Great Libertarian Standard post by Jeff Tucker:

[This article is based on a speech I gave at the University of Alabama, Birmingham, December 5, 2011.]

You know that anti-piracy video you sometimes see at the beginning of movies? It explains how you wouldn’t steal a handbag, so neither should you steal a song or movie by an illegal download. Well, it turns out that the guy who wrote the music for that short clip, Melchoir Rietveldt, says that his music is being used illegally. It had been licensed to play at one film festival, not replayed a million times in DVDs distributed all over the world. He is demanding millions in a settlement fee from BREIN, the anti-piracy organization that produced the thing.

Interesting isn’t it? When you have hypocrisy that blatant, criminality this rampant, practices called piracy this pervasive – it reminds you of the interwar Prohibition years – you have to ask yourself if there is something fundamentally wrong with the law and the principles that underlie the law. Yes, people should keep to their contracts. But that’s not what we are talking about here; this case is being treated not as a contract violation but a copyright violation, which is something different. We are dealing with a more fundamental issue. Is it really stealing to reproduce an idea, an image, or an idea? Is it really contrary to morality to copy an idea?

The verdict here is crucially important because ever more of the state’s active intervention against liberty and real property is taking place in the name of intellectual property enforcement. The legislation SOPA could effectively end Internet freedom in the name of enforcing property rights.

If people who believe in liberty do not get this correct – and it no longer possible to stand on the sidelines – we will find ourselves siding with the state, the courts, the thugs, and even the international enforcement arm of the military industrial complex, all in the name of property rights. And that is a very dangerous thing at this point in history, since IP enforcement has become one of the greatest threats to liberty that we face today.

Another case in point to consider here. This week a judge in Nevada, acting in a case brought by the luxury Chanel, ordered the takedown of some 600 websites that he alone was guilty of trafficking in pirated products, that is selling fake Chanel products. There was no extensive research done; the claim of the company was enough. The judge then issued an order that went beyond the parties to the lawsuit itself and ordered the complete de-indexing of such site by GoDaddy, Facebook, Google, Twitter, Yahoo and Microsoft. Meanwhile, there is legislation before Congress that would permit similar takedowns of any website regarded as a violator of intellectual property.

Every time one of these cases comes along, I’m reminded a scene from the streets of Washington, D.C. that I saw years ago. Some immigrant families were doing a brisk business in knock-off fashion goods and watches. A new convert to the cause of free enterprise, I stood there in admiration of their entrepreneurial skill. They weren’t ripping anyone off. The good looked very much like the real thing but with a few difference, and the consumer was not defrauded in any way. All buyers knew exactly what they were getting, and they were also aware that they were getting their goods at a tiny fraction of the price they would pay for the real thing at the department store.

I recall thinking: isn’t the market grand!

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An excellent post from my buddy and co-blogger at The Libertarian Standard. For related comments, see: IP and Aggression as Limits on Property Rights: How They Differ, The Non-Aggression Principle as a Limit on Action, Not on Property Rights, and Objectivist Greg Perkins on Intellectual Property, text at n.6.

The problem is also: they are saying that because property rights are not absolute, we have no right to complain about IP limiting property rights. But that doesn’t follow anyway. Just because property rights are not absolute (whatever that means), and can sometimes be limited, doesn’t mean just any limit is just. Otherwise you could say “hey what’s wrong with me robbing you? Property rights are not absolute ya know!”

One of the reasons why IP-abolitionists oppose “intellectual property” is because IP monopolies in effect boil down to a restriction on existent ownership rights. To this charge, a common retort heard even from libertarians, is that all property rights are not absolute (i.e. “you can’t shoot your gun wherever you choose”, “the right to swing your fist ends by my nose”, etc.) and so too IP laws can morally and thus justly restrict people from using certain configurations or arrangements of their already owned property.

It occurred to me that this is a mere semantic quibble. If we substitute the word “to” for the word “with”, we no longer have an equivalence between IP and those examples. For argument’s sake, we can even agree with the gist of those examples and suppose that an owner may not always have the right to do certain actions with his property but this wouldn’t contradict a fundamental right to do certain actions to his property, which is more precisely what anti-IP arguers hold.

This retort focuses solely on the restrictionist view in that it’s [morally] just to have laws that restrict existent property rights. But those examples are a flawed comparison to begin with; we would never hold that property rights to a gun would allow the violation of another persons’ property.

This is because ownership isn’t a bundle of certain permissible actions or rights, but rather the totality of  a “negative” quality– a restriction upon others from violating the owner’s right to control. In any given context, violations of property rights is what determines the impermissibility for any given action, not a deficiency in the ownership rights of the hypothetical gun or swinging-fist.

No, not me, but Canadian Senate Speaker Noel Kinsella, who recently permitted legislation to go forward that will “end the Canadian Wheat Board’s grain marketing monopoly.”

h/t Skip Oliva, not related to Phil Hendrie’s Dave Oliva.

Google Currents is a just-released free news reader app for iOS and Android that is intended as a competitor for Flipboard and Yahoo! Livestand.

Once you have installed the app on your phone or tablet, you can add the Currents edition of C4SIF by navigating to this url in your browser:

http://www.google.com/producer/editions/CAowg7wj/center_for_the_study_of_innovative_freed.

If you haven’t installed the app already, you will be prompted and given options to do so.

Google already has “more than 150 publishing partners to offer full-length articles from more than 180 editions including CNET, AllThingsD, Forbes, Saveur, PBS, Huffington Post, Fast Company and more. Content is optimized for smartphones and tablets, allowing you to intuitively navigate between words, pictures and video on large and small screens alike, even if you’re offline.”

Find out more from the official announcement on the Google Mobile blog.

Here’s a video introduction:

As reported by Declan McCullagh on CNET (see below), ICE seized a hip-hop website for over a year, with no due process, for hosting pirated music–even though the site had authorization to host the music. Expect far more of this if/when the dreaded fascist SOPA passes.

Update: Story originally broken by Masnick here: Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…

 

A bizarre attempt by the U.S. Department of Homeland Security to seize the domain name of a hip-hop blog accused of copyright infringement ended today with the government abruptly abandoning the lawsuit.

Government officials initially trumpeted the seizure of the music blog, DaJaz1.com, and 81 others as an example of the law prevailing over pirates. Attorney General Eric Holder warned at the time that “intellectual property crimes are not victimless,” and Immigration and Customs Enforcement (ICE) director John Morton proclaimed that “today, we turn the tables on these Internet thieves.”

Dajaz1.com before Homeland Security’s takedown, captured by Archive.org. Click for larger image.

The only problem? It turns out that Holder’s and Morton’s claims appear to have been, well, exaggerated.

That started to become apparent when Dajaz1’s editor, who’s known as Splash, showed The New York Times e-mail messages from record label employees sending him unreleased songs. ICE had claimed that the music was “unauthorized.”

Then ICE treated the case as practically top-secret, filing all the court documents under seal, says Andrew Bridges, a partner at the Fenwick and West law firm in San Francisco who’s representing Dajaz1 pro bono.

“They kept getting extension after extension from the court under seal without showing me any papers whatsoever,” Bridges told CNET today.

What’s unusual here is that normally U.S. law strongly discourages efforts to censor Web sites before a full trial can be held. That’s called “prior restraint,” and the U.S. Supreme Court ruled in the Pentagon Papers case that even top-secret national defense information did not qualify for temporary, pre-trial censorship.

But in the DaJaz1 case, a series of allegations of dubious reliability offered in an ICE affidavit were enough to censor a popular music blog–which had been featured on MTV News a few months earlier–for over a year.

 

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I received three very useful and taxpayer-subsidized degrees from LSU. But I’ve never given them a dime, and never will (I do donate to my private high school, Baton Rouge’s Catholic High School). Up till now, there were two reasons for this. First, it’s a state university. I think they should be abolished. Second, like most modern universities, it is infected with, and propagandizes its students with, a bunch of horrible socialist, leftist, and statist ideas (luckily my two engineering degrees were largely immune from this, since you don’t have time for normative nonsense when trying to figure out electromagnetic fields, digital logic, and semiconductor physics; and even my law studies were mostly practical).

But now I have a third reason. I’m a big LSU football fan, and of course and am enjoying the current season, with LSU at 13-0 and slated to play Alabama (second only to Michigan on the annoying fans index) for the national championship next month. One of LSU’s most impressive players this year is sophomore cornerback Tyrann Matthieu, truly an amazing athlete, who has garnered the nickname “Honey Badger” “for his tenacious ability to play extremely tough football against much larger opponents, as well as his knack for making big plays”.  As the Wikipedia entry for Honey Badger notes, “The nickname became popular during the 2011 college football season, when it was often referenced in the national media. ‘He takes what he wants’ said CBS sportscaster Verne Lundquist of Mathieu.” Other expressions used for him are “Honey Badger don’t care”.

Well, according to the “LSU Compliance,” Honey Badger Does Care–if you use “honey badger” without LSU’s permission and paying them an appropriate fee! This claim is surely false, as any permission is granted by, and any fees paid go to, LSU, not Mathieu. Whose nickname is it, anyway?

As the entry specifies:

The LSU Compliance Office has issued several Cease & Desist notifications for products including the name, likeness and/or image of LSU football student-athlete Tyrann Mathieu.

Please be advised that the sale of any products and/or advertisements including the name, likeness or image of this individual or any other LSU student-athlete is in violation of NCAA Bylaw 12.5.2.2 and could have a negative impact on the involved student-athlete’s eligibility.

Apparel or paraphernalia including the phrase “Honey Badger” accompanied by the number 7 or the individual’s name or any other variation thereof (e.g., TM7, TM, HB7, etc.) is prohibited. Because it is a recognizable nickname, “Honey Badger” is considered a likeness of Tyrann Mathieu under NCAA regulations.

?Examples of Impermissible Products/Advertisements ?
The word “Honey Bader” or an image of a Honey Badger accompanied by?:	The number 7?
?	TM7 (or any other likeness)
?	Name of individual
?	Image of individual?
?	?LSU

LSU then “helpfully” provides examples of “impermissible items” for which they have issued “Cease & Desist notifications”–just to let you know they mean business.

Truly disgusting, but par for the course for our mercantilist, protectionist, IP-centric form of corporatism in which the powerful state helps big corporations (and socialist state universities) bully individuals and small competitors with pseudo-“property rights” like patent, trademark, and copyright.

I’m sure Alabama pulls the same stunts. Otherwise I might have to hold my nose and pull for them on Jan. 9.

(h/t Skip Oliva)

[TLS]

As reported in Disney Seeking Legal Action against Pixar Petroleum:

Word came Monday that a Canadian oil company had made free use of the Pixar brand in dubbing its new division, Pixar Petroleum, Ltd. Disney, owner of all Pixar trademarks, stated this week “we intend to take the appropriate legal action.”

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Of course, Disney is a notoriously aggressive copyright bully and lobbyist, having pushed Congress to add 20 years to the copyright term a while back to keep their Mickey Mouse monopoly going a bit longer. So it’s no surprise they also use trademark as one of their anti-competitive weapons. Disney even apparently has hundreds of patents to use against upstarts and competitors.

(h/t Skip Oliva)

From Masnick at Techdirt. Yet another patent outrage. Though I am not sure why people are surprised by this. I doubt the Court would be wrong to permit such patents. This is a natural outcome of the entire idea of patents. (In 1997 patent law was amended to exempt certain surgical methods from patent liability,¹ but I doubt this will apply to these medical diagnostic techniques.)

See also: Cato/Reason/CEO brief opposing medical diagnostic process patents as violating freedom of speech

Supreme Court Seems Ok With Patenting Medical Diagnostics

from the bad,-bad-news dept

We’ve covered the Mayo v. Promethus Labs case for a while now. This is the lawsuit over the patentability of medical diagnostic techniques. If that sounds crazy to you, you’re not alone. Promethius got a patent on a specific way of testing for a disease, and got into a legal fight with the Mayo Clinic, because Mayo dared to diagnose without paying them. Tragically, an appeals court said this was fine. Many doctors were, quite understandably, horrified at all of this. The idea that they could violate a patent merely by understanding the science and running a test to detect an ailment? Horrifying and ridiculous. When the Supreme Court agreed to pick up the case, we had hoped it meant that some common sense might prevail.

However, that’s looking doubtful. The oral arguments were just heard in the case, and as Tim Lee points out, they don’t sound good. You can read the full transcript below, but the oral discussion was extremely narrowly focused on the patentability of this particular diagnostic test, with many comments suggesting that the patentability of a general diagnostic test is not even in question. In fact, Mayo’s own lawyer seemed to concede the point and didn’t even bother to argue the issue:

Unfortunately, the justices seemed oblivious to these arguments. And the man who should have been making them, Mayo counsel Stephen Shapiro, completely ignored them. Instead, he seemed to concede the legality of medical patents in general, and focused on nitpicking the details of Prometheus’s patent. Specifically, he noted that the patent covers a broad range of metabolite levels and applies for many different autoimmune diseases, and argued that this made the patent invalid.

Asked by Justice Kennedy if a more specific and complex diagnostic technique involving “two or three different drugs” could be eligible for patent protection, Shapiro said yes. “If it leaves room for others to have their own tests with different numbers and different procedures so that it isn’t just one test for the whole country, then yes, if it’s specific enough,” he said. “The specificity is the key.”

Justice Scalia pointed out that making patent-eligibility turn on how complex the diagnostic strategy was, or on how many diseases it claimed to address, was totally unworkable. Shapiro’s proposal, he said, was “not a patent rule that we could possibly apply.”

Justices Scalia and Breyer showed some skepticism that patents could cover the use of scientific correlations in medical practice. But the other justices expressed no such skepticism. At one point, Justice Kagan offered some advice to Prometheus’s lawyer. “What you haven’t done is say at a certain number you should use a certain treatment, at another number you should use another treatment,” she said. “I guess the first question is why didn’t you file a patent like that? Because that clearly would have been patentable. Everybody agrees with that.”

Except, as Lee notes, not everyone agrees with that. In fact many different groups, including the American Medical Association, argued exactly the opposite in briefs on the case.

For what’s it worth, what’s discussed in the oral hearing is not always all that relevant to how the case actually turns out. The briefs are often more important. But, either way, it’s not looking good. After a few good years in the mid-2000s, where the Supreme Court really beat back patent excesses, the more recent patent courts have been timid to the point of ridiculous. In the end, it seems like this case may turn out like the Bilski case, where the Supreme Court had the opportunity to rule broadly on software and business method patents, but chose to ignore the issue, focusing only on the specific patent in question.

This seems like a huge waste of the Supreme Court’s time and collective intellect. People look to SC rulings to set precedent and clarify points of law. Ruling extremely narrowly based on just the specifics of the patent itself doesn’t clear up any confusion. Instead, it just makes things worse.

1. See my articles Radical Patent Reform Is Not on the Way and How to Operate Within the Law: Patents on Medical Procedures, and my post Kinsella on The Medical Freedom Report: Patents on Medical Technology and Pharmaceuticals. 35 USC Sec. 287(c) reads, in part:

   (c)

   (1) With respect to a medical practitioner’s performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.

   (2) For the purposes of this subsection:

   (A) the term “medical activity” means the performance of a medical or surgical procedure on a body, but shall not include (i) the use of a patented machine, manufacture, or composition of matter in violation of such patent, (ii) the practice of a patented use of a composition of matter in violation of such patent, or (iii) the practice of a process in violation of a biotechnology patent.

   (B) the term “medical practitioner” means any natural person who is licensed by a State to provide the medical activity described in subsection (c)(1) or who is acting under the direction of such person in the performance of the medical activity.

   (C) the term “related health care entity” shall mean an entity with which a medical practitioner has a professional affiliation under which the medical practitioner performs the medical activity, including but not limited to a nursing home, hospital, university, medical school, health maintenance organization, group medical practice, or a medical clinic.

   (D) the term “professional affiliation” shall mean staff privileges, medical staff membership, employment or contractual relationship, partnership or ownership interest, academic appointment, or other affiliation under which a medical practitioner provides the medical activity on behalf of, or in association with, the health care entity.

   (E) the term “body” shall mean a human body, organ or cadaver, or a nonhuman animal used in medical research or instruction directly relating to the treatment of humans.

   (F) the term “patented use of a composition of matter” does not include a claim for a method of performing a medical or surgical procedure on a body that recites the use of a composition of matter where the use of that composition of matter does not directly contribute to achievement of the objective of the claimed method. [↩]

As discussed in the Techcrunch post Android Researcher Hit With C&D After Dissecting Monitoring Software, Android security researcher Trevor Eckhart posted about the mobile tracking software from a company called Carrier IQ. As explained in the Techcrunch post:

Carrier IQ pitches themselves as the “leading provider of mobile service intelligence solutions,” and provides their services to a number of players in the mobile space. The company’s main U.S. carrier partner is Sprint, and Eckhart claims that their tracking software appears on Android devices from HTC and Samsung among others.

According to Eckhart’s research, Carrier IQ is capable of monitoring everything from where the phone is to what apps are installed, and even which keys are being pressed. Carrier IQ says that the information is collected to give carriers insight into how the mobile use experience can be improved. It sounds like a noble enough goal, except Eckhart found that the software could run without the user’s knowledge or consent as was the case with the HTC phones he tested.

Carrier IQ’s general counsel then fired off a vicious cease-and-desist letter [PDF] against Eckhart, “claiming that he committed copyright infringement by reproducing some of the company’s training materials in his post and that he made ‘false allegations’ about the nature of their software.” In other words, Carrier IQ was trying to squelch criticism of it by using copyright law to censor its critic. These tactics are one reason I not only despise copyright, but that I have begun to really detest what the legal profession has become: a bunch of arrogant bullies. The C&D letter is outrageous: it gave Eckhart two days to commit to all kinds of groveling, making a public apology, replacing his original blog post with one written by Carrier IQ, and so on. While threatening him with tens of thousands of dollars of damages, if not more, with some dubious claims, as discussed in a recent episode of This Week in Law. For example, according to some of the legal pundits on TWiL, the statutory damages and attorneys’ fees threatened are available only for a registered copyright work, and the material in question did not appear to have been registered. Further, Ekhard would probably have a fair use defense (as the Electronic Frontier Foundation (EFF) argues as well).

In any case, after its threats was noticed and blogged and tweeted about on the Internet, and after Eckhart bravely contacted the EFF for help instead of backing down, Carrier IQ realized what a PR disaster its threats had created, and their CEO retracted their C&D and publicly apologized to the developer. (See Techcrunch’s post Carrier IQ Retracts Their C&D, Apologizes To The Android Researcher They Hassled.) From the release:

As, of today, we are withdrawing our cease and desist letter to Mr. Trevor Eckhart. We have reached out to Mr. Eckhart and the Electronic Frontier Foundation (EFF) to apologize. Our action was misguided and we are deeply sorry for any concern or trouble that our letter may have caused Mr. Eckhart. We sincerely appreciate and respect EFF’s work on his behalf, and share their commitment to protecting free speech in a rapidly changing technological world.

The full text of the release is below. The EFF was truly heroic here (see Eckhart’s post Why I love the EFF; and EFF’s post Carrier IQ Tries to Censor Research With Baseless Legal Threat).

[TLS]

On the latest This Week in Law, an excellent podcast I’ve appeared on a couple times, at the 50:30 mark, discussing the Grooveshark copyright controversy, says that in discussing these services, sometimes we ought to perhaps step back and “channel Stephan Kinsella” and not automatically assume that there is something wrong with copyright infringement, that we should not automatically assume that the content producers’ desire to have copyright is correct. Good for Evan. And h/t me.

From my post at TLS.

Update: See more posts on Internet freedom.

Last year, in Hillary Clinton’s Historic Speech on Global Internet Freedom, Adam Thierer praised Hillary Clinton for a speech drawing

a bold line in the cyber-sand regarding exactly where the United States stands on global online freedom. Clinton’s answer was unequivocal: “Both the American people and nations that censor the Internet should understand that our government is committed to helping promote Internet freedom.” “The Internet can serve as a great equalizer,” she argued. “By providing people with access to knowledge and potential markets, networks can create opportunities where none exist.”

But of course this is a complete sham. The fedgov and the Obama administration may not like it when other oppressive regimes restrict their own subjects’ access to technology, when this is contrary the American state’s geopolitical “interests,” but the cekatS is not at all in favor of Internet freedom. Witness the relentless push to keep increasing copyright law and its insidious effect on Internet freedom. Thus, Obama signed the horrible ACTA (probably unconstitutionally), and his administration is also: using other trade agreements to export the draconian DMCA-type copyright provisions to other countries; and has proposed to expand “tough” enforcement of copyright, including wiretaps and other legislation to curb “piracy” on the Internet. And it’s why

U.S. Copyright Czar and Obama administration officials secretly cooperate with Hollywood, recording industry and ISPs to disrupt internet access for users suspected of violating copyright law … Obama administration’s cozy relationship with Hollywood and the music industry’s lobbying arms and its early support for the copyright-violation crackdown system publicly announced in July.

And it’s why we have the looming threat of SOPA, which endangers Internet freedom,

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From the heroic Glyn Moody at TechDirt, yet another reason to oppose the insane, evil SOPA. Washington is run by a bunch of raving lunatics. God help us all.

More Collateral Damage From SOPA: People With Print Disabilities And Human Rights Groups

from the add-them-to-the-list dept

As people wake up to the full horror of what SOPA would do to the Internet and its users, an increasing number of organizations with very different backgrounds are coming out against it. Here’s one more to add to that list, from the world of non-profit humanitarian groups.

As Jim Fruchterman, president of the Silicon Valley-based Benetech, explains in his post “Why I am Scared of the SOPA bill“:

We write software for people with disabilities as well as human rights and environmental groups. We’re against piracy, and have made commitments to authors and publishers to encourage compliance with copyright law.

So, we shouldn’t have anything to fear from a bill entitled “Stop Online Piracy Act,” right? Unfortunately, that’s not the case.

We’re getting very worried that our organization and the people we serve: people with print disabilities (i.e., people who are blind or severely dyslexic), and human rights groups will be collateral damage in Hollywood’s attempt to break the Internet in their latest effort to squash “piracy.” And, if we’re worried, a lot of other good organizations should start getting worried!

Fruchterman goes on to explore two major areas of concern. The first is that Bookshare, an online library for people who can’t read standard print books, might lose the ability to raise funds or take subscriptions.

As he points out, Bookshare is legal in the US, but that doesn’t stop authors, agents or publishers who don’t know much about people with disabilities or copyright law sending cease and desist letters. At present, Benetech has time to talk people through the law before anything drastic happens. Here’s how SOPA would change all that: [continue reading…]

In Types of Intellectual Property I noted the main types of IP (patent, copyright, etc.) and that other rights, like reputation rights (defamation law) should also be viewed as a type of IP. I was listening this morning to a recent Lew Rockwell podcast, 238. Lew Rockwell Attacked By a Parasite, in which Lew makes the point that insider trading law should not be a crime because it’s absurd for the state to penalize people from acting on information that they have.

I have often criticized patent and copyright on similar grounds. So should we also view insider trading as a type of IP? Here are some ruminations I sent to some friends about this.

Insider trading laws basically prevent you from acting on information you have acquired. Isn’t that the essence of IP? Though here it’s more a type of triangular intervention, in Rothbard’s typology. In patent and copyright, a private person is said to own information–the right to use information, and thus he has the right to use state court force to stop other private actors from acting on that information.

In trademark: the trademark owner can prevent a competitor from patterning his products a certain way–even if the customers are not defrauded (and if they were, they should have the right, not the trademark user). In trade secret, you can get a court injunction–force–against an innocent third party who has learned of secret information, to prevent him from revealing it (acting on it).

In the case of defamation law, reputation rights (libel and slander)–the person who “owns” the reputation–can use state force against others who communicate certain things about the person, to others.

All of them involve information control. Right?

Now in insider trading, the state itself can punish you for using or communicating certain information, or acting on certain information. There is not a private plaintiff who owns the information. So here, it’s the state itself that claims the effective ownership of inside information. (In fact the state engages in insidious insider trading all the time; collusion and cartels with other states; etc.).