There have been several references in blogs to the current debate in Sweden over stricter enforcement of copyright vs. making not-for-profit file exchanges completely legal link here. Perhaps the most significant elements left out of these posts was the role of Pirate Bay, the BitTorrent site of some fame, and the creation in Sweden of a Pirate Party, addressing this issue. Thirteen Swedish MPs in the Moderate Party have now come out in support of free exchange. The issue started with a government study of stopping currently "illegal" exchanges, leading to a set of extreme measures like taking away internet access to anyone caught exchanging copyrighted material and spying on private internet traffic. These appear to have violated the Swedish sense of individual rights. The copyright owners are now under attack as self-interested big businesses, not as protecting the rights of artists and authors.

This story isn't over. We don't know how it will finally play out. Though the opposition to more restrictions and more stringent enforcement is strong, it doesn't mean that legalizing all free exchanges will happen. Rather, the present lax regime of not, for the most part, enforcing copyright may simply continue.

My most optimistic take is that free exchange will undermine restrictions on free exchange of copyrighted material around the world and force the recording and video business to find other business models. That will happen as long as Swedish sources of free downloads can be accessed, as currently with Pirate Bay. They do need better advertising in the rest of the world.

We should however, expect the RIAA, MPAA, and owners of copyrighted material to go to extremes to put pressure on their governments and through them, on the Swedish government. We all have an interest in seeing that they don't succeed.

The anonymous Troll Tracker sums up 2007 on the patent front this way: "We reached the end of 2007 link here. All the other blogs are reporting an overall decrease in IP litigation, a cutback from 2006, or are reporting the slightest of increases in patent filings from 2006 to 2007. That's simply not true. By the real count -- the number of defendants sued for patent infringement -- 2007 was a record year. In fact, here's my headline: '2007 shows a 30% increase in patent litigation over 2006, fueled by a 40% increase in the Eastern District of Texas.'"

So all is not well on the patent front, contrary to what the patent monopolists want you to believe.

The post is full of more such good stuff, so have a look.

Rereading N. Stephan Kinsella's paper "Against Intellectual Property", it occurs to me that strictly speaking a patent is not a monopoly, but instead is an exclusionary device that legally prohibits anyone, even an independent inventor, from copying a patented invention, method, or process. It gives the inventor, in cahoots with the State of course, the right to exclude others from inventing the patented object. A patent does not give an inventor the right to produce his own invention, although he can do so as a consequence of the natural right he has in his property, which includes his body (self-ownership) and his legally owned materials he would use to produce it. Of course, the effect is the same as a monopoly, because he is the only person who can legally produce the ideal object that is the subject of the patent.

Exclusionopoly?

For an example of the contradiction of this law, see Kinsella, pp. 4-5, n. 12. Then call your Congressman/MP, etc. and tell him/her that "I'm mad as hell and I'm not going to take it anymore."

Peter Finch, the only actor ever to win a posthumous Oscar award for Best Actor, would be proud.

Writing in the Washington Post today, Monica Hesse relates that a number of commercial media have taken copyrighted material like amateur photos from social sites like Facebook and used them, for example, in their ads without seeking permission. Some are now being sued or being told to stop link here.

Hesse is able to show that the violations have been frequent and verge on the systematic. The companies doing it offer excuses that it was the fault of a low level employee or a rare and thus exceptional attempt to capture reality, but the frequency suggests it was policy. Hesse quotes Larry Lessig that this sort of behavior will stop and order prevail when the community becomes familiar with the law and the individual prosecutes violations. Hesse suggests instead "total anarchy".

I wonder whether use of "anarchy" here isn't right, given that individuals, particularly the young, feel pretty free about violating copyright, pleading either ignorance or assuming they are too small to go after link here. The law on fair use is often quite unclear, judging from the attempts of various groups to redefine it and the absence of court rulings or clear statute law link here. I feel like throwing up my hands and saying let's get rid of copyright but then I realize it isn't going to happen.

But then I remember that we did get rid of prohibition when violations became overwhelming. Is this comparable?

The New York Times has a short piece noting that the British violinist, Tasmin Little, has made available her next recording, The Naked Violin, free for downloading in order to make the music more popular link here. Little is quoted as saying, "Just the fact that people can listen to it on a computer means that hopefully, they won't feel a need to have an education or be from a certain sector of society." You can download it from tasminlittle.net.

What is hopefully the final version of Michele's and my book Against Monopoly is online. It is in production at Cambridge University Press and we hope will hit the bookstores this summer. In the meantime the first review is in and favorable. For the sake of disclosure the author of the review is one of our fellow bloggers here - Stephen Spear. The review is well worth reading not so much on account of the book, but because it gives a wonderfully clear and succinct statement of the case against intellectual monopoly.

Two more authors have started the free downloading of their work according to Mike Masnick who takes the view that "obscurity is a bigger threat to being read than piracy" link here. Good point. One variation on the theme is to include ads with the book's download, making it produce some immediate, even if modest, income link here.

This could be catching.

Jacqui Cheng writes that the Japanese government is proposing extensive invasions of privacy including e-mail and other media, TV, news, and websites link here. Included is the web address of Gyaku, a Japanese a non-profit media project, which provides great detail in English on what is planned link here.

An operative paragraph of concern to Americans according to Cheng reads: "Finally, the proposals meant to target copyright infringement through P2P are the most invasive of the three. Currently, Japanese copyright law bars anyone from uploading copyrighted material to public websites, but the Japanese Ministry of Education, Culture, Sports, Science, and Technology (Monbukagakusho) has agreed to take a look at the law to see if it can't be taken a step further. Proponents of a tougher law have suggested that all copyrighted media make use of a unique watermark, and that any media that doesn't bear this mark would be considered "illegal."

Given the American myth that copyright is such a boon to innovation and the success of IP owners in spreading the faith and mirror images of our law, we face growing encroachment on freedom and on technological progress. Reversing the restrictions becomes more difficult as more and more countries sign on. Our trade diplomats should be resisting this trend, not aiding and abetting it.

Philip J Cunningham writes " I was browsing for DVDs on a cold winter afternoon in one of Beijing's finer bootleg shops when I came upon three boxed sets of DVDs critical of communism. One of the pirated sets, produced by Turkish presenter Harun Yahya, promised to detail the horrors of communism from an Islamic perspective, another by an American producer chronicled the uncomfortably bloody rise of modern China and the third contained Tiananmen footage from BBC TV News. Presumably the DVD pirates were in it for the money, but were they also unwittingly making China a freer place?... [T]he copyright zealots, mostly big US companies, with profit first and foremost on the mind, come down firmly on the side of information control and in that sense side firmly with the Beijing authorities."link here

Who would have thought that IP critics were revolutionaries? Stop the MPAA!

Today's Wall Street Journal has an interesting article about an upcoming case on patent licenses (p. B3A). Unfortunately, they seem to have omitted this page from the online edition, as various p. Bs are listed, but not B3A. The search engine failed to retrieve it, so apologies for not providing a link.

The suit is between Quanta Computer Inc. (allied with other Taiwanese computer manufacturers) and a South Korean firm LG Electronics Inc. LG licensed some patents to Intel in 2000, requiring that it tell its customers not to combine Intel chips with non-Intel components, which it did. Some of Intel's customers ignored the restriction, however, so LG sued them for infringement.

LG lost in district court (hooray!), which said that, since LG had granted Intel an unrestricted license to sell its technology, its patents were therefore "exhausted," and apparently (I haven't read the decision) had no further claims on Intel's customers. Unfortunately, the Federal Circuit Court of Appeals reversed the decision (boo!), claiming that the patents weren't exhausted because of the notification Intel had to send its customers.

As is usually the case in these matters, a slew of amicus briefs have been filed, and interested parties are lining up on both sides. (But who speaks for liberty and free markets, the unspoken third corner in this trianglar tussle? Well, this blog for one.)

On one side are the major patent monopolists and patent licensors Qualcomm Inc. and Wi-LAN Inc., which argue that an expansive interpretation of exhaustion could thwart their patent "rights" and restrict their ability to profit from their patents. On the other side are what I'll call minor patent monopolists, Hewlett-Packard Co., Dell Inc. and Cisco Systems Inc.--which are representing the interests of patent licensees in this case. They argue that a narrow interpretation of exhaustion could result in conditional license agreements that enable patentees to obtain royalties up and down the value chain--upstream and downstream from a patentee's customer(s). (That cheer you hear in the background is from the IP lawyers' bar. "You won the case? We win! You lost the case? We win!")

Jim Skippen, the CEO of Wi-LAN, a Canadian wireless patent troll, er licensor, says a broad view of the matter might induce patentees to foist high royalty demands on downstream licensees to compensate for not being able to license upstream firms, such as semiconductor and component manufacturers. Since upstream firms generally indemnify downstream firms against infringement liability, this could lead to conflict between the two groups.

Mr. Skippen is quoted saying: "What will happen is you won't be able to license down the chain so you'll go after the highest-value guy, and guess what, the component guys have all given indemnities."

But Mr. Skippen, what is the ultimate cause of the conflict, or to put it another way, who exactly are you trying to kid, kiddo? Who has the dirty hands here? Forget where the customers' yachts are, where are the customers' rights?

The article notes that "[t]he doctrine of patent exhaustion, also known as first-sale doctrine, is triggered when the first authorized, and unrestricted sale of a patented article takes place." Dell, HP, Cisco, and eBay Inc. jointly filed a brief arguing that it should be incumbent upon a patent holder to assess the economic value of its invention, and that its "first purchaser" should pay full royalty, and pass along the cost of a license to its customers.

A lawyer for IBM hopes the SCOTUS takes a "balanced" view of exhaustion. He says, "We don't think anyone [should] be able to sell, or license someone to sell, a product and then go out and tell the [licensee's] innocent customers who buy that product, "Gee, we got some more news for you, you need a patent license in order to do anything with that product."

The case will be heard Jan. 16.

Here is an interesting take on patent exhaustion with some basic history: The Patent Prospector.

Here is the Intellectual Property Law Blog on the case.

Here is the Wikipedia article on First Sale Doctrine.

Here is an article on pill splitting from Howrey LLP.

This stuff is giving me a headache already. Does anyone have an aspirin? Just don't split it--I don't want you to get sued by some IP legal hotshot for violating a patent, even though it's your property and your idea.