This Week in Law discusses Patent Reform, OWS

Last week I was a Guest panelist on This Week in Law, Episode 133, entitled “Beyonce, Bad Laws, and Breastaurants.” The two hosts and fellow guest panelist were all lawyers. We had a wide-ranging two-hour discussion about a variety of legal and policy matters, including a number of IP problems covering patent, copyright, trademark, and even trade secret. We also discussed the Occupy Wall Street movement, Apple’s use of IP to squelch clones and competition, copyright threats against Beyonce for her dance moves, and many others as indicated by the links on the episode’s show notes.

The video is below; it’s also on the TWiL page for this episode; you can also subscribe to the audio or video podcast for this show; here’s their FaceBook page.

A few more backup links and points below about some of the issues discussed.

• At one point we got into a discussion of Obama’s use of a signing statement to approve ACTA as an “executive agreement” (see ACTA, Executive Agreements, and the Bricker Amendment), I noted that under international law, violation by a host state of the citizen of another state gave rise to a right for the violated citizen’s home state to use military force against the host state. I remarked that one danger of internationalizing intellectual property by means of executive agreements and treaties is that it could give western nations an excuse to military force against countries that allow piracy. However, this was a bit of an overstatement since, as I explain in International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (see this excerpt), this type of “gunboat diplomacy” is ostensibly no longer permitted since the founding of the UN in 1945: “Today, some investors hailing from militarily and politically powerful States might favor the threat or use of force to obtain restitution or compensation for expropriated property. Such an option is no longer available, however, due to fundamental changes in international law and politics. In particular, the United Nations Charter has since 1945 prohibited the use of force to resolve disputes, except in the case of self-defence. Today, it is generally accepted that a State may not use force against another State in response to a taking of the property of one of its nationals.”
• The quote I mentioned about the problem with making law by legislation is by James Carter, who wrote, in 1884, in opposing the attempt to codify New York’s common law:
  

  At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!

• I mentioned the tension between antitrust and patent/copyright law; more discussion of this issue can be found in endnote 1 here;
• We discussed the America Invents Act; I’ve since completed a detailed writeup about this: The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly;
• Concerning our discussion of the copyright lawsuit against Beyonce based on her dance moves in a music video, see also my posts: Copyrights and Dancing, Copyrighting Dance Steps–The Death of Choreography, and others at The Patent, Copyright, Trademark, and Trade Secret Horror Files. On the show we briefly discussed also Pro wrestler sues rapper over hand gesture: Yet Another Example of how Intellectual Property is Partial Enslavement.

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