(via Michael Geist) The architect of the DMCA Bruce Lehman admits "our attempts at copyright control have not been successful." He also "he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s." You give the big guys more monopoly power and they innovate less. Who'd have thunk it?

(via Slashdot) The EFF managed to get a patent revoked see link here

According to the Wall Street Journal "compact-disc sales for the first three months of this year plunged 20% from a year earlier." Now I'm not sure why anyone would care: presumably sales of LP's, 8-track and cassette tapes has been zero for some time, and nobody seems especially out of sorts over it. Will the WSJ have an article about the sad decline of the buggy whip market next?

Buried deep within the article is the real news "Overall, sales of all music -- digital and physical -- are down 10% this year. And even including sales of ringtones, subscription services and other 'ancillary' goods, sales are still down 9%, according to one estimate; some recording executives have privately questioned that figure, which was included in a recent report by Pali Research." While perhaps not so dramatic as 20%, 9% - which seems to be the real number - is still a substantial fall.

If you want to understand why the fall in sales, I don't think you have to look much further than this To summarize:

I must admit to being completely flummoxed. There I sat, a loyal music fan who has shelled out actual money to a business that is supposed to be having financial problems, and the best they can do is tell me to wander the streets of Seattle looking for different internet providers who might allow me to download the music that I have already paid for, music that I have spent the better part of three house trying to listen to, and which is still unusable?

Apparently the music industry takes the maxim "no one ever got poor underestimating the intelligence of the marketplace" a little too seriously. Nobody ever got rich by offending their best customers either.

Via Gerry Everding a a wonderful post by Larry Downes. The short version: the dissonance between law and practice is too large - it is the law that will change.

An op-ed at the Baltimore Sun best read from the bottom up. At the bottom the bio of the author

Peter J. Pitts, a former associate commissioner at the Food and Drug Administration, is director of the Center for Medicine in the Public Interest, which accepts donations from health care corporations.

Then the top

Imagine that you are an inventor and the government steals your highly lucrative idea. The next day, you are informed that the government plans to mass-produce your invention and give it away for free. If you're lucky, they'll give you a pittance for your efforts.

This is what happens, with increasing regularity, to the manufacturers of lifesaving medicines. The most recent example occurred in Thailand when the military-appointed government issued "compulsory licenses" to obtain two drugs.

The first, the HIV/AIDS drug Kaletra...

Since the author seems to have worked for the FDA and directs the "Center for Medicine in the Public Interest" I have to assume the article is deceptive rather than misinformed. Rather than fisk the entire article, let me just ask: Do you really suppose that the big pharmaceutical companies wouldn't have produced the blockbuster AIDs drugs if they had know that Thailand was going to put it under a compulsory license...

John has a post about a new "wiki" oriented system that the patent system is planning on a trial basis to get public input into patent applications. John has done quite a bit of work tracking down what is going on - there will probably be more later when the system goes into operation, encouraging us to participate.

Let me play devil's advocate here, and explain why I'm not at all convinced this is a good idea. Getting rid of obvious patents, and patents for which there is prior use would be a good thing to do. No doubt the patent office is pretty poor at its job (see this post for one of many egregious examples). No doubt there is a lot of expertise outside the patent office that if it could be tapped into would help eliminate some of the obvious and redundant ones.

But: the U.S. Patent Office shows 417,508 applications in 2005.

*Is it realistic for that many patents to get public scrutiny?

*Do we want Linus Torvalds spending all of his time scrutinizing patent applications to see what is obvious and redundant - or writing great software?

The actual system is (at least initially) intended to be a voluntary system in which applicants can opt for public scrutiny. That would serve to keep the applications to be scrutinized within bounds. Realistically, if this is to make sense then patents that undergo this scrutiny have to have some higher legal standing than those that do not. It is obvious why the large software companies who are pushing the idea would favor this - however beneficent their motives, can we doubt that they are different than the rest of us? We all want patents for ourselves, but not the other guy. So initially, the system just seems a way of getting superior status for the large companies that choose to participate. Of course if it works, then everyone will want in - and now we are back to 417,508 applications. Worse - if we get all the patents going through the system, most of them won't get any scrutiny at all - but of course when it goes to court the claim will be that the patents were available for scrutiny and nobody said anything at the time, so, however ridiculous the claims, they must be recognized.

What do you think? Good system or bad?

Via Gerry Everding: What were they thinking?

In creating a double standard for copyright and trademark law, the courts appear to have been influenced by the "romantic nature" of copyright law, Bartholomew says. "It's romantic to think about someone writing the great American novel or producing a hit song," he explains, "and the people who appeal for protection of these rights authors, movie stars, musicians are themselves very appealing."

When these romantic notions are combined with fears of widespread digital theft, you get "copyright panic," Bartholomew contends.

Complete article here

An article on information week is going the blog rounds. Title of the article: "If You're Going To Steal Software, Steal From Us: Microsoft Exec." Most likely they'd rather have you steal their software than use legal open source/free software as well.

Larry Lessign draw our attention to footnote 33 of Sony v. Universal.

Furthermore, "[t]he error in excusing such theft [copying for personal use] as noncommercial," we are told, "can be seen by simple analogy: jewel theft is not converted into a noncommercial veniality if stolen jewels are simply worn rather than sold." ... The premise and the analogy are indeed simple, but they add nothing to the argument. The use to which stolen jewelry is put is quite irrelevant in determining whether depriving its true owner of his present possessory interest in it is venial; because of the nature of the item and the true owner's interests in physical possession of it, the law finds the taking objectionable even if the thief does not use the item at all. Theft of a particular item of personal property of course may have commercial significance, for the thief deprives the owner of his right to sell that particular item to any individual. Time-shifting does not even remotely entail comparable consequences to the copyright owner. Moreover, the time-shifter no more steals the program by watching it once than does the live viewer, and the live viewer is no more likely to buy prerecorded videotapes than is the time-shifter. Indeed, no live viewer would buy a prerecorded videotape if he did not have access to a VTR.

If you want to amuse yourself, go check out patent 6,025,810