Nice new short video from Tom Bell about why copyright should be radically scaled back. I would eliminate it, but hey, this proposal is radical and would be a good start.

I’ve discussed in the past various ways the patent and copyright (and trademark) systems could be improved.¹ These suggestions include drastically reducing the patent and copyright terms, getting rid of patent injunctions, make the losing copyright/patent plaintiff pay the defendant’s costs, and, for copyright, “Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright.” (The problem with the latter is that it arguably violates US treaty obligations under the Berne Convention; so, of course, the US should withdraw from the Berne.)²

The copyright re-registration/fee suggestion is already in place for patents. The term of a normal utility patent is from the date of issuance, to 20 years from the date of original filing, or about 17 years if it takes about 3 years for the patent to issue. The patent expires at the end of this term, unless it is abandoned before that time. The patentee can expressly abandon it (unlike in the case of copyright, which is almost impossible to get rid of)³ But it will also be abandoned for failure to pay a periodic “maintenance fee.” Once the patent issues, a maintenance fee must be paid every 3.5 years; this fee rises exponentially, so that at 3.5 years, it’s $1600, then $3600 at 7 years, and $7400 at 11.5 years (the fees are half that for “small entities,” and one-fourth that amount for “micro-entities”). This helps to clear out some of the patents out there which are not being “used”. The abandoned patents are listed in a notice every week in the Official Gazette of the USPTO (example: Notice of Expiration of Patents Due to Failure to Pay Maintenance Fee).

Now it is true that the US patent system distorts the economy and technology, reduces innovation, and imposes costs north of $100 billion per year. But despite this ginormous cost, at least the patent term is only 17 or so years; maintenance fees are required; significant costs must be incurred to obtain a patent; and it must be actively applied for. Otherwise: no patent. And you can abandon a patent if you want to. Copyright protection lasts usually over 100 years; it is automatic (no active registration is required); no maintenance fees or re-registration is required; it cannot be gotten rid of even by the author; and in addition to economic costs and cultural distortion, it serves as the basis for an increase in police-state surveillance and control of the Internet.⁴

Did I say we should improve the copyright system by adding a registration and periodic renewal fee requirement? Sorry, I misspoke. I meant to say “abolish the evil copyright system.”

1. How to Improve Patent, Copyright, and Trademark Law; Obama’s Patent Reform: Improvement or Continuing Calamity?; see also Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. [↩]
2. Re Berne: see Longer copyright terms, stiffer copyright penalties coming, thanks to TPP and ACTA…; Public Knowledge’s tepid proposals for copyright “reform”.   [↩]
3. See Copyright is very sticky! [↩]
4. SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright;  Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; Should Copyright Be Allowed to Override Speech Rights?; Patent vs. Copyright: Which is Worse?. [↩]

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 by 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.⁵ 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).⁶

Update: see Hoppe: First significant thinker to get libertarianism totally right:

Probably the best overall libertarian in pre-modern times was Benjamin Tucker but even he, like lots of the earlier anarchists, was confused on some basic economic issues, the “land” question, etc.—this latter issue even corrupted his heroic opposition to IP: his argument against IP is that it is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but that this would imply you can own land. And we know we can’t have ownership of land, therefore the principle behind IP must be flawed too. [See Land Monopoly and Literary Monopoly]

So Tucker was great, esp. for his time, but not complete.

Further, he was too early to benefit from modern Austrian economics, especially the praxeological-Misesian approach. Which I regard as essential to being a basically modern, complete, systematic, coherent, principled libertarian. You need to be anti-state/anarchist, Austrian (Misesian), and also consistent and very propertarian. Without this it is more proto-libertarian or flawed libertarianism.

Update: see Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015), stating that Molinari and most other French economists, such as Jean-Baptiste Say, Gustave de Molinari, and Charles Coquelin, were pro-patent (citing Molinari, Gustave de (1856): “La propriété des inventions, réplique à M. Frédéric Passy,” Journal des Économistes, 2nd series, 9 (25), pp. 133–36).

1. See Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty; also my post Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine. [↩]
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. For a similar error in arguing against IP, see Clarence Lee Swartz and The Mutualist Associates, What Is Mutualism? (1927), pp. 9, 23, & 28–29 (opposing four types of monopolies: money, land, tariffs, and patent & copyright), 51 (arguing against the absentee ownership of land), 54–56 (arguing against patent and copyright). [↩]
6. See Hume on Intellectual Property and the Problematic “Labor” Metaphor. [↩]
7.  Proudhon: For Intellectual Monopoly.  [↩]
8. Leonard Read on Copyright and the Role of Ideas [↩]
9.  LeFevre on Intellectual Property and the “Ownership of Intangibles”. [↩]

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.,

• KOL 038 | Debate with Robert Wenzel on Intellectual Property;
• Kinsella vs. Wenzel on IP
• Rozeff: Contents of Private E-Mails Are Private Property
• “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs

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.” [continue reading…]

From ArsTechnica:

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.

A 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.

From Slashdot. For related commentary, see:

• The Patent Defense League and Defensive Patent Pooling
• “Defensive Patent License” created to protect innovators from trolls; probably won’t work
• Taiwan’s Defensive “Patent Bank”

Open Source — the Last Patent Defense?

Soulskill posted yesterday | from dp619

51

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 Mike Masnick at Techdirt:

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”

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.

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

Cory Doctorow 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. [continue reading…]

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;¹ 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 https://c4sif.org/2011/09/objectivist-worried-obamacare-may-weaken-patent-rights/#footnote_1_2629; footnote 4 of https://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 back pedal 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 ) [See update below for current text/links to these comments]

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 (https://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.

Update: TPP is about to pass, as predicted, and here is Cato’s Daniel Ikenson shilling for it, as predicted. Sad.

Update: Palmer has for some reason deleted his comments linked above, but they are still on the Internet Archive:

https://web.archive.org/web/20100504095104/http://tomgpalmer.com/2005/09/19/alive-thanks-to-pharmaceutical-profits/#comment-3642:

Tom G. Palmer June 11, 2005 at 1:48 am

I meant what I wrote. If they wanted X, they would do Y. Fostering effective price discrimination would be the most effective means of delivering the drugs to those who need them in poor countries. Creating an internally consistent theory to amaze one’s circle of internet friends is probably not at the top of the list of priorities of the people to whom the advice would be directed.

Pharmaceuticals and chemicals offer undoubtedly the best cases for patent protection on utilitarian grounds. In my Hamline Law Review article (http://www.tomgpalmer.com/pape…..-v12n2.pdf ), p. 301, I quoted from a study by Edwin Mansfield from the American Economic Review in which he pointed out that “patent protection was judged to be essential for the development or introduction of one-third or more of the inventions during 1981-1983 in only 2 industries — pharmaceuticals and chemicals.” That seems not to have changed. The reason is pretty easy to understand: reverse-engineering in the case of chemicals (which broadly includes pharmaceuticals) is quite easy. In the case of pharmaceuticals, at least, R&D costs are very high and would still be high even without some of the very costly efficacy tests imposed by the Food and Drug Administration. Furthermore, the benefits of new pharmaceuticals are enormous. If one were to make a case for patent law, that’s the strongest industry for which to make it. And if one were seeking to help sick people, one would be well advised to seek practical methods, given the parameters of current debate, that would deliver cheap medicines without curtailing innovation. Price discrimination is best suited to that.

 

https://web.archive.org/web/20100504095134/http://tomgpalmer.com/2005/06/10/healthy-profits-to-help-sick-people/#comment-2619:

Tom G. Palmer September 21, 2005 at 9:48 pm

I’ll address the patents question, as it was addressed to me and I think that the conversation on the other topics is interesting without my two cents.

I’ve been critical of the patent system in the past. Mr. Brady has given me a quiz about whether I conform to his vision of right-thought or have drifted further into thought crime. as he defines it. I am not a fan of the patent system and think we could generally live well without it. (I’ve posted a few articles on my web site indicating why.) The one exception to that general hostility to patents, as I have suggested elsewhere, is the system of patents for chemicals, notably pharmaceuticals. Because chemical compounds are relatively easy to reverse-engineer and can be successfully marketed independently of their role in a larger product (unlike, say, innovations in jet engine design, which often are only valuable as part of a kind of engine), patents may indeed generate incentives for innovation that greatly improve human welfare. That’s an argument for them. Since the innovation has the characterstics of public goods (costly to exclude and non-rivalrous in consumption, the latter being the relevant feature here), a good profit maximization strategy ought to be price discrimination, by which those who can pay more do so and others pay less. The best strategy forward for sick people in low-income countries is not abolition of patents, but introduction of an effective system of price discrimination that would price the product at marginal cost there and at a high enough price to recoup R&D costs in high income countries.

As to what accounts for the supra-normal rates of return in pharmaceutical countries, I think that a more significant explanatory factor is the response of the demand for life extension and pain and suffering reduction to rising incomes. Supranormal rates of return may be the result of barriers to entry, but patents do not (generally) represent barriers to entry for new firms. So I think we’re seeing an incentive to allocate more resources to the production of more goods and services of which people desire more as their incomes are rising. I am confident, however, that there are people who are far more knowledgeable about such matters who have devoted considerable attention to just those questions.

 

1. See Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance: “in the same discussion Tabarrok mentions positively how the US twisted the arm of Australia in 2005 when negotiating a “free trade” agreement to expand its IP protection for pharma patents and also extended its copyright term from life of the author plus 50 years to life plus 70, to match the insane US term. Free trade agreements have nothing to do with local property rights; that is the province of bilateral investment treaties, which are usually negotiated between a developed country and a developing country. So here we have so-called IP reformer who says IP protection is too strong but he gets the term of patents wrong, and things they should be extended, and favors US IP imperialism to force other countries to extend their own copyright terms.” [↩]

Law professor Lawrence Lessig just penned this little note about Aaron Swartz on Huffington Post: Aaron’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 Swartz; Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”.)

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.