From The Raw Story:

American ISPs to launch massive copyright spying scheme on July 12

By Stephen C. Webster
Thursday, March 15, 2012 11:14 EDT

If you download potentially copyrighted software, videos or music, your Internet service provider (ISP) has been watching, and they’re coming for you.

Specifically, they’re coming for you on Thursday, July 12.

That’s the date when the nation’s largest ISPs will all voluntarily implement a new anti-piracy plan that will engage network operators in the largest digital spying scheme in history, and see some users’ bandwidth completely cut off until they sign an agreement saying they will not download copyrighted materials.

Word of the start date has been largely kept secret since ISPs announced their plans last June. The deal was brokered by the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), and coordinated by the Obama Administration. The same groups have weighed in heavily on controversial Internet policies around the world, with similar facilitation by the Obama’s Administration’s State Department.

The July 12 date was revealed by the RIAA’s CEO and top lobbyist, Cary Sherman, during a publishers’ conference on Wednesday in New York, according to technology publication CNet.

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Wired‘s Andy Baio reports that Yahoo has filed “a lawsuit against Facebook for allegedly infringing on 10 patents from their 1,000+ patent warehouse.” As Baio writes:

I’m no fan of Facebook, but this is a deplorable move. It’s nothing less than extortion, expertly timed during the SEC-mandated quiet period before Facebook’s IPO. It’s an attack on invention and the hacker ethic.

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Of course, this is nothing new. It’s a typical strategy used by patent wielders. As I wrote in Ideas Are Free: The Case Against Intellectual Property:

[Patent lawsuits are] also used in connection with IPOs (initial private offerings) of companies. Quite often one competitor will hold on to its patent, wait until their competitor files their S-1 to go public, and then they’ll hit them with a patent lawsuit because this has to be disclosed in the IPO, and it can damage or scuttle the IPO.

For example, a company called Optium went public in late 2006 and the company Emcore sued them for patent infringement as soon as they filed their S-1.¹

In another very recent case, which is ongoing now, a company called Neophotonics, which has recently filed its S-1 — they’re not public yet — has been sued along with three other defendants by Finisar for patent infringement. What’s interesting about this is that one of the patent claims — I’ve reviewed these — that is being asserted covers “a system and method for protecting eye safety during operation of a fiber optic transceiver.” So, in other words, so that the engineers working on the lasers don’t get their eyes burned, there’s an alarm set if you have too much power going to it. It’s something that has been used for years; it’s a common idea. Patents are supposed to be “nonobvious,” by the way. This is not.

And, of course, each of these defendants has countersued Finisar with their own patents. Now you have literally millions of dollars being spent by these five companies on legal fees because of this patent suit.

Patents are nothing but anti-competitive invasions of property rights.²

Update: now Yahoo is asserting patents against Facebook to f*ck with its IPO.

1. See this Optium 10-Q filed a short time later. [↩]
2. EU newsflash: patents are anticompetitive!; Intellectual Property Advocates Hate Competition; IP Rights as Monopolistic Grants to Overcome the Public Goods Problem; Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property. [↩]

According to a Facebook friend, “The same guy who sued John Fogerty for sounding too much like John Fogerty is now going after a 20-year-old pub in England.”:

Hobbit pub in Southampton threatened with legal action

Student Heather Cartwright: “Part of the wonder of this place is that you can come in and order a Gandalf”

Continue reading the main story

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A popular pub and music venue called The Hobbit has been threatened with legal action by US movie lawyers.

The Southampton pub has been accused of copyright infringement by lawyers representing the Saul Zaentz Company (SZC) in California.

The company owns the worldwide rights to several brands associated with author JRR Tolkien, including The Hobbit and The Lord of The Rings.

Landlady Stella Mary Roberts said: “I can’t fight Hollywood.”

The pub in Portswood, which is popular with students, has traded with the name for more than 20 years.

It features characters from Tolkien’s stories on its signs, has “Frodo” and “Gandalf” cocktails on the menu, and the face of Lord of the Rings film star Elijah Wood on its loyalty card.

A letter from SZC asked it to remove all references to the characters.

The company asserts it has “exclusive worldwide rights to motion picture, merchandising, stage and other rights in certain literary works of JRR Tolkien including The Lord of the Rings and The Hobbit”.

‘Absolutely stunned’

The Lord of The Rings films and the forthcoming adaptation of The Hobbit, made by New Line Cinema, have been licensed from SZC.

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In Slate’s Farhad Manjoo: Use Crowdsourcing to Improve Patents and Kill Patent Trolls, I explained why the focus on patent trolls is misguided; and why using crowdsourcing and incentives to increase the quality of prior art brought to the patent office’s attention, to improve patent “quality” by weeding out “bad patents”–is also misguided. And that improving patent quality will address the patent troll problem. And that improving patent “quality” is not a desired solution since the low quality of patents and the patent examination process has little to do with the threat patents pose to innovation and the economy.

Derrick Harris’s Gigaom post, Can big data fix a broken system for software patents?, is also on the wrong track. The post explores various proposals to use “data analytics” to improve prior art searches for fields like software patents.

Big data won’t solve all the complaints people have about patents, but it could make life a lot easier for the inventors, attorneys and examiners tasked with determining whether a patent infringes a previous patent, or is even patent-worthy in the first place. The question now is whether the USPTO wants to leave simplification of the process in the hands of private parties like IP Street, or if the agency wants to bring a few big data experts on board and improve what it’s able to offer those who rely on it.

For the same reasons as I laid out in the Manjoo post, this ain’t gonna do the trick. Improving prior  Even if every software patent that issues is 100% “valid” (that is, non-obvious and novel in view of all prior art), they are still a threat to property, liberty, innovation, and the economy. They are still anti-competitive; the very  purpose of patents is to protect favored companies from competition. (See EU newsflash: patents are anticompetitive!; Intellectual Property Advocates Hate Competition; IP Rights as Monopolistic Grants to Overcome the Public Goods Problem; Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property.)

Improving prior art databases or search methods will not do much good. Nor will addressing the “patent troll” problem. The problem is not trolls, overbroad patents, junk patents, inept patent examiners, software patents, etc. The problem is the very idea of patents.

And why do we want to “make life a lot easier for the inventors, attorneys and examiners tasked with determining whether a patent infringes a previous patent, or is even patent-worthy in the first place”–? Why make it easier for a patent examiner to issue a patent? Why make it easier for the attorney for a patent aggressor to determine that a competitor is infringing the patent? Why improve the overall impression that patents are legitimate by improving patent quality? The truth is nothing is “patent-worthy”. Why pretend that any invention “really” “deserves” a grant of monopoly privilege from the criminal-protectionist state?

As for real reforms: I laid out some suggested incremental patent and copyright reforms in Radical Patent Reform Is Not on the Way and How to Improve Patent, Copyright, and Trademark Law. In the case of patents, significant reform would include things like:

• Reducing the Patent Term
• Removing Patent Injunctions/Providing Compulsory Royalties
• Adding a Royalty Cap/Safe Harbor
• Reducing the Scope of Patentable Subject Matter
• Providing for Prior-Use and Independent-Inventor Defenses

I was a guest on TWiL (This Week in Law) yesterday (Mar. 9, 2012), Episode 152, “Second Springtime For Hitler,” discussing copyright reform and constitutionality, first monkey pictures now bird songs?, sneaking stuff through backscatter scanners, and more. Host: Denise Howell; Guests: Stephan Kinsella and Adam Dachis of LifeHacker.com.

Nice overview of the case against IP by Chase Voluntaryist Rachels.

From Roderick Long at the AAEBlog:

The Girl With the Xeroxed Tattoo

Mar 06

By Roderick

Warner Bros. is “ditching its drama pilot about a crime-solving girl hacker who teams up with a male police detective,” because Sony Pictures is “threatening legal action over similarities” with The Girl With the Dragon Tattoo.

Attempts to decrease the similarities by “turning the white male cop into a black female lawyer and giving the loner hacker a boyfriend” apparently weren’t good enough, because “the series is based around [sic] a hacker.”

Wtf? Sony claims ownership of the mere concept of having a hacker as a main character?

Or is it just that it’s a female hacker? Maybe DC comics should be suing Sony then.

In related news, the Moffat-Vertue axis is still sabre-rattling against CBS for daring to imitate the idea of an updated Sherlock Holmes series.

Now I love the hell out of Sherlock, and I doubt that CBS’s effort will even remotely measure up. But before the BCC folks decide to resort to violence over this, they might remember that the idea of Holmes-in-the-present-day is not exactly one they invented.

From Slashdot (h/t Peter Surda):

Patent blogger Dennis Crouch writes on Patently-O of a catch-22 for attorneys. Patent attorneys are required to submit all prior art that they know of to the patent office. Failing to do so is an ethical violation, and can result in a patent being invalidated. But now the Hoboken Publishing Company and the American Institute of Physics are suing a major patent firm for copyright infringement, because they submit articles to the patent office without paying a separate royalty.

What’s this world coming to when one state granted of monopoly privilege interferes with the process for obtaining another state grant of monopoly privilege? They’re supposed to complement each other!¹

1. See “Controls breed controls, Monopolies breed monopolies”; Microsoft Copyrights –> Patent Dominance. [↩]

See “Copyright is Unconstitutional” for an update:

Jason Beesinger called to my attention an interesting post by Terry Hart, “Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Part 2.”Hart makes the intriguing observation that until a few decades ago there was virtually no  “scholarship concerning a potential conflict between the Copyright Clause of the US Constitution and the free speech and press protections of the First Amendment.” As he notes:

Eldred devoted only two sentences to the history of the two clauses: “The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.”

Hart then takes up my argument in this post, that copyright is unconstitutional because the First Amendment came after, and thus partially overrides the copyright clause, and observes:

Kinsella is not the first to say this. For example, this is from a 1986 law review article: “Arguably, then, the [Copyright] Act is unconstitutional, since the free speech guarantee is an amendment which supersedes prior inconsistent constitutional text.”

The quoted article is David E. Shipley, Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises, 1986 BYU Law Review 983, 985 (1986). However, Shipley ultimately rejects the argument:

Notwithstanding these arguments, … the copyright law is constitutional.

After all, we can’t have an “absolutist” view of the First Amendment. Why, that “would mean that perjury, obscenity and mail fraud were constitutionally protected.” Heavens to Betsy! We can’t have that, now can we? Ergo, because “we” “need” to outlaw … obscenity … copyright law must be okay even though it seems to fly in the face of the First Amendment. Whatever.

Hart, who elsewhere on his blog frequently and positively cites the work of pro-IP Objectivist Adam Mossoff, unsurprisingly rejects my  argument, and correctly noting that it is a “minority” position. The majority position is, by contrast: “The view of the First Amendment entirely displacing the earlier text is universally rejected, I think properly, as to copyright.” (C. Edwin Baker, First Amendment Limits on Copyright, 55 Vanderbilt Law Review 891, 893 (2002).)

Hart then finds another problem with my argument:

But there’s an even more compelling reason why the subsequent adoption of the First Amendment wouldn’t have or wasn’t intended to impact Congress’s copyright authority at the time.

Twelve of the original thirteen US states (Delaware was the lone exception) adopted copyright acts between 1783 and 1786 — before the current Constitution replaced the Articles of Confederation.

Of those twelve colonies, five of them provided for the freedom of the press in either their state constitutions or separate bills of rights before passing their own copyright laws: Virginia,⁸ Pennsylvania,⁹ Georgia,¹⁰ South Carolina,¹¹ and Massachusetts.¹²

Two of the colonies did not enact freedom of the press clauses until after passing their own copyright acts¹³ while the remaining five did not include “bill of rights” style provisions in their constitutions prior to the ratification of the US Constitution.¹⁴

So by the time delegates arrived to draft the US Constitution, over one third of the states had enacted copyright legislation after providing for freedom of the press. This lends solid support to the idea that early US copyright law was perceived as being wholly consistent with the guarantee of a free press.

I don’t find this wholly persuasive. The fact is that copyright does cause censorship and thus infringes freedom of press and speech, which is protected by the First Amendment. Since the latter came later, it supersedes the former. The fact that some people did not “perceive” there to be a conflict does not mean there is not. (Lysander Spooner, whom Hart cites approvingly on the one issue Spooner was bad on—IP (see Hart’s post 15 Objections to Copyright from 1855)—also argued that even slavery was originally unconstitutional even though it was contemplated by the text (see n.3 and text at n. 3 above). The First Amendment-vs-copyright argument is not nearly as much a stretch as Spooner’s argument re slavery.) If some state legislators felt copyright and free speech were compatible, they were simply wrong. Their error does not change the incompatibility between two conflicting provisions of the federal Constitution. The question is whether copyright law is incompatible with the First Amendment, not whether state legislators around the same time thought they were compatible.

I’ll also say that the Bill of Rights, in my view, only affected the federal government’s power to enact copyright law. This is because the Bill of Rights limits federal, not state power—e.g. there were established state religions in some of the States in 1791, such as Congregationalism in Massachusetts. So even if some states had copyright law that was held by them to be compatible with their own constitutions, and even if the First Amendment would not affect those state laws, this does not mean the fedgov had the authority to enact copyright, if it is prohibited by the First Amendment.

Consider also that in Thomas Jefferson’s Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits), he proposes to James Madison, then in the process of drafting the Bill of Rights, that the following be incorporated into the Bill of Rights:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.⁷

If such a provision had been included, then there could be no argument that copyright is unconstitutional (though copyright longer than X years would be, unlike now). The courts would have to find a “balance” between the conflicting free speech rights and the copyright clause. But the new copyright-monopoly amendment was not added to the Bill of Rights. The old 1789 copyright clause was left alone. That means, to my mind, that the 1791 First Amendment supersedes the copyright clause to the extent they are incompatible.

Finally, let me say that I agree with John Hasnas that statutory law—and the Constitution is a statute—is often vague and ambiguous. There is not always an “objective meaning” to “find.”⁸ Given this, there is nothing wrong with interpreting ambiguous provisions in favor of liberty and justice.⁹ Since copyright is unjust and violates rights, and since it conflicts with free speech rights (which can be justified as a type of property rights and/or as a prophylactic limitation on dangerous state power), and since there is a decent argument against the copyright law, this is the construction we should favor—just as we ought to favor a construction of the Constitution that prohibits slavery than one that permits it or establishes it. The goal is justice, not finding the “right” interpretation of a statist document that often has no objective interpretation anyway.

This is especially so in the case of copyright, which is coming to be one of the greatest threats to liberty and the most dangerous weapons in the state’s arsenal.¹⁰ It is especially important to defeat copyright, and to use all the arguments at our disposal to combat it.

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As I have discussed before, the state is schizophrenic. It grants monopolies aimed at limiting competition (patents and copyright), and then penalizes companies for using (“abusing”) them, in contravention of state antitrust law–so that there is a “tension” between these state laws. Then courts have to “balance” these against each other. Each state law gives the state an excuse to ratchet up its power. Here’s an idea: get rid of both antitrust and patent law.¹ (Likewise, there is also a “tension” between copyright censorship, and the right to free speech.)²

A recent illustration of this can be seen in the Engadget post FTC: Western Digital and Hitachi must give assets and IP rights to Toshiba:

Thought everything was looking rosy for the hard drive hitch of the year? Well, it looks like Federal Trade Commission reckons the union of Hitachi and Western Digital isn’t quite there just yet, ordering that the new company would have to shed some of its assets to Toshiba. The FTC wants to ensure a competitive climate in the 3.5-inch hard drive market and avoid Western Digital and Seagate — the two largest HDD manufacturers — carving up the whole sector between them. According to the FTC’s proposals, Toshiba has to receive the production assets needed to equal Hitachi’s current HDD market share, alongside access to Western Digital’s research and development resources and licenses to its intellectual property. Regulators had previously stated that WD could expect to sell on some of its production assets in order to get the tie-up okayed. Western Digital now has 15 days to hand over these assets to Toshiba — who, presumably, aren’t complaining — once the deal with Hitachi is finally inked.

1. See EU newsflash: patents are anticompetitive!; State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law; The Schizo Feds: Patent Monopolies and the FTC; see also When Antitrust and Patents Collide (Rambus v. FTC); Antitrust vs. Trademark Law; Price Controls, Antitrust, and Patents; IP vs. Antitrust; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste. [↩]
2. Should Copyright Be Allowed to Override Speech Rights? [↩]
3. State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law; Intellectual Property Advocates Hate Competition; IP Rights as Monopolistic Grants to Overcome the Public Goods Problem. [↩]
4. The Microsoft-Apple Gesture Oligopoly; Controls breed controls, Monopolies breed monopolies; The Patent Defense League and Defensive Patent Pooling; Are Patents Needed to Make Up for FDA Kneecapping?; Nortel Patents Sold for $4.5 Billion to Consortium Which Includes Apple; Apple vs. Microsoft: Which Benefits more from Intellectual Property?; Patent Cross-Licensing Creates Barriers to Entry. [↩]
5. See Abolish antitrust law and the real monopoly: the state. [↩]

From the Mail online:

Families face having their internet cut off after laws to curb ‘piracy’ are upheld in court

By Sean Poulter

Last updated at 6:09 PM on 6th March 2012

• Comments (57)
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Families who illegally download movies, music or books will appear on a blacklist and might – in future – have their internet services cut off.

The tough new regime, which is included in the Digital Economy Act, was upheld by the Court of Appeal  today after judges threw out a legal challenge.

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Nice post by Masnick on a growing resistance in Europe to database rights: EU Court Ruling Saying Sports Schedules May Not Covered By Copyright Pushes Back On Dangerous Database Copyrights. The US years ago rejected the sweat of the brow doctrine and thus made it harder to use copyright for mere collections of information like phone books, maps, and the like.

See also Peter Klein’s post Can Prices be Owned?, where I made the following comment:

My personal view is obvious here–prices are not scarce resources, but just facts, or information about facts; they of course are not property. (See my Against Intellectual Property article for elaboration.)

As to what the law actually is … I think it would be governed by cases like the Feist case, which said there is no copyright in mere collections of data, like a map… since it’s not original. It’s just facts. The Court said that the old idea of “sweat of the brow” is not enough. Just because you put work into assembling the information does not mean it’s original. This is why Congress tried to pass a database rights act a few years back, but never did.

For more on Feist see the Wikipedia entry.

I’ve appeared before as a guest panelist on This Week in Law (TWiL), and will be on again this coming Friday, March 9, at 1pm CST. Should be fun. The hosts, Denise Howell and Evan Brown, are always excellent and fun.