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.”

[For more on compulsory licensing, see Hickey, Kevin J.; Ward, Erin H., “The Role of Patents and Regulatory Exclusivities in Drug Pricing” (01/30/2024).]

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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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.

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 Movies; Leveraging IP; Amazingly, Spider-Man Pirates Himself; How 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.

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

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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.”  [↩]

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?: Yes, Insight 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

Related:

• see medicines invented without patents listed in KOL427 | Lewis & Clark College Debate on Intellectual Property Imperialism
• Patent and Penicillin
• Boldrine and Levine, Against Intellectual Monopoly, Chapter 9: The Pharmaceutical Industry (pdf)
• Masnick on Innovation vs. Invention
• Phan: 11 types of cross-industry innovation
• Jared Diamond on Inventors and Innovation
• Enski, Patent Dystopia, How the Patent System Strangled Innovation, Job Creation and the Economy
• Jared Diamond on Inventors and Innovation

Patents are often used as indicators for economic and innovative progress.¹ The assumption is that many patents represent innovation, and also that many innovations are patented. Patent records thus correlate with innovation.

A fascinating new paper, “Reassessing patent propensity: evidence from a data-set of R&D awards 1977-2004,” by Roberto Fontana, Alessandro Nuvolari, Hiroshi Shimizu, and Andrea Vezzulli (Department of Economics at the School of Economics and Management (ISEG), Technical University of Lisbon, Working Papers series number 2013/09; Mar. 2013), carefully examines this issue. The authors studied the innovations from the “R&D 100 Awards” competition organized by the journal Research and Development, which, since 1963, “has been awarding this prize to the 100 most technologically significant new products available for sale or licensing in the year preceding the judgments.” I.e., this is a list of important and “technological breakthrough” innovations over almost 3 decades.

The authors searched the patent records for all of these innovations to determine which of them were patented or not, and conclude “a relative low number of important innovations are patented“. In particular, they found that only about 10% of “important” inventions are patented (this number varied a bit based on the industry). This implies that most important innovations are not patented. For most innovations, the innovating companies rely on trade secrecy, lead time/first to market advantages, or other strategies, instead of on the patent system.

One obvious conclusion to be drawn from this study is that patents are not a significant driver of most innovation, if 90% of important inventions are never patented in the first place. Proponents of the patent system often claim that patents are necessary to provide an incentive to innovate; some even (ridiculously) claim that without patents, all innovation would grind to a halt (the truth is the opposite: if patents were made universal and had a perpetual term, all human life would grind to a halt; no offense Galambosians). But even if the 10% of innovations that are patented would never have resulted without the incentives provided by a patent system (an absurd assumption), the great bulk of technological innovations and breakthroughs in modern times would still have come about. [continue reading…]

1. See, e.g., Pierre Desrochers, “On the Abuse of Patents as Economic Indicators,” Q. J. Austrian Econ. 1, no. 4 (Winter 1998): 51–74. [↩]