Technical people have always doubted that DRM would work, and always suspected that the recording industry was sold a bill of goods by various techno-charlatans who told computer illiterate CEOs what they wanted to hear. We now have confirmation - the CEO of Universal Music is quoted as saying

I wouldn't be able to recognize a good technology person anyone with a good bullshit story would have gotten past me.

To which we can add the obvious "would and did." You can find more with discussion on Freedom to Tinker.

via John Bennett

Why small businesses might prefer open source/free software.

The free software movement is one of the bright lights in the darkness of modern copyrights and patents. For an outsider (I actually write and distribute software under the GPL, so I'm not strictly speaking an outsider), the movement often seems caught up in making distinctions that seem almost trivial - "open source" versus "free software" or "intellectual property" versus "copyright and patent." Richard Stallman, one of the leaders of the movement, especially prefers that we be precise in our terminology. Anyway I'm not posting to complain - I'm posting to remind us all that they are right and seemingly subtle distinctions matter.

I was reminded of this in a long email from Chris Anderson (as usual I am horribly slow to actually get around to posting - the email is from September 20) pointing out some imprecision in our book. In particular he raises the issue of whether the Solaris operating system is actually open source. But I thought especially interesting his discussion of star office:

like the open solaris project, the open office project is an open source version of a proprietary product from sun micro systems. sun opened up the source code that star office is built on, but the star office product contains fonts, clip art, and other stuff that is owned and licensed by sun. so, sun still sells star office and solaris, and sun donated most of the source for those products to the community, and subsequent proprietary versions of both products are based on those open source codebases, but star office is not open source in the way that gnome office or Koffice are in that you can just download the working version fully branded. you can download open office free in an easily installed format for a number of operating systems for free and are free to distribute it as you like.

The point is an important one: you can download open office for free and make changes to it and redistribute it. You can download star office for free, but you cannot make changes to it or redistribute it. This is not a trivial difference.

This is a few days old, but I don't think anyone posted about it: the catfight between NBC and Apple over online music distribution. Mauro Mello Jr. calls our attention to a nice article. Will the music industry ever stop cutting its own throat?

I had corresponded with Tom Bell a while back, and he sent me some interesting stuff I've been planning to post almost forever. Justin finally beat me to the punch, so let's see if I can't get caught up. Tom summed up what he does pretty well:

By way of background, I am a law professor who has long had an interest in IP policy. You can find my print publications at tomwbell.com and my blog posts at agoraphilia (a sort of catch-all blog, hosted by my friend, economist Glen Whitman), techliberation.com (dedicated to technology and telecommunications policy), midasoracle.org (focusing on prediction markets), and money law (where I and other legal academics apply quantitative tools to our profession).

I'm on sabbatical, this semester, and aim on finishing a book called, "Intellectual Privilege: Copyright, Common Law, and the Common Good." From the title alone, you can guess something of the line of argument I plan to take. Judging from your academic papers, and your blogging at "Against Monopoly," I imagine that you'll find my approach to copyright agreeable.

We had some interesting discussion of my observation that lawyers often are quite skeptical of IP. I found Tom's response quite interesting:

I don't doubt you're right that lawyers--or at least legal academics--prove more skeptical of IP than economists. And you may well be right that it's because people who work in the law know its limits so well. But I'd peg as a contributing cause something less commendable: a distrust of market processes. Among legal academics, at least, I find any invocation of property rights likely to raise skeptical replies. I guess I'm an odd bird in that regard, as I very much like property rights--*in tangibles.* Indeed, my criticisms of IP turn in part on my concern that they do not qualify as property rights, really, and that they might even weaken support for the real and chattle property rights that I so profoundly respect.

This story

By changing the word 'a' to 'the' and adding the phrase 'purchasable through a shopping cart model,' lawyers for Amazon.com have apparently managed to reinstate two of CEO Jeff Bezos' 1-Click Patent claims that were rejected a month earlier. 'Patent Owner's Rep was informed that the proposed addition to the claims appear to place the claims in condition of patentability,' writes the USPTO in its Ex Parte Reexamination Interview Summary of the 11-15 conference call that was held with five representatives of the USPTO and patent reformer Amazon.

from Slashdot wasn't the most promising start of Thanksgiving. But appearances can be deceiving. Peter Calveley, the New Zealander who filed the patent challenge (with our support I might add), writes in to call attention to a post on his blog explaining why this is defeat for Amazon - or what is more salient, victory for the rest of us. The key point is the blocking technology point. Amazon's original claims were so broad they blocked the use of one-click for practically anything to do with making a purchase. The revised claims are specifically in the context of the shopping cart model - Peter points out that in the future innovation in payments systems will not be in the context of a shopping cart model.

Via Christian Zimmermann: a patent on the combover

SO WHAT IF MUSIC JUST BECOMES FREE AND ARTISTS MAKE THEIR LIVING OFF OF TOURING AND MERCHANDISE?

Well therein lies the most stupid mistake anybody can make. The most important part is the music. Without that, why would you care? Even the idea that you're considering giving the music away for free makes it easier to give it away for free. The only reason why gold is expensive is because we all agree that it is. There's no real use for it, except we all agree and abide by the idea that gold costs a certain amount per ounce. As soon as you give people the choice to deviate from it, you have chaos and anarchy. And that's what going on.

Technological Innovation and Intellectual Property highlights:

Choose: patent quality or continuations?

Cecil Quillen argues that the patent bar can't have it both ways: unless the Patent Office restricts continuing applications, patent quality will inevitably suffer.

Have the courts already fixed the US Patent system?

Brad Smith, General Counsel of Microsoft, recently suggested that history might be repeating: during the late 19th century, growing concern about patent "sharks" lead to calls for patent reform. But the courts, not the legislature, made changes to patent law. Brad stated that the Supreme Court today has already made most of the changes that Microsoft was seeking in legislation. Jim Bessen argues that if history is really repeating, then we should see a decline in litigation. That is not happening, at least not so far (see below).

Eric Maskin wins Nobel Prize

One of the winners of this year's Nobel Prize in economics has done some important work on patents and innovation.

Patents more often in lawsuits

Not only is the absolute number of lawsuits increasing, but the probability that a patent will be in a lawsuit continues to rise.