From The Australian:

Gadgets meet reality’s big bit

• October 11, 2012 10:00AM

• PROTECTING intellectual property, or strangling creativity and competition?

While Samsung and Apple’s ongoing court Battles have sparked heated debate among Technology and design enthusiasts across the globe, the high-profile patent case has re-ignited another debate that predates the computer age.

Beyond quibbles about source codes, rounded corners and tap-to-zoom capability are broader ones surrounding the extent to which a progressive society can, and should, stop people from imitating, taking inspiration from, or building on good ideas.

In a 2001 paper, Against Intellectual Property [link], US libertarian legal theorist Stephan Kinsella challenges some of  the key schools of thought behind patents and copyrights.

One is the argument that granting copyright and patent monopolies encourage creativity because of the protection they offer. Kinsella conversely suggests there could be more innovation if companies re-directed money used on patents and lawsuits towards research, and if they couldn’t rely on a “lengthy monopoly”.

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From Isaac Morehouse on Laissez Faire Today:

Intellectual Property Is Childish

Isaac Morehouse · October 10, 2012

When children play with Legos, violence sometimes ensues.

“He knocked down my tower!”

“Only because she built it to look exactly like the one I made, and that’s not fair. I made mine first!”

All the parents I’ve ever met handle this situation by pointing out to the aggressor that it is perfectly acceptable for other kids to build things that mimic his own creations; in fact, he should feel honored!

But let’s visit a household wherein the parents are strict advocates and respecters of intellectual property. In this house, children are punished for copying their siblings. Any new Lego ideas, whether actually built or not, are immediately filed with the parent, and every time Lego building takes place, the children must first check the files to make sure they aren’t about to build something that someone else had already thought of and filed. No imitation is allowed in this household.

This is, of course, an absurd environment, and the main source of learning for children, imitation, is being crushed while some of the most beastly childlike tendencies — spite and anger at others’ success and an overwhelmingly selfish desire for all the attention — are nurtured. This is also the environment faced by all inventors, entrepreneurs, creators and businesses in any legal structure that enforces IP laws.

Let’s fast-forward a few decades. The IP-conscious parent gets a call from their grown-up child complaining about how he designed and built a beautiful garden, but the neighbor loved it so much he put in an identical twin next door. The good parent would immediately sympathize with the victimized child and come over with some shovels and firearms and help his son destroy the thieving neighbors’ copycat garden, and demand some payment from the neighbor at gunpoint, to boot.

This is only fair, of course, because this gardening son built the garden for profit, not just pleasure. It was so grand that he planned to sell tickets to people who wished to walk through and enjoy its splendor. How could he do so when the neighbor’s identical garden could be walked through for free? [continue reading…]

From Techdirt. ‘Nuff said.

Last Year, Google & Apple Spent More On Patents Than On R&D

We hear all the time that the patent system is “broken” and needs to be “reformed”. That it doesn’t live up to its original “purpose” of incentivizing innovation. This is all confused. The original patent system never served its original purpose either. Those who say that we should reduce the patent term assume that some finite term is better than zero; they are confused too (Tabarrok: Patent Policy on the Back of a Napkin). People who say we should reduce patent terms, “fix” the problems, get rid of patent “trolls” or software patents, improve patent “quality”—but who think “we” “need” a patent system of some sort, are part of the problem, not part of the solution

NY Times Takes On Our Broken Patent System

From Techdirt:

If You Were A Tree… What Kind Of IP Protection Could You Get?

from the copyfraud-and-confusion dept

drewmo wrote in telling us:

“A friend of mine just posted a photo of the Lone Cypress in Pebble Beach and included a note saying, “Evidently, I can’t sell this image. pebble beach owns the rights.” From what I know about photography copyrights in the U.S., that’s completely incorrect.

He also pointed us to this other image (not the one his friend took) of the same tree, with an explanation claiming that there are signs nearby saying that you can’t take photographs of the tree and then sell them:

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Or is is a trademark case? Or contract law? See Masnick’s post for more details.

From Techdirt:

The New Imperialism: Forcing Morality Shifts And Cultural Change Through Exported IP Laws

As could probably be expected after its quick trip through the Congress, Panama’s 510 Bill became law last Friday, granting its Copyright Office unprecedented power to pursue filesharers directly. But this is only one of several problems with the 510 Bill. The bill goes further than any US law, extending copyright protection to buffer copies and content stored in cache. …

The law also severely limits fair use, moving from an open-ended clause to a “closed list” system which narrowly defines fair use limitations and exceptions. …

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Important  case coming up (h/t Nina Paley). See also Your right to resell your own stuff is in peril and Supreme Court to decide the fate of eBay, Craigslist.

I have discussed this previously in Libraries: Prepare to burn foreign books, courtesy copyright law and other posts. For libertarians still on the fence about copyright (which is the cause of all this), this ought to give them pause.

Here, lower courts have interpreted copyright law so that the first sale doctrine does not apply if the item bearing copyright-protected designs or information (such as a watch, books, furniture), which means that for items made and sold overseas, and then sold to some customer in the US, the copyright owner can prohibit resales of the physical item, lending of books, and so on. (The first sale doctrine, if it applied, would prevent the copyright holder from interfering.)

Note that this is an example the danger of classifying copyright as a “property” right (see Classifying Patent and Copyright Law as “Property”: So What?; Tom Bell: Copyright Erodes Property?; and “Copyright as Intellectual Property Privilege“). It can lead to the importation of copyright doctrines like “fair use” into the realm of physical property, such as a “fair trespass” right one scholar proposed for physical property by analogy to copyright law.

And in the current case, here we have copyright law potentially being used to seriously restrict the property rights of owners of physical objects like books, furniture, paintings, jewelry, and so on.

US court to rule on ReDigi’s MP3 digital music resales

By Kim Gittleson

BBC News, New York

A US court is to consider a case that could determine whether digital media files can be resold.

One-year-old start-up ReDigi is battling music giant EMI over whether digital music can be retraded after it has been legally purchased.

ReDigi says that its software is designed to comply with existing United States copyright laws.

But EMI argues a legal principle which allows consumers to resell purchased material goods does not apply.

A judge at the district court in Manhattan, New York, will hear opening arguments in the case on Friday after EMI sued ReDigi for copyright infringement earlier this year.

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From European Digital Rights:

Ancillary Copyright Madness In Germany And France

26 September, 2012

»

Copyright | Intellectual Property Enforcement

On 29 August 2012, the German government decided to pass a draft legislative proposal for ancillary copyright (so-called “Leistungsschutzrecht”) aimed at “protecting” publishing houses’ online content from being quoted in news aggregation sites and on search engines.

This draft law would give publishers the right to limit or forbid any publication or reproduction by third parties of snippets of their content. Services (Google in particular) which publish (or “steal”) even very small parts or snippets as a means of helping end-users find interesting information would have to obtain a license and pay a tax in order to do so. The law would have an extensive impact since any website, aggregator or blog could be affected by this.

A couple of years ago, German publishers suddenly realised that there were companies on the internet which make billions of Euro from advertising. Advertising has traditionally been the publishers’ business model and they have failed to adapt this part of their business to the online environment. They therefore argue that companies that are able to make money in the digital environment should subsidise their pre-existing business model. Ironically, though, those companies are still able to make significant profits. For example, Germany’s biggest publisher Axel Springer recently announced an increase in 55% for its online products in the first half of 2012.

Just a few days ago, French magazine Télérama.fr revealed a draft proposal written by the press association IPG and inspired by the developments in Germany, in order to tax Google and cream off its billion euro profits in France. The draft “lex Google” wants to give publishers the exclusive right to reproduce snippets from articles, under penalty of a fine of 30 000 euro and 3 years imprisonment for offenders.

The somewhat incomprehensive German and French provisions create a disincentive for online companies to help people find the publishers’ online content and “compensate” the publishers when their content is found. Following the same logic, concert venues could ban taxi drivers to take people to their concerts, unless they pay “compensation” to the venue for bringing customers to their doors. In an environment where expensive, disjointed and out-of-date copyright law is already causing significant damage to the European economy, this approach may be a joke, but it certainly is not funny.

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The title says it all. As noted in First Free Digital Font Optimized for Dyslexics Arrives,

The plight of dyslexic individuals served as inspiration to Abelardo Gonzalez, a New Hampshire-based mobile app designer, who devised a clever font to help dyslexics read digital text easier.The font, dubbed “OpenDyslexic“, employs a trick in which the bottoms of characters are weighted.  Curiously some dyslexic individuals visual processing cortexes rotate images that look slender, making characters appear backwards or upside down.  By making the bottom look “heavier” the font reportedly reduces this kind of visual “bug” in the brains of people with this disability.

Mr. Gonzalez wasn’t the first to use this trick, he explained, but he was the first font designer to make an affordable version.  He comments in a BBC News interview, “I had seen similar fonts, but at the time they were completely unaffordable and so impractical as far as costs go.  I figured there’s other people who would like the same thing but had the same issues, and so I thought I’d make an open source one that everyone could contribute to and help out with.”

“The response has been great: I’ve had people emailing saying this is the first time they could read text without it looking wiggly or has helped other symptoms of dyslexia.”

Then he “was contacted by font designer Christian Boer (who sells an alternative font called dyslexie for $69 USD per “single-use” license) to “cease and desist” early during his process.” That’s right. He was threatened with a copyright lawsuit for … making an affordable, open-source font to help dyslexics.

At the time he was charging a nominal fee and did reuse some bitstream-vera-sans characters as the basis for his font.  Bitstream-vera-sans’ license explicitly allows derivative fonts to be sold (free of fee to the bitstream font creators), however, Mr. Boer was claiming that the offense occurred due to the fact that Mr. Gonzalez had changed the (free) font in a similar way as he had.  By all appearances the real issue was that Mr. Gonzalez was offering it for far cheaper than Mr. Boer.

So Mr. Gonzalez went a step further and simply made the font free.

See also Gonzales’s post No good deed goes unpunished: Cease and Desists from Christian Boer, which notes:

A few months back, I decided to try to create an open-source and free font for dyslexic readers (OpenDyslexic). Back when it was in its infancy, I got an email from Christian Boer. My first thought was, “Oh cool! It’s Christian Boer! That’s freaking awesome!!!!”

But, it wasn’t an awesome email. It was a cease and desist. Legal threats are not awesome. And making threats of violence against others to prevent competition is not very nice. It’s really just preventing others from filling a gap in the market. And, if his work is really high quality work, he shouldn’t have to resort to threatening me to succeed. He would succeed without them. I don’t like seeing legal threats happen to others, and I really, really did not like it happening to me. His demands were also unreasonable.

Brilliant!

Update: See also Mike Masnick’s post Font Designed To Help Dyslexic Individuals Gets Legal Threat, Becomes More Open In Response.

Just as people are beginning to wake up to the harm done by copyright and demand that it be choked back,¹ governments march ahead wiht attempts to strengthen and even expand copyright law. Case in point for the former: Japan introduces harsh punishments for music file-sharing; Ancillary Copyright Madness In Germany And France; Former top US copyright bureaucrat thinks all communications/entertainment technology should be illegal until Congress approves it.

As for the latter: the Senate  is trying to add protection for fashion designs in the Innovative Design Protection Act of 2012 (S.3523; see Senate Takes Up Fashion Copyright Again). Sponsors include the vile Senators Schumer and reliable IP shill Orrin Hatch.

Sad.

1. Becker & Posner: Time To Minimize Patent & Copyright Law; Boldrin and Levine: The Case Against Patents; The Atlantic: “The Case for Abolishing Patents (Yes, All of Them)”; The Confused Economist on Patent Reform; Tabarrok: Patent Policy on the Back of a Napkin. [↩]

From boingboing:

Former top US copyright bureaucrat thinks all communications/entertainment technology should be illegal until Congress approves it

By Cory Doctorow at 4:26 pm Thursday, Sep 27

Ralph Oman, the former bureaucrat who served as Register of Copyrights to the US Copyright Office, has filed an amicus brief in the lawsuit against Aereo, a company that makes server racks with thousands of tiny aerials that are used to capture over-the-air broadcast TV and transmit it to viewers using the Internet, with each viewer getting her own antenna.

Oman’s brief argues that the intention of the US Congress in passing the 1976 Copyright Act was to establish a regime where anyone who’s got an idea for using technology to change the way we interact with copyrighted works was to force that person to get permission from Congress before they made it into a product.

In other words, Oman believes that in America, the law says that all innovation that touches on copyright is presumptively illegal, and each idea must be individually vetted by Congress before being brought to market: “Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.”

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This is hopeful news: the anti-IP case is growing stronger and mainstream all the time. The latest is Jordan Weissmann’s The Atlantic article The Case for Abolishing Patents (Yes, All of Them), which draws on a recent paper by Boldrin and Levine (see Boldrin and Levine: The Case Against Patents). For other recent semi-mainstream opinion that flirts with abolition, see Becker & Posner: Time To Minimize Patent & Copyright Law.

Great post by Mike Masnick at Techdirt:

Becker & Posner: Time To Minimize Patent & Copyright Law

from the shrink-shrink-shrink dept

Famed economist Gary Becker and appeals court judge Richard Posner have long teamed up to publish The Becker-Posner Blog, in which they pick key issues and each of them discuss the same issue in separate posts. It’s a really great blog, and we’ve mentioned it in the past — in a situation where we disagreed with Posner’s suggestion that copyright should be expanded to help newspapers. More recently, we’ve noted that Posner’s been very interested in patent issues, and has been somewhat vocal on how the system is mostly broken. So it’s no surprise that patents are a recent topic on the blog.

Posner’s contribution actually touches on both patents and copyrights, both of which he admits seem to be excessive, though (somewhat surprisingly) he argues that patents are a bigger problem. I get the sense that he hasn’t spent that much time on copyright issues given some of the statements that he makes. Perhaps if he explores that issue more deeply he’ll realize that some of the problems are just as, if not more, serious in copyright law.

Posner starts with the premise that IP works in cases where there are high capital expenditures for creation/invention, with low barriers to copying — but that it doesn’t work otherwise. There’s increasing evidence that the premise is a bit faulty, and there are reasonable questions about whether or not patents and copyrights really are the best thing in those high capital expenditure cases, but his recognition that it barely works at all otherwise is welcome. He falls into the cliche of basically comparing pharma patents (which he claims works) to software patents (where they clearly don’t work) — and suggesting that it’s merely about recognizing that the costs and benefits in different industries are different. His conclusion, though, is that the “costs” probably outweigh the benefits in most cases:

The pharmaceutical and software industries are the extremes so far as the social benefits and costs of patent protection are concerned, and there are many industries in between. My general sense, however, bolstered by an extensive academic literature, is that patent protection is on the whole excessive and that major reforms are necessary.

I think if he explores the issue more deeply, he’ll realize that the different impact on different sectors is more a symptom of the problem with how the system is set up, rather than the problem itself.  [continue reading…]