A while back I began to collect Absurd Arguments for IP. Well, we have another entry. As Mike Masnick explains in this Techdirt post, Insurers Suggest Podium & Stage Collapse Tragedies Are The Inevitable Result Of File Sharing?, there have been several stage collapses and similar accidents at music concerts and festivals. One insurer is blaming this on file sharing and piracy. The argument apparently goes something like this: piracy reduces CD and song sales. This puts greater pressure on bands to make money from giant concerts, with “giant podiums overloaded with video equipment and spots. The rain and the wind do not destroy more often than before, but when they fall, the damage is much greater.”

Uh, yeah. And lack of copyright law killed Dickens, by making him give too many public performances.

Great post by Mike Masnick on Techdirt:

Innovation Doesn’t Just Come From Big Ideas

from the innovation-fallacy dept

There have been a number of stories lately from people complaining that US entrepreneurs aren’t innovating enough. A few months ago, we wrote about a reporter who came to Silicon Valley and complained about too many trivial startups. At the time, we noted that this is actually part of the process of innovation, and figured that maybe this was just a problem of someone “dropping in” on Silicon Valley without understanding the larger way in which innovation works.

However, I’m much more surprised to see Peter Thiel and Max Levchin, who have been around for a while and involved in a variety of Silicon Valley projects making nearly the same argument as a part of an upcoming book.

They maintain that we’re not solving hard problems anymore, and they lay the blame, indirectly, on the innovations that have gotten us to where we are. As Levchin says, it used to be that if the project you were working on was hard to do, you thought it was valuable. Now, it’s so easy to start a business or launch a company, that people have started thinking that if it’s hard to do, it’s not as smart as doing something much easier.

Both Levchin and Thiel remind us that you can take something that looks easy, make it hard, and change the world. As Thiel said, before Google, people thought search was solved, and uninteresting. Google, “reconceptualized it as a difficult problem,” and from that position won a near-monopoly on the space.

First, it seems a little ironic for Levchin to be making this argument, considering his last company, Slide, could be described in exactly the terms that he now condemns. But, more to the point, I think Levchin and Thiel confuse “difficult” with “innovative,” when that’s often not the case. Innovation comes from a variety of places, often unexpected. There are plenty of stories of people just “scratching an itch” and doing something simple… which later turns out to be massively innovative. But part of the process of innovation is that it’s unexpected, and one of the reasons why Silicon Valley tends to bring out really innovative companies over the long run is because of its ability to rapidly test out lots of different ideas — many of which seem silly upfront. Lots of those ideas “fail fast,” but the ones that can stick, can really stick.

If anything, Levchin and Thiel’s thesis seems like a nearly exact parallel of other elitist viewpoints in other industries, whining about how the internet made things “easier” for lowly amateurs to get into the game. It reads no different than the music snobs and movie snobs whining about how new tools have made it easier for “just anyone” to make music and movies. What they miss is that, yes, this creates lots of crappy music/movies/startups — but the bad ones go away quickly, and because of all that experimentation, some wonderful, and often extremely unexpected, things arise. Innovation is a long and always ongoing process. Judging the level of innovation based solely on the “difficulty” of the problem being attempted is like judging a movie based solely on the budget. It just doesn’t work that way.

As noted a while back on The Invent Blog:

Free the cases! http://bulk.resource.org [wayback version] is a project where they are creating a free database of federal case law decisions. Bob Ambrogi notes it already has 1,800,000 pages of case law.  Cases you can download for free:

• F2d (The Federal Reporter, 2nd Edition)
• F3d (The Federal Reporter, 3rd Edition)
• US (US Reports)

Google also now provides a way to search cases; my PatentLawPractice–IP and Patent Links wiki collects these and other useful online case databases.

Public.Resource.Org has a “Law.Gov” project: “A Proposed Distributed Repository of All Primary Legal Materials of the United States.” Its admirable goal is:

Law.Gov is an idea, an idea that the primary legal materials of the United States should be readily available to all, and that governmental institutions should make these materials available in bulk as distributed, authenticated, well-formatted data. To make this idea a reality, a series of workshops were held throughout the country, resulting in a consensus on 10 core principles.

Browsing around on the bulk.resource.org pages (specifically here), I found two interesting letters: a Request for Clarification [wayback] (Aug. 14, 2007) from Public.Resource.Org Inc., to Thomson/West, asking about the extent of West’s copyright in its caselaw reporters, and what portion was public domain; and Response to Request for Clarification [wayback] (Aug. 28, 2007), Thomson’s reply (Thomson is one of my own new publishers, incidentally, for two of the legal treatises I edit, Digest of Commercial Laws of the World, and Trademark Practice and Forms).

But I’m not sure what. The recent America Invents Act, perhaps? But, Sheesh. More of this guy’s rantings here.

Mr. Barack Obama

President of the United States of America

The White House

1600 Pennsylvania Avenue NW

Washington, DC 20500

 

 

Mr. Obama you are an asshole deeply fucking science on such incompetence to perform your duty and guide your country.

 

Son of a bitch Lawyer from Harvard, politely I told you many insistent times already that I do not want my science Hydrology dishonored and violated so shamefully harming the functioning of society as well as ignoring the RULE OF THE LAW! So now we go down to history when a SCIENTIST has to appeal cursing the US President ordering him compliance and respect to SCIENCE. I never cared about wealth or fame but seeing my ‘scientific breakthrough’ dishonored blatantly by greedy fat cats, lay inventors, and corrupt US officials is just untenable and harmful to human endeavors.

 

Killing the soul by cursing might be even more efficient than killing the flesh by empowering weapons. Brazilian President Ms. Roussef took weapons and served time to fight against dictatorship for the rights to choose. But the rights to choose our leaders degraded becoming mandatory as the candidates fail equally in the same corruption pattern making democracy something inefficient and expensive to protect the functioning of Brazilian society as our leaders seem so derailed on their guidance having no idea on what to pursue. In Brazil we have to pretend we are democratic but what is missing to all governments in general mainly in the US is just HONESTY.

 

Giordano Bruno was burned alive facing up the biased faith to protect knowledge while now I must step up to confront corruption harming Hydrology science functioning. I am not worried if you send people to shoot me and my family like you did to Osama Bin Laden just to increase your poll rates. Shit, if the goal was just to make money I suggested Roche just to bribe people at the Treasure Office by simply printing the bills instead of colluding with USPTO soiling science on intellectual property affairs poorly reinventing what I already did so grounded on classic scientific principles. China dictatorship has something that I personally admire as the power to send fast to death penalty those corrupt greedy criminals that spoil the functioning of society. It seems that China has to grow and personal individuals cannot derail it like the US is doing lately. China is so imposing that if the country figure out that obesity is a problem in few years everybody will get slim again and never ever a Chinese leader would assign an obese person to solve obesity problems simply because leaders must provide honorable and sound models to new generations on precious goals to pursue.

 

As you are aware I am a PhD scientist fucking your ass and not a teen 17 years old like Mr. Luke Angel that was drunk and quickly expelled from the country on September 2010 for calling you a prick. You are fucking your country and the world altogether for such incompetence and disrespect to society functioning. I am a scientist pursing a sort of SCIENTIFIC DISCOVERY deeply rooted on government negligence, corruption, and collusion. I spent 12 years on a project that gave me no single penny because of HONESTY shortage on US government affairs. You are far more than asshole and prick as I carried out more than 3,000 trials to be sure that nature agrees with my new conceptions of Hydrodynamics. So, lay and corrupt people are overstepping my scientific acumen to harm what humans have the most precious – decency and glare. [continue reading…]

From Volokh:

Wall Street Journal Op-Ed on the Computer Fraud and Abuse Act
Orin Kerr • September 14, 2011 8:46 pm

Tomorrow’s Wall Street Journal is running an op-ed I authored on the proposed amendments to the Computer Fraud and Abuse Act. It begins:

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet. So you could be jailed for lying about your age or weight on an Internet dating site. Or you could be sent to federal prison if your boss told you to work but you used the company’s computer to check sports scores online. Imagine that Eric Holder’s Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise. Fanciful, right?

Think again. Congress is now poised to grant the Obama administration’s wishes in the name of “cybersecurity.”

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that “exceeds authorized access” to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed “authorized access.” Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include “terms of use” violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer?

UPDATE: Via e-mail, a reader points out that I misdescribed one case near the end of the op-ed. The Ticketmaster case I mentioned involved alleged unauthorized access beyond the TOS violations. My apologies for the error, which was entirely mine.

So a DuPont employee leaves, and DuPont sues Kolon, a company working with the ex-employee, for “trade secret theft” of information regarding its Kevlar product. DuPont wins almost a billion dollar judgment. (Hey, I can round up, right?)

Kolon is now exploring using anti-trust law against DuPont.

What a great example of the “free market” in action: A uses state IP law against B; B uses state antitrust law against A.

Methinks the only winners are the state, and lawyers. And maybe A and B, who don’t now have to compete with little guys C, D, E who are afraid to get into this hornet’s nest…

From Inside Counsel: “Auto Completion Solutions (ACS), based in Frisco, Texas, has filed suit against some major technology companies. In its suit, ACS claims that Google, Facebook, Yahoo! and LinkedIn violated the patent it holds on auto-completion for Internet searches.”

Apparently, ACS bought these patent rights for the purpose of collecting licensing fees (i.e., it’s a “patent troll”).

One of my favorite podcasts, Triangulation, featured in the latest episode an interview with the great John Perry Barlow–former member of the Grateful Dead (an innovator in viral marketing), IP opponent and activist for Internet freedom. (See his classic 1994 Wired article,”The Economy of Ideas: A framework for patents and copyrights in the Digital Age,” discussed here on the Mises blog; also in Cat-v: “The ‘intellectual property’ oxymoron”.) Barlow there observes that before the Internet and digital age, copyright “worked” (whatever that means) because it was hard to make copies: to print books, make tapes and LPs, etc. But that  the mid 1990s, that all changed when it became easy and essentially costless to make perfect copies of such items. And that this is one reason copyright no longer works. The state is less and less able to easily police and regulate emulation and copying, because its nature has changed, so it responds by escalating its punishments and fines.

Of course, this will not work any more than the draconian sentences imposed for use or sale of narcotics will stop drug use. It occurred to me that envisioning changes in the area of narcotics similar to those that have occurred in the field of informational goods can help illustrate how absurd copyright law is in the digital age. At present, illegal drugs such as cocaine and marijuana are produced from physically grown crops by criminal syndicates, refined into consumer drugs, shipped at great risk to the western markets for these drugs, sold in shady transactions, etc., with individuals at all stages of this chain subject to severe punishment by the state. The state is able to interfere enough with various stages of the drug production and consumption chain to raise prices and drive it underground, and to sustain its own lucrative role in the everlasting “war on drugs.” This is somewhat analogous to the state copyright was in before the Internet, when “copies” meant physical objects like paper books, vinyl LPs, and the like.

Now imagine if some kind of change in the production of drugs occurred analogous to the transformation that has occurred with informational goods. Before, to make a book or audio recording, a physical good had to be produced; copying was laborious or expensive; middlemen and studios were involved. Now, it’s easy to copy books or songs, and the copies can be perfect; and the author or artist can increasingly avoid the studios and publishing houses. Now imagine that the field of 3D printers evolves to the point where narcotics and other drugs such as pharmaceuticals can easily be produced by a consumer, on his own, with a little “pharmaceutical printers” — in essence, millions of consumers could own little private narcotics fabricators. Not only would there be no middle man, there would be no supplier. No sales of drugs, no marijuana fields, no transportation and distribution networks. Sitting next to your laser printer/book binding machine, which you use to fabricate whole bound books on the fly, and your 3D printer, which you use to make little gadgets and items, you have a pharmaceutical printer. Sure, most people use it to make a cheap version of cough medicine and pain medicines, and cheaper versions of highly regulated and patent-protected prescription medications. But some would use it to generate narcotics.

In such a world, surely the bluenoses would be driven almost insane by the thought of their neighbors secretly being able to produce and consume drugs in the privacy of their own homes. But imagine how nearly impossible any enforcement effort in the drug war would be come. The drug war has already led to severe encroachment on civil liberties, but in the new drug-printer age the only way to make even a slight dent in the new private drug production and consumption practice would be to have ultra-invasive searches and seizures, constant monitoring of personal web traffic to detect when drug-printer  “recipes” were searched for or downloaded over the Internet, and so on. Still, the drug war would be even more futile than it is now, and would cause ever more damage to people’s lives, homes, property, freedom, and civil liberties.

And this is exactly the position copyright’s war on information and knowledge finds itself in now. Penalties are ramping up, the law’s scope and term keeps expanding. Copyright propaganda is on the increase, with Big Brother warnings ominously imposed in unskippable warnings at the beginning of DVD and Blu-Ray movies, and public service ads in magazines and comic books and TV’s warning kids that it’s “not cool to steal”. Western nations, as the home of the Big Film and Big Music and Big Publishing interests, are twisting the arms of other nations such as Russia, India, and China to adopt draconian Western-style copyright enforcement. At the same time, with the rise of torrenting and encryption, the attempt to enforce these laws becomes ever more futile. We can only hope its futility is recognized, and this relic of thought control and censorship of ages past is scrapped, before the Internet and our lives and liberty are ruined in the name of “intellectual property rights”.

[mises]

In The Hidden Truth behind the Merger Block, Justin T.P. Quinn provides a nice overview of how Alexander Graham Bell and his use of patents set back the advance of telephone technology and adoption for 25 years.

Fantastic article by Jeff Tucker, The Inventor of the Digital Age, about Michael S. Hart (March 8, 1947 — September 6, 2011), the visionary founder of ebooks and Project Gutenberg.

Austrian economist Dan D’Amico¹ provides an interesting IHS/LearnLiberty talk (apparently at Cato): An Economist’s Look at Intellectual Property Law. Abstract:

Prof. Daniel D’Amico discusses several arguments for and against government enforcement of intellectual property, including trademarks, patents, and copyrights. He explores both moral arguments (deontological) and cost benefit arguments (consequential), dedicating most of his time to consequential arguments. He finds that, in general, intellectual property is difficult to enforce and is inherently an anti-rival good. As a result, he finds no compelling case for government established intellectual property law.

1. I’ve blogged about D’Amico before: Prisons and IP: Tucker Interview with Dan D’Amico; Austrian economics program denied at Loyola New Orleans. [↩]

See Adam Mossoff’s Healthcare Reform’s Impact on Drug Patents. Of all the grounds on which to oppose the creeping socialism of Obamacare, this has got to be the weakest. If anything, this is a silver lining.

Mossoff worries that pressure to reduce costs in the healthcare system may lend support to laws permitting drug reimportation; also to price controls.

As for drug reimportation: I still find it astounding that a libertarian/Objectivist could oppose free trade. But I suppose if you are in support of state-granted monopolies, which are incompatible with competition and free trade, you have to choose. After all, reasonable libertarians are in favor of reasonable amounts of competition, but not, heavens to betsy, unbridled competition!¹ So here Mossoff joins the chorus of other pro-patent libertarians (e.g. Richard Epstein, Doug Bandow, and Michael Kraus) worried about the free trade of drug reimportation undermining government granted patent rights.²

As for the possibility of “price controls,” Mossoff regards this as a “taking” of Big Pharma companies’ “property rights in their drugs”–i.e., their so-called “intellectual property” rights granted by the state in the form of anti-competitive, monopolistic patent privileges (yes, granted by the same criminal, socialized state foisting Obamacare on us). These complaints are reminiscent of confused, hypocritical Tea Party types who pretend to be anti-government when they say “Keep your cotton pickin’ hands off my Social Security!” Indeed!

But as I’ve argued elsewhere,³ if the feds are going to steal from taxpayers in a socialized medical scheme to force them to fund pharmaceutical purchases for “beneficiaries” of the system, the theft is made worse when the prices are made artificially high due to the patent monopoly. I.e., the federal government is spending billions of taxpayer dollars on prices inflated by federal government laws. If the feds insist on stealing out money to purchase drugs for seniors, the least it can do is buy them at the cheapest possible price. One way to do this would be to simply issue compulsory licenses to generic drug manufacturers for any patented drug covered by Medicare. (The feds can license third parties to manufacture patented articles, without patent infringement liability; this was threatened in the Cipro anthrax drug a couple years ago. Yes, the feds have to pay “compensation” to the patent holder, but the level of compensation is bound to be less than the monopoly profits normally reaped by Big Pharma.) Or the state could weaken, or just take away their patent rights altogether. Patentarians would argue that this is a “taking” of a property right, but of course it’s not: it’s removing or weakening an unjust monopoly privilege.

On a similar note: while federal antitrust law is an abomination, it is less unjust when aimed at monopolies actually created by the state. Which is one reason why some of the same pro-IP libertarians noted above are concerned not only with free trade (reimportation) and socialized medicine undermining patent rights, but FTC antitrust actions as well.⁴

[Mises]

1. See Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property. [↩]
2. See: Ideas Are Free: The Case Against Intellectual Property; Pilon on Patents; Drug Reimportation; Cato on Drug Reimportation; and Patents, Prescription Drugs, and Price Controls. [↩]
3. Price Controls, Antitrust, and Patents. [↩]
4. See Pro-IP Libertarians Upset about FTC Poaching Patent Turf; also, When Antitrust and Patents Collide (Rambus v. FTC); Price Controls, Antitrust, and Patents; Intellectual Property and Economic Development.; also IP vs. Antitrust; State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law; The Schizo Feds: Patent Monopolies and the FTC; The Schizophrenic State; Intel v. AMD: More patent and antitrust waste. [↩]

See Authors Guild sues universities over online books (h/t BK Marcus). See also Mike Masnick’s Techdirt post, Why Does The Authors Guild Hate Education So Much? Sues Five Universities For Providing Access To Orphan Works.

The stupidity and maliciousness of the Authors Guild here is staggering. Some university libraries are participating in an Orphan Works Project, an attempt to scan, save and make available older books for whom the author can no longer available–unless the copyright holder shows up, in which case the work is removed. And the Authors Guild is suing them for this? As Masnick writes:

In other words, the only way a book gets displayed through this system is if no copyright holder is found after a fairly extensive process. And if the copyright holder ever shows up, the work is immediately removed. All of this makes me wonder if the Authors Guild can really prove it has standing in this case. If the actual copyright holders cannot be identified, how can the Authors Guild claim standing over these works?

Either way, this is yet another in this long line of disputes in which the Authors Guild is coming out on the wrong side. It’s not helping authors, it’s doing the exact opposite, by acting like a massive luddite, attacking any form of innovation or any system that encourages the reading of books and the sharing of knowledge. Shame on the Authors Guild, who seems to only be living up to the reputation of guilds from the Middle Ages, which were focused on economically-suicidal protectionism, rather than innovation.