I’m currently reading  law professor Robin Feldman’s new book, Rethinking Patent Law (despite its ridiculously high kindle price of $34.37, a price possible only because of the copyright monopoly). Feldman’s thesis is that it’s untenable to view a patent as defining a property right, for various reasons. For example, analogizing the patent claim to property rights in land, as defining “metes and bounds” to some invention’s boundaries, makes no sense because the patent claim uses words which “describe an invention that by definition did not exist before and that will be compared against things that may not exist when the words are chosen.”

I think she has a point, and this helps highlight why patent rights are completely artificial and aberrations that are contrary to the nature of the normal property rights that underpin a free market economy. But how should patents be viewed, then, if not as property rights? Feldman thinks that a patent should be viewed as an “opportunity to bargain”—”an invitation to enter into the process of negotiating a definition of rights”. As she writes:

This book suggests that the entire conceptualization of patents as establishing the boundaries of the rights granted is simply wrong. Rather than delineating a patent holder’s rights, a patent creates no more than an opportunity to bargain. It is an invitation to enter into the process of negotiating a definition of rights. One can think of this conceptualization as the bargain aspect of patents …

[A] patent could never grant a definitive and clearly bounded set of rights. Rather, a patent grants some form of an opportunity—a seat at the bargaining table, with certain rules in place.

I haven’t finished the book yet, but Feldman’s conceptualization of how patents really work doesn’t seem off-base to me (legally, I think patent and copyright are best described as involuntary negative servitudes; see my post Intellectual Property Rights as Negative Servitudes). But Feldman’s way of looking at it helps highlight the thuggish, extorting nature of patents. One can readily imagine an analogous case of a mafia thug demanding protection money from a local businessman, and saying, “Aw, hey, I ain’t shakin’ you down! This ain’t no shakedown…! Think of it as …. as … an ‘opportunity to bargain'”.

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Feldman also appears in the short video below.

Feldman’s comments near the end is a bit misleading. She says that most innovation builds on technology that has come before—this is true, but of course, nothing is wrong with this. That is the nature of progress. But she says that because of this, and because there are so many millions of patents out there, “one can often look and find something out there to say well, this is what you took your idea from.” But in most cases of patent infringement, copying is not even alleged and probably does not exist. (See Patent defendants aren’t copycats. So who’s the real inventor here?) The problem is that you might be infringing a patent you never heard of, when you never copied it or learned anything from it (or even from the competitor’s products covered by the patent). The idea that you have no right to make a product or innovate unless you do it in a vacuum is ridiculous.

Moreover, yes, there are millions of patents, but the majority are expired. So there is nothing wrong with copying those that have expired already. that’s part of the alleged point of the patent system—to encourage people to disclose their inventions, so that after the patent expires, the public can use the ideas in it freely.

I was a guest a couple days ago on the Liberty Minded show Speaking on Liberty, discussing intellectual property. The hosts, Kyle Platt, Jason Lee Byas, and Grayson English, were very good and asked excellent questions. The show is here, and the video is embedded below.

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Now podast at KOL167.

You can’t make this stuff up.

WIPO Defied UN Sanctions To Give Computers To Iran… For Its Patent System (Wink, Wink)

And, on the rogue IP agency front, Mexico’s IP Office Surprised Its Congress By Signing ACTA, And Now Hopes To Win Their Support. As Masnick notes: ” This move still has the US’s fingerprints all over it. The US needed some sort of “win” for ACTA these days, and coming so soon after the US allowed Mexico to enter TPP negotiations, it’s hard not to think that there was some horse trading going on here.”

See also related posts on IP Imperialism.

I’ve just added two more to my list at Death by Copyright-IP Fascist Police State Acronym:

• CETA – Canada-EU Trade Agreement
• IPPA – IP Attaché Act

Fascinating interview with law professor Chris Sprigman on the excellent Surprisingly Free podcast, about his forthcoming book, The Knockoff Economy: How Imitation Sparks Innovation. Sprigman’s book sounds great, although he does seem (from indications in the interview) to accept (a) the utilitarian model for evaluating law, and (b) the idea that IP law makes sense in some fields, such as pharmaceuticals. For a criticism of the utilitarian approach, see the section “Utilitarian Defenses of IP” in my Against Intellectual Property; for the latter, see chapter 9 of Boldrin and Levine’s Against Intellectual Monopoly. Sprigman does a goob job of showing how a variety of industries work absent strong IP law, and in arguing, from a mainstream utilitarian perspective at least, that we should be very reluctant to extend IP to areas not currently covered, or even to strengthen it. Even in the music industry, where lack of copyright seems to be hurting the music industry, it is not affecting the production of music itself, and since one of the purposes of copyright is allegedly to stimulate the production of creative works but not to support a given industry, then it does not need to be strengthened; if the movie and music industries themselves shift around, while we still get a huge outpouring of movies and music, copyright does not need to be strengthened.

Christopher Sprigman on creativity without copyright

Christopher Sprigman, professor of law at the University of Virginia discusses his forthcoming book, The Knockoff Economy: How Imitation sparks Innovation, co-authored with Kal Raustiala. The book is an accessible look at how industries that are not generally protected by intellectual property law, such as the fashion and culinary industries, are nevertheless thriving and innovative. Sprigman explains why this happens and what the phenomenon can teach us about other industries, such as the music and movie industries.

Related posts:

• “Yet Another Study Finds Patents Do Not Encourage Innovation”
•  “Funding for Creation and Innovation in an IP-Free World“
• “Examples of Ways Content Creators Can Profit Without Intellectual Property“
• Professor Chris Sprigman on Intellectual Property Law
• Artist Resale Royalties: Do They Help or Hurt?
• Christopher Sprigman on IP and the Fashion Industry
• “Valuing Intellectual Property: An Experiment”

A note from my friend Paul Vahur about an interesting tidbit from Will Durant’s The Story of Civilization:

Continuing to listen the Story of Civilization. I found this nice gem:

“In 1907 Sir Aurel Stein persuaded the Taoist priests of Chinese Turkestan to let him examine the “Caves of the Thousand Buddhas” at Tun-huang. In one of these chambers, which had apparently been walled up about the year 1035 A.D. and not opened again until 1900, lay 1130 bundles, each containing a dozen or more manuscript rolls; the whole formed a library of 15,000 books, written on paper, and as well preserved as if they had been inscribed the day before their modern discovery. It was among these manuscripts that the world’s oldest printed book was found-the “Diamond Sutra”—a roll ending with these words: “Printed on (the equivalent of) May 1 I, 868, by Wang Chieh, for free general distribution, in order in deep reverence to perpetuate the memory of his parents.” Three other printed books were found in the mass of manuscripts; one of them marked a new development, for it was not a roll, like the “Diamond Sutra,” but a tiny folded book, the first known of its now multitudinous kind.”

(emphasis added). Of course, this paragraph was written in 1935 and maybe even older printed books have been found since then but it is still cool and especially the free general distribution part.

If anyone would ask me which is the best way to learn world history, my answer would be Durant’s “Story of Civilization”. This book is just amazing. It is almost antithesis of a typical history book where descriptions of wars and battles are interrupted by short descriptions of normal life, in SoC it is vice-versa. I’m really enjoying reading that book.

I previously blogged about A Defiant Dude: “Eat More Kale” T-Shirt Designer Fighting Back Against Chick-fil-A’s Trademark Bullying. Here’s an update:

T-shirt artist Bo Muller-Moore defies Chick-fil-a, a multi-billion dollar fast food chain, when they lay claim to his ‘Eat More Kale’ t-shirt design and website. This is a trailer for the documentary in the making. Learn more at www.ADefiantDude.com.

Read more at http://thechive.com/2012/07/16/one-man-takes-on-chick-fil-a-like-a-champ-video/#Wu2CGJMuPtUOAcgr.99

An interesting recent Wall Street Journal article, The Song That Conquered Radio, about the Righteous Brothers’ song “You’ve Lost That Lovin’ Feelin,'” one of the most-played songs of all time. Some of the comments from the creators are illuminating:

… Cynthia Weil: We all planned to write together the next day. But back at the hotel, Barry and I started a draft. We loved the yearning of the Four Tops’ “Baby I Need Your Loving.” Barry came up with our opening line: “You never close your eyes anymore when I kiss your lips.”

Mr. Mann: My heart had been broken a few times, so it wasn’t a stretch. I also might have been influenced by “I love how your eyes close, whenever you kiss me“—the opening line to “I Love How You Love Me,” a song I had co-written in 1961.

… Mr. Mann: For the bridge, Phil experimented on the piano with a “Hang On Sloopy” riff. It was brilliant. I built a melody on the riff while Cynthia shouted out lyrics: “Baby, baby, I get down on my knees for you” and so on. When we met the Righteous Brothers a few days later, we were nervous they might not like it.

Notice how the artists admit that they were influenced by and even borrowed from previous songs, such as one by the Four Tops, and Hang On Sloopy, and even one of their previous songs—but they are not even sure about the latter. Artists are usually not even completely aware of their influences, things that they borrow from and build on and remix. And this is as it should be.

Related posts:

• Everything is a Remix Part 4
• When remix culture becomes mainstream culture, is copyright doomed?
• Beethoven: Remixer, Pirate
• Your Start-Up Isn’t Unique, But That Doesn’t Matter
• Everything is a Remix–Part 3
• Steal Like an Artist and Relax: Original Is Relative
• Microsoft Co-Founder on Software “Borrowing”
• Everything is a Remix
• In Writing, Art, And Music, Everybody Steals
• Remix Artists Pogo Expecting To Be Sued By Disney For Releasing Latest Remix (Created For Disney)
• Masnick: Time To Remix Copyright Law: The Hip Hop Case Study

I’ve noted before how the US strongarms other countries to “strengthen” IP law, primarily at the behest of American music, movie, and pharmaceutical interests. See, e.g.:

• China and Intellectual Property
• The Economist on Patents and Innovation in China
• Intellectual Property Imperialism
• Free-trade pacts export U.S. copyright controls
• Wikileaks cables reveal that the US wrote Spain’s proposed copyright laws

Chinese Companies Again Using Patents To Punish Foreign Competitors: Apple Sued Over Siri In Shanghai

from the had-to-expect-this dept

For many years, US companies and government officials complained publicly and privately that China just didn’t “respect” patents. They would point to how various Chinese companies were famous for making knockoffs of various products as evidence of this, and they’d put strong diplomatic pressure on China to both “respect” foreign patents more and beef up its own patent system. Of course, for years, we’ve been warning about just how stupid this is. China recognizes that patents are really a protectionist tool, and is using them as such. It has certainly increasedits patenting effort… but nearly every single major patent lawsuit in China has been aboutpunishing foreign companies and blocking competition to domestic Chinese companies.

So it should come as little surprise to find out that a company in Shanghai, Zhi Zhen Internet Technology, is now suing Apple, claiming that voice-controlled virtual assistant Siri violates its patents. No one seems to know specifically what’s in the patent, but I do wonder if it matters. Like so many Chinese patent lawsuits this one just seems likely to end up with a foreign competitor being kept out of the market in favor of the domestic version.

And yet… American companies and politicians will still continue to insist that China needs to “strengthen” its patent system, even as Chinese companies and politicians must be laughing at just how self-defeating the Americans are. We’re literally urging them to set up a system that helps Chinese companies block American companies from their market.

Adam Kokesh, as noted in the post excerpted below, delivers a great short talk on IP. Related:

• Kinsella on Adam vs the Man: Copyright and Neo-Mercantilism
• On Adam vs the Man: Copyright and Neo-Mercantilism
• Adam the Man vs. IP

Adam Kokesh beautifully discerns and dismantles the numerous flaws surrounding intellectual property, as interpreted and enforced by the government, and the very negative role intellectual property has in limiting market competition and societal advancement. As Adam explains, intellectual property indeed does not help the “little guy,” it actually puts precisely the “little guy” at a severe disadvantage to corporate giants and those with the lawyers and resources to use arbitrary government intellectual property and patent laws (backed by government force, as with all laws) as a dangerous tool to reduce and/or prevent competition (and innovation).

Read more>>

The Techdirt post below by Glyn Moody (h/t Tim Swanson) notes that James Watson is strongly opposed to gene patents. It’s outrageous and contrary to the nature of science as an open learning process. Watson will also be featured in the upcoming documentary by David Koepsell, “Who Owns You?,” for which I was also interviewed (see Fund raising for feature documentary – Who Owns You?; Who Owns You? – A Documentary – Trailer; Who Owns You? — Gene Patent Documentary). You can see a glimpse of the Watson remarks at around 29 seconds in the trailer for the documentary, below. For more discussion of this issue, see my post Gene Patent Absurdity.

Who Owns You? – A Documentary – Trailer from Taylor Roesch on Vimeo.

James Watson, Co-Discoverer Of DNA’s Structure, Says ‘Patenting Human Genes Was Lunacy’

from the and-he-should-know dept

Techdirt has been covering the important Myriad Genetics case for a while. Although the CAFC decided that isolated genes could be patented, the Supreme Court has asked the appeals court to review the case in light of the former’s rejection of medical diagnostic patents.

The importance of this case is highlighted by the amicus curiae brief filed by James Watson, co-discoverer with Francis Crick of the structure of DNA, for which they received the Nobel Prize in Physiology or Medicine in 1962 (along with Maurice Wilkins for related work.) Watson makes his views plain from the start:

what the Court misses, I fear, is the fundamentally unique nature of the human gene. Simply put, no other molecule can store the information necessary to create and propagate life the way DNA does. It is a chemical entity, but DNA’s importance flows from its ability to encode and transmit the instructions for creating humans. Life’s instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts.

Watson recalls discussions on the topic during the $3 billion Human Genome Project to sequence human DNA as completely as possible:

Even at the early stages of the project, we were concerned about the issue of patenting human genes. Most, although not all, eminent scientists recognized that human genes should not be monopolized by patents. I believed at the time — and continue to believe — that the issue of patenting human genes went to the very crux of whether the information encoded by human DNA should be freely available to the scientific community. Some twenty years ago, I explained that patenting human genes was lunacy, and I was not a lone voice.

He also points out some concrete problems with gene patents in terms of their impact on assays (tests) that involve multiple genes:

If each of the human genes used in a new multi-gene assay are subject to patents, I fear that useful tests requiring multiple human genes will be unnecessarily delayed, become prohibitively expensive, or, worse yet, never be made available to patients at all. For a new assay using hundreds of human genes, the sea of patents and patent applications would create hundreds, if not thousands, of individual obstacles to developing and commercializing the assay. The best way, in my view, to resolve this problem is to eliminate the unnecessary patenting of human genes.

As this makes clear, if gene patents are permitted, patent thickets are likely to develop, which will delay new tests, and make them more expensive.

Aside from his position as one of the people that discovered the structure of DNA in the first place, Watson has another reason why his views on patenting genes carry some weight. As he relates in a footnote to his submission to the court:

Amusingly, after I gave my first presentation of our DNA structure in June 1953, Leó Szilárd, the Hungarian physicist and inventor of the nuclear chain reaction, asked whether I would patent the structure. That, of course, was out of the question.

Like Tim Berners-Lee with the World Wide Web, Watson declined to patent one of the most important discoveries of all time because he believed it was the right thing to do. Let’s hope the appeals court agrees with him when it hands down its decision on gene patents.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

It’s typical of artists to whine about sequels or modifications to their works, claiming that this “ruins” or harms the original work—even though the original work still exists in pristine form. Ridiculous. Here MGM is using copyright to censor an artistic work.

MGM sues over Raging Bull sequel

Studio calls follow-up film a “low-budget B-movie”

BY CATHLEEN FLAHARDY

July 6, 2012

In Patent Trolls Cost The Economy Half A Trillion Dollars since 1990 I noted a study by James Bessen, Michael Meurer, and Jennifer Ford, The Private and Social Costs of Patent Trolls, that showed that companies sued by patent trolls (non-practicing entities, or NPEs) have lost $500 billion from 1990 to 2010, with increasing annual costs of late, on the order of $80 billion per year over the last four years. Or as described by Bessen and Meurer in a new study, this paper was an estimate of “the total costs of NPE litigation for publicly listed firms using stock market event studies.”

The new “study complements our earlier study by obtaining estimates of the direct cost portion of total costs using data from a survey of defendants. Direct costs include the cost of outside legal services, licenses fees, and other direct costs incurred in response to NPE litigation risk.”

The new study, The Direct Costs from NPE Disputes, “estimate[s] that firms accrued $29 billion of direct costs in 2011.”

As Mike Masnick observes:

This does not include indirect costs, like the distractions of dealing with trolls or companies shutting down, products delayed or destroyed, etc. This is just about the direct costs, covering things like fighting in court and also settlement fights with the trolls. The study also found that small and medium businesses were the most impacted by this, often having to pay out to patent trolls (and to lawyers to deal with patent trolls).

I.e., the $29 billion cost imposed by patent trolls is conservatives—it underestimates the cost of patent trolls. And patent trolls are just a fraction of the costs imposed by the patent system as a whole, which I’ve estimated are at least $100 billion per year in the US alone, and that’s still a conservative estimate; I would not be surprised if it’s $300 billion, $500 billion, or even more (see Costs of the Patent System Revisited).

See also the summary of the study’s findings at the Coalition for Patent Fairness.