Great post by Mike Masnick on Techdirt. Send this to CEOs of startups to urge them to sign the letter—
Lots of people have been speaking up about why PROTECT IP is a terrible, terrible idea that will have massive unintended consequences for innovation online. We’ve seen the biggest names in venture capital tell Congress that PROTECT IP would chill investment in new innovations. We’ve seen top technologists explain how PROTECT IP messes with fundamental infrastructure and security elements of the internet. And we’ve had a bunch of well respected law professors explain to Congress that the bill is almost certainly unconstitutional.
One voice has been missing, however: the actual tech entrepreneurs and startup execs who will be impacted most directly, because PROTECT IP will put both the costs of compliance and the burdens of liability directly on their shoulders. Entrepreneurs are famous for staying out of policy debates like this. This isn’t a surprise. Entrepreneurs are focused on building the next great innovation and the next great company — creating lots of new jobs both directly in their companies and via the new innovations and platforms they create.
PROTECT IP is such a dreadful, job killing bill that it’s finally sparked entrepreneurs to speak out. A large group of entrepreneurs, both well known and less well known, have teamed up to send a letter to Congress warning about the impact of PROTECT IP, and asking them to reject this bill which is nothing more than an attempt to give a handout to the entertainment industry. Over 135 entrepreneurs have already signed on (yes, including me). Collectively, these entrepreneurs have directly created over 50,000 new jobs in their companies, but more importantly have created hundreds of thousands, if not millions, of jobs via their innovations, platforms and services.
It’s great to see such a diverse group of startup entrepreneurs — many of them serial entrepreneurs — team up on such an issue. The list of participants includes folks like Evan Williams, the founder of Twitter and Blogger, Ian Rogers, the CEO of TopSpin, Mark Pincus, founder and CEO of Zynga, Dennis Crowley, founder & CEO of FourSquare, Joel Spolsky from StackExchange & Fog Creek Software and Reid Hoffman of LinkedIn. It includes people like Chris Shipley of Guidewire Group, who for years ran the DEMO conferences and Tim O’Reilly (who I’ll just assume you know because you’ve read the books he’s published). It includes entrepreneurs from great platforms like Kickstarter, IndieGoGo and GiltGroupe. And there may be some names on the list that you might not recognize today, but who are building the next generation of great startups to produce services that you will use in the future. It’s really a who’s who of entrepreneurs who helped build the key internet services you use today and will use in the future — and they’re all quite reasonably scared of what PROTECT IP means and how it will chill innovation in the startup community.
All of us who put together this letter want to make sure that the voice of entrepreneurs is heard loud and clear — and as such, we’re still accepting additional signatures from entrepreneurs. If you’ve been a founder or held a job-creating role at a startup, please sign the letter as well, following the instructions at the top of the document, and we can continue to make sure that the voice of the folks who really create new jobs and support the economy are actually heard from in DC.
Members of Congress and the President claim that they’re focused on passing legislation that creates jobs. So why are so many pushing for PROTECT IP, when the companies who actually innovate and create the new jobs for the future are so against it?
As a practicing patent lawyer, I am on lots of patent lists and the like, and get regularly inundated with pro-patent propaganda. Case in point: a day or two ago I received an email blast from patent shill “Dr. Jose Melendez,” “the founder and CEO of Patent Calls, Inc., a company focused on providing technology based patent understandings that can be trusted”. The email is reproduced in his blog post, The $600M Innovation Tax, which whines that upcoming patent reform legislation1 will “divert” Patent and Trademark Office (PTO) fees to the fedgov, instead of letting the PTO “keep” the fees to “improve” patent “quality” (double-sic). Congress-critter Tom Coburn makes similar whines on NRO, calling the patent fee “diversion” a “tax on innovation.”
I then received an email sent by a fellow member of one of the patent lawyer email lists I’m on, urging all of us patent practitioners to fight the patent fee diversion. The email commended and quoted Patent Fee Diversion Is a Tax on Innovation by Senator Tom Coburn, and approvingly included the following excerpts from Coburn’s propaganda:
“Fee diversion is the practice of congressional appropriators’ diverting fees that innovators and entrepreneurs pay when applying for patents and trademarks to other government programs. Fee diversion saps the lifeblood of the American economy — innovation and invention — in order to subsidize the desire of career politicians and appropriators in Congress to avoid hard choices. Fee diversion operates like a tax on innovation, because it requires entrepreneurs to spend more money.The Senate has already voted to end fee diversion, by a margin of 95 to 5. …………I intend to give Senate appropriators the chance to back up that claim by voting on my amendment to end fee diversion. If my amendment fails, I will do everything in my power to slow the bill and highlight this egregious tax on innovation.If politicians in Washington want to be taken seriously in the jobs debate, ending a practice that steals from job creators would be a good first step. ……. Congress should fix the patent bill immediately and restore my language ending fee diversion. If Congress does not make this fix, President Obama should veto it. Otherwise, he will be complicit in a scheme that is rigged to rob the very people we say we want to help — America’s job creators.”
The email said in part that “Essentially everybody agrees that fee diversion, the raiding of fees paid into the patent office is a bad thing and should be ended. The Senate voted 95-5 in March to end fee diversion. But the bill that eventually passed the House ( H.R. 1249) continues to allow fee diversion. The Senate should continue to stand by its original vote to end fee diversion by supporting the Coburn amendment.”
I replied to all the lawyers on the list as follows:
It is not true that everybody agrees fee diversion is a bad thing. The money collected by the PTO is somewhat arbitrary given the monopoly power (to grant monopoly patent grants) given to it by the state, and given that the PTO is basically “owned” by fedgov. Just as a parent company may do what it likes with a subsidiary, so here. It is not clear at all that all of the “profits” of the subsidiary-PTO are necessary to fund its operations. Suppose Congress ordered it to quadruple patent filing fees tomorrow. This may well result in a huge windfall. It is not immediately obvious that all the surplus profit would need to be diverted to the PTO for spending on operations. The idea that all of the fees the PTO generates (using the state monopoly granted to it) need to be kept by it to fund operations presupposes that it will never make a profit.
The opposition to fee diversion also rests on other controversial assumptions–namely, that it is good that the PTO be well-staffed and funded; and that the PTO itself is a good thing. For someone who believes patents are harmful and a plague that should be ended (and believe me there are many companies besieged by patent assaults who think this), they might prefer the PTO to be starved of funds to hasten its demise and/or the reduction in the perception of patent quality/legitimacy.
In short I think it is inappropriate for patent attorneys to automatically urge a political stance to their fellows based solely on their status as recipients of the patent system. It is an outright political stance and ought not to be characterized as anything else; the “should” in the comments below belies this. It is not something “everyone agrees to”; and I fail to see why a list of patent practitioners is to be used to push any political stance here any more than it ought be used to favor Republicans over Democrats or vice-versa. Or, if the list is to be used for political views, I’d like to urge everyone here to consider urging their lawmakers to severely curtail the anti-property, anti-market, anti-competition patent monopoly privileges that the unjust patent system generates.
Yes, my fellow patent parasites probably hate me. I am a bit curious what it takes to be kicked off one of these lists.
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.
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]
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.
Stealing The Spirit Of The Cornfield
I walked outside this afternoon to find a lovely blue sky filled with puffy cumulus clouds. Nice cool breeze, temperature in the 70s, and my car just happened to be loaded up with all my large format camera gear. So I decided to pull off on a country road and take some shots of the pretty landscape. Nothing’s better than a nice leisurely setup on a deserted road. So I got this photograph of a field and sky, and then I moved my tripod to the other side of the road to take another simple landscape scene.
Whilst under the darkcloth I hear a motor and something pull up next to me. A man in a golf cart is there. Here’s the conversation that followed to the best of my recollection: It is not necessarily word for word, but very close.
“Howdy!” I say
“Is everything OK?” he says
“Yeah, I’m just taking some pictures.”
“Of what?”
“Oh, just some landscapes.”
“Landscapes?”
“Yeah, like you know the sky, the field and whatnot. I’m a photographer.”
“So what are you gonna do with it?”
“I dunno, it’s just for fun, it’s my hobby. I’ll probably put them on my website or something”
“So you could sell them?”
“Maybe, but it’s unlikely that I’d sell any.”
“Well, you can’t do that, that’s illegal! You can’t just go and take pictures of people’s land!”
“It’s not at all illegal, I’m on public property.”
“Well my daughter is a police officer, I’ll just have to see about that!”
“I’m not doing anything illegal, I’m on a public street photographing a field. Is that your property? (points towards corn field)”
“Yes”
“And do you have a problem with me taking a picture of it?”
“Yes I do.”
“Okay fine, then I’ll leave.”
He turned his golf cart around and left. I wanted to take two more shots, but I just packed up my gear and left. It really made me mad that some people have gotta be jerks for no good reason. The vibe I got from this guy was that somehow my picture of his cornfield was going to make me rich and somehow he was going to be “screwed”. What I can’t convey in the story is the strong hostile vibe and body language\tone of voice I was getting from this man. I could sense he HATED the idea of me being there.
The photo itself holds none of the back story, it is simply a beautiful scene. But perhaps its beauty lies in the fact that there are no people in it, frightened, litigious people who cannot bear the thought of their fellow man being free to do as they wish. No people who are ready and willing to reach for the guns of the State the moment someone upsets their daily routine. No people who are unwilling to extend property rights to their fellow man. No scared and propagandized people whose only means of expression is to lash out at others.
If this man was a farmer then he knows the value of hard work. He knows the concept of homesteading. He knows the idea of making use of resources to create property where once there was almost nothing. He owns his cornfield because he makes use of it. But these concepts are universal, and they apply equally to the photographer as well. I used resources to capture light reflecting off objects in the world. An image was created on film and later manipulated in numerous ways. My own work has created this property. Everyone else is free to do the same and their photograph will become their property. My property does not negate his property in the least. My photograph does not make his corn wilt, it does not pollute his water supply, it does not kill any of his cows. The non-aggression principle has not been violated. But had I continued, I wonder if others would have?
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.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
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