By Cory Doctorow from Boing Boing. As my friend and TLS co-blogger Rob Wicks says regarding this post, “I think IP really threatens to morph into outright fascism, with a large percentage of corporations being essentially wings of the state.”
In a fascinating interview with TVOntario’s Search Engine podcast, Michael Geist describes and predicts the likely outcome of the years and years of wrangling over Canada’s new copyright bill, C-61 C-32, which includes a sweeping DRM clause that makes it illegal to modify your own equipment, even if you’re not otherwise breaking copyright law, making it one of the most radical DRM laws in the world. Michael sees reason to hope for a more moderate C-32 in its final form — I hope he’s right.
By Fiona Graham Technology of business reporter, BBC News
Steven Johnson: “The lone genius is the exception rather than the rule.”
Standing on the station platform, waiting for the Philadelphia train one night in the summer of 1902, Willis Carrier was about to have his ‘eureka moment’.
As the fog rolled in across the track, he suddenly realised how he could fix the nascent air-cooling system he’d been working on, using water as a condensing surface.
This sudden moment of inspiration led to the invention of modern air-conditioning, a fortune for its inventor, and the foundation of a multi-billion dollar company.
The lone genius, beavering away in the seclusion of his lab is how most of us imagine the great moments of innovation have come into being. But is this really the whole story?
Not entirely, according to author Steven Johnson. He believes Willis Carrier is very much the exception rather than the rule.
“It’s not that the individuals disappear in this, it’s just that they need to be part of something larger than themselves to be able to do the work that they do.”
The problem faced by this documentary film is common to all such works – which, unlike newspapers etc., must secure permission to quote when it uses news film clips, etc.
“[The series Eyes on the Prize] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.”
As our sources become more digital, and more multimedia, we’re going to encounter this problem more and more often. And right now, the law is a serious hindrance to transmitting history and culture to new generations:
“Whatever your view of it, notice first just how different this future promises to be. In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs). You get to browse through the whole of the library…. This freedom gave us something real. It gave us the freedom to research, regardless of our wealth; the freedom to read, widely and technically, beyond our means. It was a way to assure that all of our culture was available and reachable – not just that part that happens to be profitable to stock. It is a guarantee that we have the opportunity to learn about our past, even if we lack the will to do so. The architecture of access that we have in real space created an important and valuable balance between the part of culture that is effectively and meaningfully regulated by copyright and the part of culture that is not…. We are about to change that past, radically…. And what this means, or so I fear, is that we are about to transform books into documentary films…. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.
…we cannot rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture, even if the favors are generous, at least at the start. Instead our focus should be on the underlying quandary that gives rise to the need for this elaborate scheme to regulate access to culture…. The solution is a re-crafting of that law to achieve its estimable objective–incentives to authors–without becoming a wholly destructive burden to culture.”
from the willful-ignorance-or-scary-ignorance? dept
Law professor Doug Lichtman’s latest “IP Colloquium” podcast is an interview with Judge Randall Rader, who’s the chief Judge of CAFC, the appeals court that handles most patent cases. Rader is known for being outspoken and opinionated (but also very, very smart), so it’s always fascinating to hear what he has to say. The first part of the interview is interesting from a purely procedural standpoint, as Rader goes through the process by which the CAFC makes decisions, including the fact that nearly every case is decided almost immediately after the oral hearings. It sounds like they almost never feel the need to sleep on a decision. However, the latter part of the interview is where things get really interesting. While Lichtman and I tend to disagree over copyright issues, we find a lot more common ground on patent issues, with Lichtman pointing out the harm that patents often seem to do to innovation, as well as questioning why independent invention isn’t a sign of obviousness.
Rader’s responses are thoughtful, and interesting, but I feel that he makes some assumptions that don’t have much support, and makes a few other statements that simply are not an accurate representation of reality. Rader starts out by suggesting that it’s simply impossible for any tech firm to “keep up” with technology innovation today (partially true), and the only way to do that is through cooperation (true) and that patents “facilitate” that cooperation (sometimes, but rarely, true). He paints this idealistic, and not very accurate, picture of innovation occurring thusly:
In order to really see the future, you’ve got to bring together some kid writing software in Bangalore, with a laboratory professor in Chengdu, with a university researcher in Kyoto and a startup company in Boston. And they each have a piece of the puzzle which may be “Windows 7,” or whatever the future of technology is, but no single laboratory, no single company, anymore invents the future.
Now, to some extent that’s true. No single company does invent the future, but I actually see that as a pretty strong argument against patent protection in most cases, since patents in situations like that now create transaction costs that hinder innovations that advance the market. It’s putting a toll on innovation, which can be much more efficiently handled in the actual marketplace.
A wonderful Wall Street Journal profile of Blaise Agüera y Arcas, the architect behind the most advanced features of Bing Maps, explains how he is working toward features that allow users to upload high-resolution images inside of buildings to match with seamless maps to create integrated virtual realities – a dramatic step beyond Google Maps. Google has inspired him of course but he knows that he must do better. “You can always be inspired, but the moment you start copying, you guarantee you will never get ahead,” he said.
There is a telling point here that contributes to the IP debate. Unless he could copy – emulate the leaders in the field – the project would not get off the ground at all. That freedom has to be there. But in order to compete, copying is never enough. A pure copy rarely gets a foothold in a market dominated an an efficient original. There must also be improvement – innovation. So there we have it. Progress requires three freedoms: to cooperate with others, to emulate others, and to compete with others.
Mark Edge just let me know. Tune in here. I can’t call in, as I’m giving a speech in 30 minutes on “Intellectual Freedom and Learning versus Patent and Copyright,” at the 2010 Students For Liberty Texas Regional Conference, University of Texas, Austin. In fact I’m sitting in a conference room listening to ex-Gov. Gary Johnson talk about giving immigrants social security cards so they can pay taxes and decriminalizing marijuana and having a voucher system in education.
UK copyright laws to be reviewed, announces Cameron
Britain’s intellectual property laws are to be reviewed to “make them fit for the internet age,” Prime Minister David Cameron has announced.
He said the law could be relaxed to allow greater use of copyright material without the owner’s permission.
The announcement was welcomed by internet campaigners who say it will boost small business.
But any changes could be resisted by the music and film industries who have campaigned against copyright reform.
Speaking at an event in the East End of London, at which he announced a series of investments by IT giants including Facebook and Google, Mr Cameron said the founders of Google had told the government they could not have started their company in Britain.
‘Fair use’
He said: “The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.
“Over there, they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services.
“So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.”
I am hosting an online gadget drive through Gazelle to raise money for C4SIF, and would love your support. You can visit our drive webpage at http://c4sif.gazelle.com.
A gadget drive is a new way to fundraise that turns your used electronics (laptops, cell phones, MP3 players, digital cameras & more) into cash to support a cause. Contributing to my drive is simple. Just visit my drive webpage, find the value of the gadgets you would like to donate, and send them to Gazelle (shipping is free). The value will go to support C4SIF.
If you would like to donate, please go to C4SIF Winter 2010 Fundraising (http://c4sif.gazelle.com) to learn more about our drive and track our progress. You will receive a confirmation of your donation by email, and I will be notified as soon as you make your donation.
My Mises Blog post A Patent Lie from a couple years ago was about a good op-ed (printable version) in the N.Y. Times from Cato’s Timothy Lee, highlighting the damage wrought by software patents. The take-away:
as the Vonage case demonstrates, participating in the patent system is not optional. Independent invention is not a defense to patent infringement, and large software companies now hold so many patents that it is almost impossible to create useful software without infringing some of them. Therefore, the only means of self-defense is the one Mr. Gates identified 16 years ago: stockpile patents to use as bargaining chips in litigation. Vonage didn’t do that, and it’s now paying a very high price. … Only patent lawyers benefit from this kind of arms race.
Paul Watson points us to yet another example of how engaging with fans of your work (even if, technically, they infringed on your copyrights) can lead to pretty happy outcomes for everyone. The basic details are that comic book artist Steve Lieber discovered that folks at 4chan had scanned in and uploaded every page of his graphic novel Underground. Now, the typical reaction is to freak out, scream “piracy,” whine about “losses” and demand that “something must be done.” But, in a world where obscurity is really a much bigger issue than “piracy,” another option is to actually engage with those fans who liked his work so much that they put in the effort to share it with the world. And that’s exactly what Lieber did. He went to the site and actually started talking about the work with the folks on 4chan (image from Paul):
Nice. But, what did it actually mean? Well, the day after he engaged with fans on 4chan, Lieber posted a blog post highlighting his sales. As he says, “pictures help us learn.” But “piracy” is killing the ability to earn money, right?
When I suggested in my book Who Owns You? that unaltered genes, such as “disease genes” like that responsible for Canavan’s Disease, ought not to be patentable because they are not in the least bit inventive, I was attacked as a pariah by the minions of the IP-Industrial Complex. Gene patents, specifically on merely “isolated” genes, are particularly insidious perversions of the patent law’s ever expanding breadth, and they are also tremendously valuable to any company that happens to get them. These patents encompass the sequences of genes known, for instance, to cause a propensity for a certain disease. Identifying them through a genetic test involves significant consequences for individuals. Companies that tie up these sequences by patent can “own” the exclusive right to test for the presence of that gene. The most famous example is Myriad, which owns patents on the BRCA1 and 2 genes known to increase one’s propensity for breast and ovarian cancers. This patent enables Myriad to prevent anyone else from performing clinical tests for the BRCA1 and 2 genes, and so in the absence of competition they can charge the ludicrous monopolistic price of nearly $3000 US for a test that costs less than $400 to perform. This sort of patent is particularly offensive, not merely because of the consequences, but because of the “theory” behind them. While we ordinarily consider patents to apply to “inventions,” they can also apply to new “discoveries” as well. This nasty little ambiguity has been extended through painfully strained reasoning to allow patents on synthesized, but otherwise naturally-occuring molecules like adrenaline and now, unmodified (but “isolated”) genes. Defenders of the practice say that by “isolating” a gene from the 3 billion base-pair string that is the human genome, something “new” has been created, and as a new composition of matter, it is somehow patent-eligible. In my book, and ever since, I have analogized this to drawing a boundary around the Devil’s Tower and claiming to have invented the Devil’s Tower. Nature defines the boundaries of genes even more precisely than natural boundaries around physical features, because at the end points of genes are well-known markers called “promoter” and “stop” codons. Because of the value of gene patents, there has been a gold-rush of sorts to identify and claim ownership of genes, and this has had a real effect on the progress of basic research. Worse, it defies all reason and awards the right to exclude others from basic, natural facts and phenomena.
But the tide may be turning. The ACLU sued Myriad last year and won a surprising summary judgment which is now being appealed. The court reasoned that the mere isolation of a naturally-occurring mutation to a gene was not sufficiently inventive to warrant a patent. The decision was of course derided by patent attorneys, but it seems to have presaged a general shift in thinking about this issue. Public opinion has been firmly against these sorts of patents for some time, and now even the US government (outside of the PTO) is beginning to push back. Early this year, the The Secretary’s Advisory Committee on Genetics, Health and Society (SACGHS) for the Department of Health and Human Services (HHS) issued a report that called for scaling back a bit the practice of granting patents over isolated genes. Even more significantly, the Department of Justice filed a surprise amicus brief last week in the Myriad lawsuit, siding with the plaintiffs and arguing that patents on unmodified (but merely “isolated”) genes are contrary to the purposes of patent law and ought to stop.
You can bet that this issue will not die down soon, and it will be fascinating to see how this all plays out given that the PTO clearly disagrees with the DoJ’s position, but it is good to see movement, however slight, in the right direction.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.
Nice. But, what did it actually mean? Well, the day after he engaged with fans on 4chan, Lieber posted 
But “piracy” is killing the ability to earn money, right?
Follow Us!