While we here at againstmonopoly.org are busy complaining about copyright, Larry Lessig is busy trying to do something about it. The Kahle vs. Gonzales case challenges the change from "opt-in" to "opt-out" copyright that was introduced in 1976. Except for a few authors and media firms who face less competition from existing work that is now "orphaned" and unusable by anyone, few people benefit from this change, so it has to be rated among the greater policy blunders of a Congress that has made a few. I'm doubtful that the courts will overrule a change in the law made in 1976 however stupid it might be - no doubt they will find some "infinity is really finite" way to parse the law. But I'm glad Lessig is pursuing this. He has a good post on some of the issues - just scroll past the beginning which is a not entirely comprehensible reference to a previous post until he starts talking about the justices and the questions they asked.

Via Bill Zame, there is an article in the New Republic about the role of intellectual property in assuring that you don't own your digital camera

While you might own the plastic, glass, and metal in the camera, you don't actually own the software that makes it run--you only have a license to it. And that license is pretty restrictive. If you let anyone outside your immediate family use the camera--if you lend it to a friend for the weekend or even ask a stranger to take a picture of you and your wife--Canon could technically sue you for breach of contract.

The article is here, but unless you have a subscription (I don't) you won't be able to read beyond the first paragraph. [Correction: Scate points out I was too hasty here - you just need to register to read the article...]

Over at research on innovation the current issue of their newsletter is out. A nice article about the hot topic of user innovation.

I'm travelling in Mexico right now, but some interesting IP news from the register . In Spain a judge has apprently ruled that downloading is legal.

The ruling sent shockwaves through the music industry as the decision allows Spain's 16 million internet users to swap music without being punished. Spanish recording industry federation Promusicae says it will appeal against the decision.

Meanwhile, the manager of the rock groups Clash and Pink Floyd is quoted as saying

They [the big label managers] don't [believe in DRM]. Not anymore.

And that was done by Sony BMG - what the fuck was that [rootkit DRM] about? The other was iTunes - and they've seen how kids don't like it. The unitary payment doesn't suit the technology, it doesn't suit how they're actually using downloads - which is to explore and move around. You don't want to pay a dollar for each track when you want to explore music.

"But he's also optimistic that for almost everyone else [except the big labels] - indie labels, musicians, songwriters and budding entrepreneurs - as well as network providers - the future's going to be pretty bright."

And so am I. And no, I don't think they should "go out and sell more T-shirts." There are a lot of better revenue generating models, although none quite so lucrative as Jenner's proposal for government tax financing.

(hattip slashdot). Some of you may be familiar with a science fiction television show "firefly," cancelled despite a small cult following, later made into a movie, entitled "serenity." Universal studios in an effort to promote the movie encouraged fans to market the movie by

[creating] a community [the browncoats] around the release of Serenity that harnessed the power of a large member base that exceeded the most optimistic of expectations. Members were encouraged to form regional groups to promote the film and perform activities that would help generate word of mouth, like creating bumper stickers and gift cards to accompany the DVD release. (beaffinitive)

Can you predict what happened next?

With the shutting down of Blue Sun Shirts at the behest of FOX, cease and desist letters going out to owners of Browncoat shops on CafePress, at least one fan-favorite promoter receiving a demand from Universal Studios Licensing LLC for nearly $9,000 in retroactive licensing fees, and the resulting chilling effect leading to other fans shutting down preemptively many Browncoats got to thinking about just how many hours they spent on helping to market and promote Serenity, in essence with the tacit agreement of Universal Pictures, if not their outright official encouragement. (browncoatinvoice.com)

File under "imitating the RIAA - how to win the heart and minds of your fans - sue them"

Via Slashdot we find IBM suing Amazon for patent infringement. One of the downsides of the patent system is that people genuinely think they invented something new (Amazon) so they think they should be entitled to sue anyone who does anything vaguely similar (Barnes and Noble) - and they are outraged that anyone would suggest (IBM) that maybe what they invented wasn't really so new. People tend to be very proprietary about their ideas, rarely recognizing the extent to which the build on and incorporate other ideas. Is it utopian to suggest that instead of IBM sues Amazon, sues someone else, sues IBM - maybe we should just get rid of patents? Shifting money around in circles doesn't enhance incentives to innovate, and the court system has not proven a very effective method of resolving disputes over intellectual credit.

2006 - NORTH COUNTRY GAZETTE ALL RIGHTS RESERVED - NO UNAUTHORIZED REPRODUCTION (see the bottom of the page) - of course fair use allows unauthorized reproduction - like my reproduction of their copyright notice, for example. Hattip Volokh who points out that while it might be possible to waive fair use by signing a contract (a gray area to be sure), it certainly isn't by opening a web page that announces you've waived your rights.

An earlier post observes that fashion design - and industry with thriving innovation and no IP - is eager to put new designs under lock and key. Needless to say, the culinary industry is not far behind. Pete Wells article in food and wine (hattip: Jesse Walker) describes Homaru Cantu's great new innovation: patenting recipes.

For all his originality, Cantu is not the only one who thinks that the ideas born in a restaurant should belong to the chef. There are at least two ways to claim legal protection for intellectual property. One is Cantu's route, through patents, but another, copyrighting a dish, could have much more far-reaching effects on the culinary world. Chefs have traditionally worked on an open-source model, freely borrowing and expanding on each other's ideas and, yes, sometimes even stealing them outright. But some influential people are now talking about changing the copyright law so that chefs own their recipes the same way composers own their songs. Under this plan, anyone who wanted to borrow someone else's recipe would have to pay a licensing fee.

Am I alone in doubting that this will increase culinary innovation?

From the New York Times via Slashdot: IBM has decided to adopt a more open procedure of patenting.

The move by I.B.M. does carry business risks. Patents typically take three or four years after filing to be approved by the patent office. Companies often try to keep patent applications private for as long as possible, to try to hide their technical intentions from rivals.

"Competitors will know years ahead in some cases what fields we're working on," said John Kelly, senior vice president for technology and intellectual property at I.B.M. "We've decided we'll take that risk and seek our competitive advantage elsewhere."

You mean they plan to make money by competing? How unusual. Perhaps the company is run by engineers and not lawyers?

Scott Carpenter has started a nice blog Moving to Freedom on free software and related issues about ideas and intellectual property. Among other things he has a nice post reminding us of Ben Franklin's views of patent law.