Since the subject of Tim Lee came up in the comments to an earlier post, it is perhaps opportune for me to mention his talk given during the panel on the DMCA. I should emphasize that Tim and I scarcely agree on everything: it is clear from his comments on the conference that I didn't persuade him that abolishing copyright is a good idea. Be that as it may - I thought he gave one of the most coherent criticisms of the DMCA I have heard. Since I don't think copyright achieves the intended purpose of increases the production or quality of books, movies, music or other copyrightable creations, I obviously don't have much use for the DMCA. But it is possible to be in favor of copyright and also against the DMCA. I think the EFF falls into this category - and while I think they make valid criticisms of the DMCA, I think if I agreed that copyright was a good idea, I wouldn't be persuaded by their arguments. I thought Tim made a much stronger case: basically that the DMCA isn't being used for the intended purpose, but rather to create monopolies unrelated to copyright at all. His example of the ipod using the DMCA to lock out competition seemed like a strong one.

Mike Masnick spoke at the conference and has some good posts about it and related IP issues on Techdirt. Scroll down a bit.

I attended a conference on copyright yesterday at the CATO Institute. I'll try to provide some more detailed reports later, but first a general impression. There was a great deal of polarization among the panelists: basically rabidly for or against copyright. (You can guess which group I am in.) Jim Harper, the organizer, took a fairly middle of the road position, as did the moderators, who for the most part didn't express opinions, but they were the exceptions.

You may attribute this to bias if you wish: but my overall impression was that only the anti-copyright group tried to present evidence. "Our" group pointed to numerous facts and examples in support of our view that copyright law as it is written is a failure. The "procopyright" group seemed to rely fairly exclusively on theoretical arguments. For example, I presented evidence that copyrights do not achieve the desired goal of increasing the amount of creation. The rebuttal by Jim DeLong was along the lines of "it is inconcievable that anyone would spend the time and effort to create under these circumstances." This of course is a purely theoretical argument, and it is frustrating to have people try to rebut facts with theories about why the facts can't exist.

Another striking fact about the "procopyright" group: they seem to all be paid lobbyists. (Don't take that wrong - Gary Shapiro is also a paid lobbyist and spoke extremely eloquently against the DMCA.) Emery Simon, the general counsel of the Business Software Alliance certainly is, and the remaining panelists in the "procopyright" group were all from the Progress & Freedom Foundation, which was alleged to be funded in part by money from copyright lobbying groups. I have no idea if that is true or not, but in the case of intellectual property there is a simple test for whether pro-IP arguments are principled or not. If you argue that we have to have/strengthen IP protection to satisfy our international treaty obligations, then you are unprincipled. There are several reasons why this argument is not principled:

* The U.S. lobbied to put in the strong IP provision in the WIPO. We can certainly lobby to take them out - and we would have lots of support if we did. So if we think that something like the DMCA is too strong, but weakening it is going to violate the WIPO, then you should argue that we need to amend the WIPO first - but not that our hands are tied.

* For the most part these arguments are an outright lie. For example, it was argued that we needed the to retroactively extend copyright terms by 20 years to coordinate our law with the international standard. That was not true - and now for example, in the U.K. they are arguing (correctly) that they need to extend their term by 20 years to match what we have done.

* The whipsawing of countries - sneaking provisions into international treaties, or getting a law passed in one country then going around arguing that everyone else needs to match it - is not principled. If you think that something like the DMCA is good make your argument and stand up and count the votes. Don't sneak it into international treaties in the dark of night, then turn around and argue that this is "the rule of law."

Needless to say several of the speakers from the Progress & Freedom Foundation made the "satisfy our international treaty obligations" argument - which leads me to believe that they are acting as paid lobbyists not as intellectual observers.

I will be participating in a panel on copyright Wednesday, April 26, 2006 at the Cato Institute. Open to the public - if you are in D.C. come by. The address is
F. A. Hayek Auditorium
Cato Institute
1000 Massachusetts Ave., N.W.
Washington, D.C.

On Friday I attended a wonderful conference organized by my colleague in the law school Professor Neil Netanel on media and entertainment. I meant to post about it earlier, but life intervened. There were four talks, the first by Eli Noam of Columbia on media scholars I unfortunately missed, so I can't comment on.

The second talk by Christopher Yoo of Vanderbilt was on network neutrality. I was pleased to learn that I am not the only one who thinks that the market can probably sort out neutrality on its own without government intervention. Many scholars I admire, such as Lessig, and with whom I generally agree on copyright and patent issues, think that government enforcement of network neutrality is desirable. The main issue I see has to do with the monopoly over the last mile granted by local governments. There is not real problem with backbone competition - as Yoo says, entry is easy. Roger Noll, one of the later speakers pointed out that wireless is probably going to break the back of the last mile monopoly. So the most effective federal government policy on issues such as network neutrality is to open up a lot of spectrum for wireless.

The third talk was by Randal Picker of Chicago on mistrust based DRM. He argued in favor of a DRM system in which leaking your DRM encrypted files would reveal personal information you would prefer not to have revealed. This would give users an incentive not to leak. Ed Felten had a long reply to Randal on his blog. I am inclined to agree with Ed that this isn't a terribly good idea. It doesn't concern me a great deal - the market has dealt pretty effectively with DRM so far. My concern is only with government mandated DRM - which I think is a bad idea regardless of what form it might take.

I think the big gap here is between those who think they understand the technology - and think that DRM can't work - and those that admit they don't understand the technology - and think that it might. While I fall into the former camp, I should point out that the experts haven't alway been right about these things. In the later 1970s I argued to a friend who was far more expert about computers than I that small personal computers would take over the universe soon. My technical friend told me that would never happen - while electronics are getting smaller, mass storage like disk drives are mechanical devices, and simply could not drop rapidly in size and weight.

The final talk was by Roger Noll of Stanford. He gave a fascinating talk about the misuse of intellectual property. Apparently the legal penalties are draconian - you can effectively lose all of your rights to the property during the period of misuse. So, for example, if the recording industry was guilty of misusing their copyrights to violate the anti-trust laws (and it looks like they did) then anyone who downloaded any of their music during the period of misues (it ended in 2003) is off the hook. The movie industry faces a similar problem. Before we could all rush off and illegally download something in hopes of filing a class action lawsuit against the entertainment industry (apparently 14 such lawsuits are already pending) David Nimmer - a world expert in copyright law - shed some doubt on how draconian the punishment really is. Apparently the law is a little grey in this area: it may be that while anything the entertainment industry did during the period of misuse is invalid - that is lawsuits they won during that period might go out the door - they may be able to sue retroactively after they end the misuse.

A talk by Paul Graham at Google about whether software patents are evil. One concern he has is whether in a world where patents are legal firms should patent things. Like Graham I would have a hard time advising anyone not to take advantage of the law as it exists - especially since if you don't take out defensive patents you are a potential victim. The talk is hardly a ringing endorsement of patents as a matter of public policy, though. First, he provides some insight into what sort of companies file patent lawsuits (as opposed to filing patents)

A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee. You don't do that if you can still reach the ball, even if you genuinely believe you've been fouled. So a company threatening patent suits is a company in trouble.

When we were working on Viaweb, a bigger company in the e-commerce business was granted a patent on online ordering, or something like that. I got a call from a VP there asking if we'd like to license it. I replied that I thought the patent was completely bogus, and would never hold up in court. "Ok," he replied. "So, are you guys hiring?"

The main case against patents is that they don't work terribly well in encouraging innovation - the reason for having them in the first place. Graham apparently agrees

In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don't affect innovation much, one way or the other. Most innovation in the software business happens in startups, and startups should simply ignore other companies' patents. At least, that's what we advise, and we bet money on that advice.

The media are reporting

High Court judge Peter Smith rejected a copyright-infringement claim by Michael Baigent and Richard Leigh, authors of "The Holy Blood and the Holy Grail," who claimed that Brown's blockbuster "appropriated the architecture" of their 1982 book. In the United States, the book is titled, "Holy Blood, Holy Grail."

...

Smith said the plaintiffs had based their copying claim on a "selective number of facts and ideas artificially taken out of (the book) for the purpose of the litigation."

But perhaps the real purpose of the lawsuit was this?

Baigent and Leigh['s] ... 24-year-old book is selling 7,000 copies a week in Britain, compared with a few hundred before the case began. Baigent's new book, "The Jesus Papers: Exposing the Greatest Cover-Up in History," has an initial print run of 150,000 copies in the United States.

From Merriam-Webster

theft is the act of stealing; specifically: the felonious taking and removing of personal property with intent to deprive the rightful owner of it.

Does making a copy of my idea "deprive" me of it? If we grant a monopoly over the "idea" of Mickey Mouse, or over soap the only right you have is the exclusive right to do business with your customers. So the only thing I can "steal" from you are your customers. But your customers might not be so eager to be your property.

It seems like we can post one of these stories every day. CNN and other media are reporting

Online DVD rental company Netflix Inc. sued rival Blockbuster Inc. for patent infringement Tuesday, asking a federal judge in Northern California to shut down Blockbuster's 18-month-old online rental service and award Netflix damages, according to a copy of the filing.

...

The first patent, granted in 2003, covers the method by which Netflix customers select and receive a certain number of movies at a time, and return them for more titles.

The second patent, issued Tuesday, "covers a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue -- of DVDs to be rented," the lawsuit said.

Maybe the geniuses responsible for the current law can explain how this "promote[s] the progress of science and useful arts?"

There is an article in the Washington Post about Tivo's lawsuit against EchoStar. Apparently

TiVo is suing EchoStar, the parent of the Dish satellite TV service, claiming it stole TiVo's technology that allows users to digitally record one show while watching another.

Read that again. Obviously they didn't invent the idea of recording one show while watching another - VCRs were always able to do that. Obviously to anyone who had ever programmed a computer, the idea of doing it digitally is completely trivial - it is a matter of getting the software/hardware combination to work fast enough. So maybe EchoStar some stole Tivo's hard work in getting things to work right? Apparently not

EchoStar attorney Harold McElhinny has been telling the Texas jury that EchoStar invented a DVR that uses technology different from that of TiVo. But it is an uphill battle, Clark said, in part because of the legal rule known as the "doctrine of equivalents."

The rule protects patent-holders from those who would use slightly different technology in order to build a device with substantially the same functionality as a product that already has been patented. The rule could be particularly relevant in this case because TiVo introduced DVRs to the public and its name has become synonymous with the technology.

So what was it that Tivo did to deserve a monopoly? Apparently they were first to market, and had the misfortune to have a sufficiently bad business model that they need a government bailout.