From TUAW:

Apple not happy with food company’s logo

Apple is accusing a Chinese food company of trademark infringement over its fruit-themed logo. The Sichuan Fangguo Food Co., Ltd. uses a round red logo with a stem and leaf. Apple claims this logo borrows conceptual elements, specifically the leaf, from its logo.

Apple wants Fanggou to remove the leaf from its logo, also a representation of a type of apple, but it has refused, noting that “it’s a fruit, if the leaf is removed, it’ll just look like a bomb.”

Update: Kellogg’s Stakes Claim To Toucans, Mayan Imagery; Issues Cease-and-Desist To Guatemalan Non-Profit

In a recent Techdirt post, France: Copyright Is More Important Than Human Rights, Mike Masnick points out that France’s Nicolas Sarkozy, “a strong supporter of more draconian copyright laws, … has also been talking about the need to clamp down on free expression online.” And that he even declared

that copyright is more important than human rights online:

The Foreign Ministry said that France does not wish to sign a UN declaration favorable to the defense of human rights on the Internet until there is no consensus on the fact that freedom expression and communication does not take precedence over other rights, including intellectual property.

That’s from a Google translation of the French which is a little awkward. Using a different translator, it translates the “until there is no consensus” to be “as long as there will be no consensus.” French speakers, feel free to confirm. But it appears the French government is saying that it refuses to sign a declaration concerning human rights online unless those who sign on agree to admit that freedom of expression and communication is less important than copyright. That’s insane.

Of course this should not be a surprise, since copyright originated in censorship and still results in censorship (see examples here, here, and here).

A recent example of copyright censorship was discussed on a This Week in Law #127: Smells Like Albert Einstein: the DMCA takedown of iJustine’s YouTube video tribute to Steve Jobs, sung to the tune of a Lada Gaga song. (Here’s one of the videos pulled from YouTube; one is still up, for now, and embedded below.)

As the TWiL hosts note, this kind of use of a copyrighted work may not be covered by the “parody” fair use exception, since it’s not a parody of the Lady Gaga song; it’s using a version of the song for another purpose–even if it was to parody Steve Jobs, it’s not a parody of the work itself.

One of the hosts, Evan Brown, opined that though such a takedown might seem like an infringement of free speech, a violation of the First Amendment, it’s not, because it’s private action not state action (I’m paraphrasing Brown). I’m not sure if this analysis is right, since copyright is a private right granted by the state and enforced in state courts. Imagine if the central state were to give a right to people to sue people for practicing Mormonism–such a law, such a grant, would surely infringe the freedom of religion in the First Amendment. (Incidentally, when the Supreme Court overturned laws banning flag-burning in 1990, Louisiana purportedly enacted a statute penalizing people engaged in battery of a flag burner with a $25 fine. Not sure if this is apocrypha or not; I haven’t seen found the statute.)

I think the stronger argument that copyright-caused censorship does not violate the First Amendment is that the Constitution itself authorizes copyright law. So copyright and its censorious effects must be compatible with the First Amendment. I suppose someone could argue that the First Amendment came laterthan the copyright clause (1791, two years after the Constitution was ratified), and therefore, to the extent there is incompatiblity between the two–namely, copyright gives rise to censorship that abridges freedom of speech–the later provision prevails, i.e. the (1789) copyright clause would be held to be at least partially unconstitutional as incompabitle with the 1791 First Amendment. In other words, the argument would be that the First Amendment partially repealed the copyright clause, just as the Twenty-first Amendment (1933) repealed the alcohol prohibition of the Eighteenth Amendment (1919). I think such an argument has some merit, even if those who drafted and ratified the Bill of Rights might not have been aware of this conflict. If I were on the Court, I’d side with the First Amendment over the Copyright Clause.

Another point worth considering: in light of extremely excessive penalties and damages awarded for copyright (and patent) infringement (millions of dollars for downloading a few songs, far beyond actual damages, e.g., in the Jammie Thomas case; see the $4.5 billion per year estimate by John Tehranian, in We are all copyright criminals: John Tehranian’s “Infringement Nation”), could it be argued that such penalties are “excessive fines” in violation of the Eighth Amendment? As far as I know this has not been argued against, but I see no immediately obvious reason why such argument might not work (especially given that the Eighth Amendment was ratified in 1791, two years after the Copyright and Patent Clause).

Update: See also Eighth Amendment and copyright trolls; Tom W. Bell, “Copyright Porn Trolls, Wasting Taxi Medallions, and the Propriety of “Property,” Chapman L. Rev. 18, no 3, Art. 8 (2015); Mike Masnick’s Techdirt post Do The Statutory Damages Rates For Copyright Infringement Violate The Eighth Amendment?.

From TUAW: Court prevents Galaxy Tab 7.7 from being shown at IFA. More of Apple’s attempt to use state-granted monopoly privileges (patents) to kill its competitor Android. How people cannot see this as protetectionism is beyond me.

Police assisted Apple in search of man’s home (2) for a missing iPhone 5 prototype. Hmmm, sound familiar? —

The creation of monopolies reached its climax in the reign of Queen Elizabeth (1558–1603), in the latter half of the 16th century. In the words of historian Professor S.T. Bindoff, “… the restrictive principle had, like some giant squid, fastened its embracing tentacles round many branches of domestic trade and manufacture,” and “in the last decade of Elizabeth’s reign scarcely an article in common use – coal, soap, starch, iron, leather, books, wine, fruit – was unaffected by patents of monopoly.”

In sparkling prose, Bindoff writes how lobbyists, using the lure of monetary gain, obtained royal courtiers to sponsor their petitions for grants of monopoly: “their sponsorship was usually a mere episode in the great game of place-and-fortune-hunting which swayed and swirled incessantly around the steps of the throne.” Once granted their privileges, the monopolists got themselves armed by the state with powers of search-and-seizure to root out all instances of now-illegal competition.

See Rothbard on Mercantilism and State “Patents of Monopoly”.

From Patent Wars: A New Age of Competition [INFOGRAPHIC], a chart depicting various patent lawsuits in the smartphone arena. Others charts and graphics at Intellectual Property Charts, Graphs, Graphics, Diagrams.

[via BusinessInsurance.org]

I’ll collect here some useful patent and copyright graphics that I come across. Feel free to send others to me.

See this amazing FT Graphic Illustrating the Smartphone Patent Wars.

Also, from Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy:

From Motorola: Enemy or Friend of Google?: [continue reading…]

As noted on this Techcrunch post, Google Chairman Eric Schmidt Weighs In On Patent Issues: They’re “Terrible” (h/t Geoff Plauche). But he is not really against patents. He is against “overbroad” patents and “bogus” patents. He thinks a solution would be to “improve” the quality of patents, by crowdsourcing, increasing PTO budget, hoping Congress “reforms” patent law, etc. The problem is not patents per se–after all, he says, “Patents are important.”

Schmidt accepts the common wisdom that patents are important, yet he sees the damage they wreak; so he is caught in a quandary. He cannot advocate patent abolition, he cannot point the finger at patents in general, if patents are “important.” All he is left with is complaints about “abuse” or “quality.” But he is wrong. The problem is not bogus patents, low quality patents, software patents, overbroad patents, bad Examiners, or patent trolls. Get rid of all these “problems” and the central problem still remains: companies can use state-granted monopoly privileges to stop competitors from competing with them.

As I explained in Types of Intellectual Property, “Intellectual property” is an umbrella term that includes many types of legal rights. They are called “property” or IP for propagandistic reasons,¹ and include patent, copyright, trademark, and trade secret, plus newer rights. And there is always a push for legislation creating more types of IP, such as fashion designs. Legislation is the main source of new IP rights, of course, but the modern statist courts can contribute to. Case in point, as Mike Masnick notes here, a federal court just made up, out of whole cloth, a new IP right, which he dubs “the right to make up restrictions if it makes money.”

As Masnick write:

Two years ago we wrote about a troubling case coming out of Wisconsin, in which the Wisconsin Interscholastic Athletic Association (WIAA) claimed that it could allow a single exclusive broadcaster for high school sporting events in the state. The Gannett newspapers challenged this by streaming four different events online, eventually leading to this lawsuit. There were other highly questionable limitations on news media, including a claim that they could not even report play-by-play data. That part is the most ridiculous, as that seems like a clear violation on free speech rights, and also goes against previous caselaw that has allowed the reporting of factual game information. But, stunningly, last year, a district court judge ruled that commerce trumps the First Amendment, and since the WIAA needs to make money, such deals are just fine. This didn’t make much sense to us, and we hoped that it would be overturned on appeal.

No such luck.

Ima Fish alerts us to the appeals court ruling which upheld the lower court and seems to endorse the creation of a wholly made up new form of intellectual property right that has no basis in the law. The court clearly says that this is not a copyright case, so copyright law doesn’t apply. So what right exactly is WIAA granting to its broadcasting partner? That’s not clear at all from the ruling. If it’s not copyright, it appears to be something entirely made up by the appeals court, which might be loosely defined as “the right to make up restrictions if it makes money.” I’m not joking. The court repeatedly focuses in on the idea that the WIAA needs to make money, and that somehow makes it okay to grant a single company an exclusive license.

I don’t see how this makes much sense. I could see that they should be allowed to grant a license to an “official” broadcaster, and even give them additional access, but I don’t see how they can stop someone else from recording the material and broadcasting it as well — especially when they admit that it’s not a copyright issue.

And since this new exclusive made up imaginary right has no basis in law, we don’t know what any exceptions are. Is there a fair use exception like in copyright? The contract says other agencies can show two minutes of streaming video from events, but it doesn’t need to say that, and fair use shouldn’t be determined by a contract anyway. The whole thing seems bizarre and troubling, in that it seems to suggest that public entities can create a special kind of exclusive broadcast intellectual property right if they use it to make money.

Read more>>

1. See Intellectual Properganda. [↩]

Lately I’ve been learning more about the Open Science Summit, since I’ll be a panelist at the upcoming 2011 installment (Oct. 22, 2011, at the Computer History Museum in Mountain View CA). This is a fascinating and promising movement/group that is devoting a great deal of attention to how IP affects science (for more on the OSS, see The Open Science Shift, Xconomy; Open science: a future shaped by shared experience, The Guardian; footage from last year’s summit is available on the OSS Youtube channel).

In fact a good deal of the Opening Session of the 2010 Open Science Summit was devoted to IP horror stories and ways in which it interferes with science and the spread of knowledge (go to about 8:20 for the beginning of this discussion).

For a related talk, “Science is a Private Good – Or: Why Government Science is Wasteful” (video; audio; and below) delivered at the Fifth Annual Meeting of the Property and Freedom Society in Bodrum, Turkey,¹, by Terence Kealey, a biochemist at the University of Buckingham and author of Sex, Science and Profits and The Economic Laws of Scientific Research.

[mises]

1. See my Bodrum Days and Nights: The Fifth Annual Meeting of the Property and Freedom Society: A Partial Report. [↩]

What a heroic milestone! …. not. As predicted in a recent post (Millions and Millions of Patents: Oh, the Humanity!), the United States Patent and Trademark Office Issues 8 Millionth Patent.

Horrible.

An interesting Flickr photo and post (h/t Manuel Lora). The Photographer seems to get it. I think–see my comment.

I like this, but I wonder if the photographer here thinks he has a property right (“copyright”) in the photograph. If so, he is as mistaken as the landowner is about the nature of property rights. Just as the photographer did not commit aggression against the landowner by taking pix of his property, so someone copying the image would not be committing aggression against the photographer–he still has his photograph. The fact that others might copy it, or even–gasp–profit off of it, does not aggress against him.

From this WikiLeaks cable: a current example of arm-twisting by the US to push our IP standards on developing countries, for the benefit of powerful American corporate IP interests (see also Intellectual Property Imperialism; Wikileaks cables reveal that the US wrote Spain’s proposed copyright laws, Intellectual Property Appears to Figure Prominently In Wikileaks Cablegate, The Economist on Patents and Innovation in China, and China and Intellectual Property).

VZCZCXRO9784
RR RUEHAG RUEHAST RUEHDA RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN
RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSR RUEHVK RUEHYG
DE RUEHVJ #1879 3531507
ZNR UUUUU ZZH
R 181507Z DEC 08
FM AMEMBASSY SARAJEVO
TO RUEHC/SECSTATE WASHDC 9419
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHMO/AMEMBASSY MOSCOW 0085
RUEATRS/DEPT OF TREASURY WASHDC
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEAWJA/DEPT OF JUSTICE WASHDC

UNCLAS SARAJEVO 001879 

SIPDIS 

COMMERCE FOR 4232/ITA/MAC/EUR (BURGESS AND SAVICH) 
DEPARTMENT PLEASE PASS TO USTR (MORROW, YANG) 
DEPARTMENT FOR EUR/SCE, EEB/IPE, EUR/PPD (HANNAN), 
EUR/PPD-PA,IIP/S 
TREASURY FOR LINDQUIST 
COMMERCE PLEASE PASS TO MCCAFFREY AND SMITH AT USPTO 
JUSTICE FOR CARL ALEXANDRE 
MOSCOW FOR REGIONAL IPR ATTACHE 

E.O. 12958: N/A 
TAGS: ECIN KIPR BK
SUBJECT: BOSNIA: MICROSOFT AND PM SPIRIC SIGN STRATEGIC 
PARTNERSHIP AGREEMENT 

REF: SARAJEVO 1351 

¶1. On December 18, the BiH Council of Ministers and Microsoft finally signed a Strategic Partnership Agreement for access to legal Microsoft applications for all state-level government ministries.  Prime Minister Nikola Spiric signed 
the agreement on behalf of the BiH Government.  The agreement 
obligates the BiH Government to use licensed software, but is 
only the first step in strengthening the state government's 
intellectual property regime.  Microsoft will now begin 
negotiations with BiH to purchase licenses for the software 
applications under the state's purview.  This marks a huge success for the U.S. Embassy, which has been working with state-level officials for three years to push for action to ban pirated and unlicensed software from ministry offices. 
(Note: Federation and RS-entity governments signed separate 
strategic partnership agreements with Microsoft in 2006.  End 
note.) 
ENGLISH

Interesting observation from Jeff Tucker on the Mises Blog about the reason for the inflated cost of academic books:

Loving the Price

July 29, 2011 by Jeffrey Tucker

Pierre July 29, 2011 at 12:45 pm [edit]

Is there a free online version of Austrian Law And Economics? jk…

Jeffrey Tucker July 29, 2011 at 12:57 pm [edit]

No. It is just reprints from academic journals.

You do know what makes this crazy system work, right? 1) copyright monopolies, 2) tax money that is buying these books for state university libraries.