right to their … Discoveries,” as the US Constitution puts it — they’d be a very bad idea. The claim that one can own an idea is silly on its face, and not a claim that anyone would pay the slightest mind to were it not enforced at gunpoint by the state.

But the advertised purpose of patents is not their actual purpose

Their actual purpose is to restrain competition and limit innovation so as to provide economic advantage — monopoly pricing power, in fact — to established firms who, by virtue of their ability to pay off (pardon my indelicate language; I believe the word I’m looking for is “lobby”) politicians, bureaucrats and judges, can thereby indulge their desire avoid market competition on price or quality.

Decades ago, I worked for a well-known boat manufacturer. One summer, I spent several weeks as the “menial tasks” guy — hauling boats and trailers back and forth for modifications, that kind of thing — for the company’s newly hired boat designer as he worked to assemble a prototype “different enough” from the last boat he’d designed (for another firm) to avoid (or at least successfully fight) “infringement” claims. I don’t know how much this “patent compliance” runaround (and any ensuing litigation) added to the cost of each unit of the new boat, but there’s no doubt that it did affect the retail price.

In other words, patents are indirect taxes on consumers. Patent monopolists can charge higher prices because government suppresses their would-be competitors for them. And if those competitors do manage to bring products to market, those products are also more expensive because they’ve had to spend money on patent licensing, or on patent research to avoid “infringement,” or on insurance to protect themselves against patent litigation.

Apple’s complaint, in its essentials, is that patent “trolls” just buy up patent “rights,” then search for infringement to cash in on, rather than going to the trouble of making real products. But why shouldn’t they do that? If, as Apple would have us believe, patents are a legitimate market instrument, then the “trolls” are just exploiting that instrument more efficiently than Apple cares to, right?

The problem isn’t “patent trolls.” The problem is patents.

Thomas L. Knapp is Senior News Analyst at the Center for a Stateless Society (c4ss.org).

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Blackberry, victim of patent trolls, asks for more pain

Ayn Rand thought that the producers should not voluntarily subsidize the parasites who attack them for their virtues. So she has the men of ability go on strike against the state and the parasitical class in her famous novel Atlas. Some mock Atlas and Rand’s other fictional themes as being caricatures and unrealistic.

Yet here we have the spectre of the former CEO of Canada’s Blackberry (RIM), Jim Balsillie, urging stronger IP (patent and copyright) protection. This is a company now going downhill fast, one that was once at the top of its game. And one that was the victim of a $623 million dollar suit brought by US patent troll NTP.

On the face of it this is an example of irrational or craven leaders caving in to the extortion racket that is IP. Yet this will not fit the Randian story, because, of course, Rand supported IP (in one of her two greatest missteps; the other being her support of the state and the US hegemony and Constitution).

So here we have a former CEO of a company that was penalized over a billion dollars due to American-foisted patent law…. asking for patent law to be strengthened and increased. How perverse, sallow, corrupt, clueless, and unprincipled. Horrible. Shame on you, Balsillie. And shame on all libertarians who are in favor of patent and copyright. Shame on you.

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Writer Naomi Novik explains copyright to Congress

From Boing Boing. This proposal to expand fair use would reduce the damage done by copyright. And for this reason I can’t see Congress doing it. We have the horrible copyright system that is in place now precisely because of the lobbying pressure by Big Content and they will not stand for an improvement in the fair use exception to copyright law, since this means a corresponding reduction in the scope of copyright protection. Copyright protection always increases legislatively over time, per Higgs’s ratchet effect. It does not retreat. Still, we can hope….

***

Writer Naomi Novik explains copyright to Congress

 at 6:00 pm Sun, Feb 2, 2014

Naomi Novik isn’t just a talented author (she won the John W Campbell Award for best new writer in 2007 on the strength of her fabulous Temeraire novels, which retell the Napoleonic wars with dragons providing air-support!), she’s also a profound thinker on the questions of reuse, remixing, intellectual freedom and copyright.

Last week she gave testimony (PDF) to the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet that described the way that creators rely on their ability to remix in order to create new and original works.

One thing I love about Novik is her intellectual honesty and her willingness to cut through the self-serving, romantic mythology of the wholly original creator, and to both acknowledge and celebrate the fact that her originality comes about by taking the works that others created before her and adapting them through her own artistic process, “Original work, work that stands alone, doesn’t just pop up out of nowhere. It is at the end of a natural spectrum of transformation.”

I also appreciated her strong arguments as licensing as a substitute for robust fair use: “On the purely practical level, the vast majority of remix artists doing non-commercial work simply don’t have any of the resources to get a license — not money, not time, not access.”

Novik’s testimony is admirably summarized by Dr Matthew Rimmer in this Techdirt post. Rimmer is a global expert in fair use and copyright, and he highlights many of the most salient features of Novik’s testimony. [click to continue…]

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Cato vs. Public Citizen on IP and the TPP

Adapted from a FB post:

I’ve mentioned before that Cato scholars have inexplicably come out in FAVOR of the horrendous, fascist, IP-pushing TPP, in an article by Daniel Ikenson.

People have told me that just because Cato has one scholar in favor of something does not mean it’s an institutional position. MMhhmm.

Check out this Democracy Now “debate” about the TPP, between Bill Watson, a trade policy analyst at the Cato Institute, and Lori Wallach, director of Public Citizen’s Global Trade Watch (TPP Exposed: WikiLeaks Publishes Secret Trade Text to Rewrite Copyright Laws, Limit Internet Freedom).

Now what is disheartening for the libertarian listening to this debate (which starts around 11:00) is that almost everything Wallach says is correct and on the libertarian side. She notes that the TPP is not about free trade at all; only a small number of its (still secret) chapters even purport to deal with free trade; the major portion leaked so far is on IP and is pure American company special interest rent-seeking: attempting to lock stronger and longer copyright and patent law into US law via treaty and to export it to the rest of the world; that is, to increase the monopoly privilege of patent and copyright, to reduce internet and artistic freedom, to increase the prices of pharmaceuticals, etc. She is 100% correct to oppose the TPP on her anti-IP grounds, and she is right to condemn patent and copyright as monopolies that benefit special interests and harm the public and consumers. Inexplicably, Cato’s Bill Watson defends the TPP and fast track even though he seems to agree with Wallach that the IP chapter is “problematic” (he nowhere seems to condemn it as monopoly and bad, in as clear terms as she does, however).

Utterly bizarre, when we true free-trade, anti-IP libertarians, find more in common with “Public Citizen’s Global Trade Watch” than with an allegedly free-trade, libertarian organization.

People often tell me that I should not harp on IP so much, or make it a litmus test; that even if I am right about IP, reasonable libertarians can disagree. Well this is an example of why it’s important to get this very important issue right. It is in fact one of the most important libertarian issues, and getting this issue wrong leads people to error on other important issues. As an example, a few years back, several Cato scholars explicitly opposed free trade in drug reimportation in the name of upholding American companies’ pharmaceutical patent monopoly pricing model; unbelievable (see footnote 1 of http://c4sif.org/2011/09/objectivist-worried-obamacare-may-weaken-patent-rights/#footnote_1_2629; footnote 4 of http://c4sif.org/2011/08/pro-ip-libertarians-upset-about-ftc-poaching-patent-turf/#footnote_3_2434).

Cato’s forums on IP are invariably about IP reform. Only one time can I remember someone for IP abolition, which was Tom Bell, and that (IIRC) only on the issue of copyright (not patent). Their former scholar Tom Palmer was one of the early IP abolitionists but his work was never highlighted there and indeed he seemed to backpeddle a bit in later years on pharmaceutical patents (as mentioned here: http://mises.org/daily/3682: see: http://tomgpalmer.com/2005/09/19/alive-thanks-to-pharmaceutical-profits/#comment-3642 and http://tomgpalmer.com/2005/06/10/healthy-profits-to-help-sick-people/#comment-2619 )

One wonders if Cato has lots of pro-patent big business/big pharma donors, and the quasi/former Objectivists in their ranks which leads them to continually favor IP and downplay the IP abolition case. Sad when libertarian groups are bad on this issue (http://c4sif.org/2013/09/canadas-free-market-fraser-institute-urges-strengthen-intellectual-property-law/). It’s as bad as being bad on taxes, slavery, free trade, the drug war. Down with IP.

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Lessig on the Anniversary of Aaron’s Swartz Death

Law professor Lawrence Lessig just penned this little note about Aaron Swartz on Huffington PostAaron’s Walk: The New Hampshire Rebellion 

A friend of Social and Internet Activist Aaron Swartz describes the movement his life has inspired:

A year ago tomorrow, Aaron Swartz left. He had wound us all up, pointed us in a million directions, we were all working as hard as we could, moving things forward. And then he was gone.

Forever, all of us close to him will wonder whether there was more we could have done to keep him. We hadn’t worked hard enough to help him. He was alone, surrounded by a million friends. And now, even now, forever it will be this now, a million friends are forever alone, having lost him.

I wanted to find a way to mark this day. I wanted to feel it, as physically painful as it was emotionally painful one year ago, and every moment since. So I am marking it with the cause that he convinced me to take up seven years ago and which I am certain he wanted to make his legacy too.

On Saturday, we begin a walk across the state of New Hampshire, to launch a campaign to bring about an end to the system of corruption that we believe infects DC. This is the New Hampshire Rebellion.

I agree that Swartz’s death—as a result of persecution by the state and its copyright law—was a terrible tragedy. But people who feel this way ought to also oppose to the state system of copyright law that murdered Swartz. Lessig does not. He is against the “excesses” of copyright, but he is not against it in principle. (See Lessig on Copyright Abolitionist “Extremists”.) As I noted previously:

We enemies of copyright are understandably upset by the Aaron Swartz tragedy. He was an innocent, heroic Internet freedom activist. He downloaded some files from JSTOR—not a real crime by any reasonable standard of justice—and then his Javert-like federal persecutor hounded him and threatened him with decades in a federal cage and a lifetime as a federal felon. Faced with the onslaught of our Kafkaesque “justice” system, Swartz ended his life, in a sad yet heroic act of defiance. I can’t say “good for him” because I weep for his anguish, his torment. But he gave the feds the finger, in his own way. (Federal copyright persecution leads RSS co-author and anti-SOPA activist Aaron Swartz to kill himself.)

This tragedy was caused not by “overzealous” prosecutors but by copyright law itself. Without copyright law, Swartz’s actions would not even have been a breach of contract, much less a crime.

So it is a bit galling to see people bemoaning the Swartz tragedy while still supporting copyright law. Sure, most of them support copyright “reform,” but they do not call for its abolition. Case in point: Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”. Ah, I see. “Some punishment” was “appropriate”—and we need “some” copyright, and thus, “some” penalties—but this crazy prosecutor went ”too far”! She was unreasonable. It’s her fault! If only she had interpreted the evil copyright statute in a more reasonable way.

(See: The tepid mainstream “defenses” of Aaron SwartzTim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”.)

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Copyright Kills “Men at Work” Flautist, Greg Ham

I’ve noted before that “There are No Good Arguments for Intellectual Property”. In “Absurd Arguments for IP” I collect some of the more ridiculous ones I’ve come across. Try this one, from Independent Institute (!) scholar Willliam Shughart:

“It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.”

(The pro-IP Shughart also wrote: “To paraphrase the late economist, John Robinson, patents and copyrights slow down the diffusion of new ideas for a reason, to insure there will be more new ideas to diffuse.”)

So. The lack of copyright killed Dickens! Well two can play at that game. It appears copyright helped contributed to the death of Greg Ham, the flautist for the famous Men at Work song “Down Under.” From Wikipedia:

Copyright lawsuit

In 2008 on the ABC-TV quiz show Spicks and Specks the question was posed “What children’s song is contained in the song Down Under?” resulting in phone calls and emails to Larrikin Music the next day.[20]Larrikin Music subsequently decided to take legal action against the songs writers Colin Hay and Ron Strykert.

Sections of the flute part of the recording of the song were found to be based on the children’s song “Kookaburra“, written in 1932 by Marion Sinclair. Sinclair died in 1988[4] and the rights to the Kookaburra song were deemed to have been transferred to publisher Larrikin Music on 21 March 1990.[21] In the United States, the rights are administered by Music Sales Corporation in New York City.

In June 2009, 28 years after the release of the recording, Larrikin Music sued Men At Work for copyright infringement, alleging that part of the flute riff of “Down Under” was copied from “Kookaburra”. The counsel for the band’s record label and publishing company (Sony BMG Music Entertainment and EMI Songs Australia) claimed that, based on the agreement under which the song was written, the copyright was actually held by the Girl Guides Association.[22][23] On 30 July, Justice Peter Jacobson of the Federal Court of Australia made a preliminary ruling that Larrikin did own copyright on the song, but the issue of whether or not Hay and Strykert had plagiarised the riff was set aside to be determined at a later date.[24]

On 4 February 2010, Justice Jacobson ruled that Larrikin’s copyright had been infringed because “Down Under” reproduced “a substantial part of Kookaburra“.[25]

When asked how much Larrikin would be seeking in damages, Larrikin’s lawyer Adam Simpson replied: “anything from what we’ve claimed, which is between 40 and 60 per cent, and what they suggest, which is considerably less.”[26][27][28] In court, Larrikin’s principal Norman Lurie gave the opinion that, had the parties negotiated a licence at the outset as willing parties, the royalties would have been between 25 and 50 per cent.[29] On 6 July 2010, Justice Jacobson handed down a decision that Larrikin receive 5% of royalties from 2002.[29][30] In October 2011 the band lost its final court bid when the High Court of Australiarefused to hear an appeal.[31]

Until this high-profile case, “Kookaburra”‘s standing as a traditional song combined with the lack of visible policing of the song’s rights by its composer had led to the general public perception that the song was within the public domain.[32][33]

The revelation of “Kookaburra”‘s copyright status, and more-so the pursuit of royalties from it, has generated a negative response among sections of the Australian public.[34][35][36][37] In response to unsourced speculation of a Welsh connection, Dr Rhidian Griffiths pointed out that the Welsh words to the tune were published in 1989 and musicologist Phyllis Kinney stated neither the song’s metre nor its lines were typical Welsh.[33]

Since the verdict, Colin Hay has continued to insist that any plagiarism was wholly unintentional. He says that when the song was originally written in 1978, it did not have the musical passage in question, and that it was not until two years later, during a jam rehearsal session, that flautist Greg Ham improvised the riff, perhaps subconsciously recalling “Kookaburra”. Hay has also added that Ham and the other members of the band were under the influence of marijuana during that particular rehearsal. Greg Ham was found dead in Melbourne on 19 April 2012. In the months before his death, Ham had been despondent over the verdict, and convinced that “the only thing people will remember me for” would be the plagiarism conviction.

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I’ve mentioned before how patent and copyright distort innovation, technology, the market, culture, and the like (e.g., The Effects of Patent and Copyright on Hollywood MoviesLeveraging IP; Amazingly, Spider-Man Pirates HimselfHow Copyright Killed Superboy and Captain Marvel).

Last night I was at my brother-in-law’s house and was browsing through his omnibus edition of Douglas Adams’s Hitchhikers Guide to the Galaxy, which includes not only the first four novels, which I read, but also two later stories, which I had not, and an introduction. The introduction is hilarious, and in typical Adams style. Adams strains to explain all the various versions of this series, from the radio series to UK and American editions of books and so on, and their various inconsistencies. One comment stood out to me:

In the fall of 1979, the first Hitchhiker book was published in England, called The Hitchhiker’s Guide to the Galaxy. It was a substantially expanded version of the first four episodes of the radio series, in which some of the characters behaved in entirely different ways and others behaved in exactly the same ways but for entirely different reasons, which amounts to the same thing but saves rewriting the dialogue.

At roughly the same time a double record album was released, which  was, by contrast, a slightly contracted version of the first four episodes of the radio series. These were not the recordings that were originally broadcast but wholly new recordings of substantially the same scripts. This was done because we had used music off gramophone records as incidental music for the series, which is fine on radio, but makes commercial release impossible.

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Antitrust law is as thoroughly unlibertarian as IP law is, though my guess is patent and copyright do more damage to property rights, freedom, the free market, and the economy.1 The perverse thing is that the state helps to create monopolies by its various policies (patent, copyright, FDA regulations) and then it turns around and uses its antitrust regulations to punish companies for acquiring these monopolies.2 And, also perversely, the use of antitrust law itself can limit the abilities of private actors to deal privately with “piracy,” competition and knockoffs, which then supports the argument that IP is needed (and then the IP rights, once granted, get the companies in trouble with antitrust law if these IP monopoly rights are “abused”). (As an example: antitrust law has been used against the fashion industry, and the movie chain system, making it harder for these industries to engage in private measures in response to knockoffs and “piracy”.)

And yet, as bad as antitrust is, and as schizo as federal policy on antitrust and IP is, there are times when one can almost support the use of antitrust. Case in point is an example I mentioned in a previous post, Price Controls, Antitrust, and Patents, where I suggested that use of price controls and/or antitrust reasons to limit the monopoly prices charged by patentees and/or to restrict their patent monopoly grant, might be a not-bad result.

And here we have a law professor observing that the “six strikes” arrangement to enforce copyright might itself violate antitrust law, since it goes beyond the rights copyright law itself gives holders, has due process issues, and so on. I have no problem with the copyright enforcement rights of Big Media being restricted, even if odious antitrust principles are used to do it. Of course a simpler and better solution would be to get rid of state-granted monopolies like copyright and patent in the first place, leaving the state with no good excuse for needing antitrust law either…

Op-ed: Imminent “six strikes” Copyright Alert System needs antitrust scrutiny

Internet providers will soon deliver “strikes” to US subscribers accused of …

by Sean M. Flaim Mar 18 2012, 8:00pm CDT


Five more before something Really Bad happens.

With the “Copyright Alert System” going into operation over the next few months, major American ISPs will start sending out “strikes” to users accused of infringing copyrights online. Sean Flaim, who has just completed extensive research on the topic, argues that the system has real benefits—but it needs close supervision. The opinions expressed here do not necessarily represent those of Ars Technica.

Eight months ago, content owners and Internet service providers (ISPs) agreed to the Copyright Alert System, a “six-strike” plan to reduce copyright infringement by Internet users. Under the system, ISPs will soon send educational alerts, hijack browsers, and perhaps even slow/temporarily block the Internet service of users accused of online infringement (as identified by content owners). At the time it was announced, some speculated that the proposed system might not be legal under the antitrust laws. Were they right?

Recently, I completed a draft research paper where I explored the potential antitrust aspects of “six strikes” even further. There, I concluded that while the system has some promise for reducing online infringement, its private nature, combined with a lack of government oversight, raises significant antitrust concerns. It will require careful monitoring by regulators.

Read more>>

  1. See, e.g., “Copyright and Free Trade; Patents and Censorship”; Death by Copyright-IP Fascist Police State Acronym”; SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright,” Where does IP Rank Among the Worst State Laws?” ; “Should Copyright Be Allowed to Override Speech Rights?”; “Copyright is Unconstitutional”; “Patent vs. Copyright: Which is Worse?”; “Costs of the Patent System Revisited.   []
  2. The Schizo Feds: Patent Monopolies and the FTC.”  []
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One of the authors of this recently-published paper, “Generation–C: creative consumers in a world of intellectual property rights,” sent me a copy (by Jan H. Kietzmann & Ian Angell, International Journal of Technology Marketing, December 09, 2013), which has an interesting thesis. From the Abstract:

Generation–C is a generational movement consisting of creative consumers, those who increasingly modify proprietary offerings, and of members of society who in turn use the developments of these creative consumers. It is argued that their respective activities, creating and using modified products, are carried out by an increasing number of people, everyday, without any moral and legal considerations. The resulting controversies associated with existing intellectual property rights are discussed, and suggestions put forward that the future can only bring conflict if such legislation is not changed so that derivative innovations are allowed to flourish. The article concludes with important messages to organisations, intellectual property rights lawyers, owners of property rights, governments and politicians, suggesting they reconsider their respective stances for the good of society.

From the Conclusion:

In this article, we introduced Generation-C as a generational movement, consisting of everyone who embraces all things digital: creative consumers and their respective audiences. We argue that their combined activities, modifying offerings and consuming these, are signs of the times. The trend towards increasing curiosity and creativity in a community that values openness and sharing, and acts without moral considerations or deliberations of IPR, is gaining momentum, and the future can only bring conflict if IPR legislation is not changed so that derivative innovations are allowed to flourish.

The paper cites two of my earlier articles, Against Intellectual Property (JLS, 2001), and Do patents and copyrights undermine private property?: YesInsight magazine, May 21, 2001 (local copy) (an audio version is in my podcast feed).

The file is available here, by permission: kietzmann-angell_generation–C-creative-consumers-world-intellectual-property-rights-2013

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.