Last September, David wrote about Rambus and its conviction by the FTC for illegal actions Link here . He went on to describe the behavior of the patent troll focused on computer ram chip makers. "In the ultimate submarine patent manuever, they not only patented an obvious idea and kept it secret, but then joined a standard making body, and without revealing they held a patent on the idea encouraged the body to agree on a standard that infringed their patent." Note that the FTC case first charged Rambus in June 2002.

Rambus has frequently been controversial. Here is a list of stories cited on TechDirt starting in 2001 Link here . Following the FTC determination, it can now look for further trouble, this time from the European authorities. The FTC finding provided the Europeans with the basis for a further complaint, based on the fact that the FTC determination would not cover ram that originated outside of the US and did not pass through the US. The Europeans have come up with a new descriptor for Rambus' illegal behavior as a "patent ambush", a new type of patent abuse Link here and Here .

The long history of this case suggests how difficult it is to get to closure. In Rambus' case, the threat of legal action has never been enough to deter. Even now, Rambus asserts that the FTC case is old news and they are appealing in the courts. Justice delayed.

One significant recent innovation is the introduction of health clinics into pharmacies. The article plausibly says that this is both convenient and cheap, especially for people who are poor or who don't have health insurance. Of course it represents competition for doctors (the clinics are staffed by nurse practitioners). Do I have to tell you what the president of the American Academy of Family Physicians had to say about the clinics?

[he] said the clinics have risen out of a broken health care system.

"The clinics are one response. They are not an answer."

and the AMA?

[they] passed a resolution in June asking state and federal authorities to investigate whether there was a conflict of interest in drug-store chains that both write and fill prescriptions.

The desire for monopoly springs eternal...

Here's a link to a copy of "The Misunderstood Idea of Copyright" by Karl-Erik Tallmo.

Here is the homepage for his forthcoming book, The History of Copyright: A Critical Overview with Source Texts in Five Languages.

A great article on why educators are on the wrong side of the copyright wars. It also includes a great analysis on how corporations and private institutions are being deputized to enforce copyright - thus preventing law officials from otherwise having to spend resources that might make them re-think copyright law.

[Hat-tip: Instapundit]

An earlier post by John highlights the move in Congress to extend copyright protection to the fashion industry. The mere fact that there is no problem to solve - innovation in fashion is thriving after all - appears not to be a consideration. A recent article by Kal Raustiala and Christopher Sprigman in the New Republic points out it is worse than that: the most likely effect of extending copyright protection to the fashion industry will be to kill innovation in the industry. They explain why:

By allowing the copying of attractive designs, current law fits well with the industry's basic mission--to set new fashion trends and then convince us to chase them. And the trend-driven copying of attractive designs ensures that those designs diffuse rapidly in the marketplace. This, in turn, makes the early adopters want a new style, because nothing is less attractive than seeing your carefully chosen clothes on the backs of the hoi polloi. In short, copying is the engine that drives the fashion cycle.

Schumer's bill would kill that engine.

A federal appeals court has issued a ruling this week that makes it more difficult to accuse a company of "willful" patent infringement.

Court opinion here.

News summary here.

Patently-O Patent Blog input here.

It seems that 25% of the population of Los Angeles County consists of "thieves" (at least as some would describe it).

Sample money quotes from the article -

[O]ne in four people in Los Angeles County knowingly bought, copied or downloaded illegal goods in the last year, according to a Gallup Organization survey commissioned by the U.S. Chamber of Commerce and scheduled to be released today.

Although previous studies have documented piracy's toll on the Los Angeles economy, the U.S. Chamber report is the first to focus on the attitudes and behavior of consumers here who knowingly buy fake goods, including bootleg movies, illegally copied CDs, knockoff handbags and counterfeit auto parts.

"The study confirmed what we already knew: That the buying of these products is widespread and is viewed as a victimless crime," said Caroline Joiner, executive director of the chamber's global anti-counterfeiting and piracy initiative.

The 25% piracy rate of Los Angeles County residents surveyed in May and June was slightly higher than the 20% nationwide rate the chamber found last year.

…

Justin Hughes, a law professor and piracy expert at Cardozo School of Law in New York, said Los Angeles might have a higher rate of counterfeiting than other cities because of the high volume of goods flowing through the ports of Los Angeles and Long Beach. But, he added, the latest data reflect broad consumer behavior.

"Most Americans do understand copyright and trademark laws, but it's a bit like speeding laws," Hughes said. "We know they are there, and they're a good thing, but we usually find ourselves going five to 10 miles over the speed limit."

In terms of trying to objectively describe the way many currently perceive their relationship with intellectual property, Professor Hughes' "speed limit" analogy seems to be a fair one. However, it leaves out a crucial component - the direct relationship between the perceived fairness/appropriateness of the law and the incidence of those who will ignore it.

For instance, let us assume that a federally mandated speed limit was increased to 80 mph in the U.S. Would people still continue to go "five to 10 miles over the speed limit"? Surely many would, but it is fair to assume that the overall amount of speeding scofflaws would drastically increase decrease as the overall speed limit increases - and vice versa. If the federally mandated speed limit was instead capped at only 45 mph, then surely the incidence of speeding would increase (not just in terms of the overall number of drivers who would ignore the law, but also in terms of the level of contempt for it. Speeders would likely start averaging 10 to 15 miles over the speed limit, instead of the more casual 5 to 10). They may continue to speed more often and with more vigor, even though they might end up confessing to pollsters that on a purely abstract level, a stricter enforcement of speed limits would be a good thing for society.

There would be a simple reason for this dynamic - many people of perfectly good character would inherently perceive a 45-mile-an-hour speed limit as an abuse of federal authority that would hamper our quality of life well out of proportion to any potential social good such as safety/environmental concerns or energy conservation. Obviously, the definition of a fair and proper speed limit is partially dictated by the state of technology and infrastructure (i.e., the conditions of our road and highway systems, how advanced current automobile engineering and safety features are in any given era, etc.).

So let's bring the analogy back to intellectual property. If we were to analogize the strictness of current intellectual property laws to the speed limit, what would the federally enforced speed limit be today?

I'd argue that it is only about 35-miles-per-hour; a quite unreasonable restriction that hampers human progress to a level far out of proportion to any potential goods that IP legal schemes might have to offer. This too is partially dictated by the current state of our technology and infrastructure (i.e., the Internet, digital technology, how communication has evolved with new media, etc.). That is real the reason why more and more people are simply choosing to ignore the current state of the law and are rightfully guilt free about the situation.

But none of this is preventing the L.A. establishment from lining up to do the bidding of the IP lobby. As the Daily News reports -

The findings were expected to be discussed at the Westin Bonaventure hotel in downtown Los Angeles this morning at a U.S. Chamber of Commerce workshop expected to be attended by several legislators, city council members and local officials, including Mayor Antonio Villaraigosa and City Attorney Rocky Delgadillo.

You don't suppose that the "workshop" might convince local legislatures to help fight for sensible IP reform, do you? Nah. Didn't think so. We all know how these "workshops" play out and what the real goals are here: Creating an even harsher IP environment in order to hang on to the status quo business models for politically connected businesses. One that may very well turn an even higher percentage of the population into "thieves" and "pirates" in their eyes.

As I have increased my understanding of IP law and pondered the success of IP owners in expanding their monopoly interests, I have come increasingly to wonder if a more effective way of fighting back can be found. Advocacy is obviously important in increasing public understanding and I think that it has had some success, as for example, in getting the Patent Office to revise its procedures for vetting patent applications link here. Another track has now been suggested by a suit against the RIAA whose misbehavior has prompted a victim to seek to get her suit granted class-action status, potentially multiplying the cost for the offender link here. Still another avenue emerged when I encountered the story of a youngster who taped a few seconds of a feature film, was prosecuted, and got the movie chain boycotted link here.

Anybody else have more ideas of how to fight back?

William Patry has a good blog post on the attempts by record labels to legally attack sellers of promotional CDs, as well as pawn shop owners. Stores in Florida have to apply for a resellers' permit, take a thumb print of CD sellers, and make a copy of their drivers' licenses. They also have to wait 30 days before selling CDs.

Apparently the record labels claim the first sale doctrine doesn't apply because resale is proscribed by the license terms.

The comments are interesting, including Crosbie Fitch's. In their comments, Prof. Patry and copyright lawyer LKB note the Pro-CD v. Zeidenberg case (1996), which enforced shrinkwrap licensing restriction for a telephone directory CD.

Here is a 1998 comment on shrinkwrap licensing by copyright lawyer Pamela Samuelson.

Note her discussion of Judge Easterbrook's decision why copyright shouldn't override a shrinkwrap licensing agreement in this case--and a bit further down Bill Gates' dismissal of a question about "fair use" by a Microsoft summer intern.

"Fair use"--isn't that what slaveowners consented to when they let their slaves visit town once in a while?

And regarding Easterbook's third reason for ruling for Pro-CD--that it wouldn't be able to recapture its investment in the telephone directory data if users could upload the date for free: what if on day one slavery were legal; on day two a slaveowner invested in new slaves; then on day three the legal authorities ruled slavery illegal, thus making his slave investment worthless? Would Judge Easterbrook rush to the defense of the slave owner, citing his concern about averting a "market failure," which would occur if the value of slaves plummeted to zero?

(Never mind that his idea of "market failure" is not what economists conventionally mean by that term.)

As a neophyte in IP, I am repeatedly struck by the absurd level to which protection has been taken. Matt Yglesias has a short but striking example involving Senator Schumer's proposed copyright for fashion design and refers us to this website link here. Its authors point out, "To understand exactly how the Schumer bill would affect fashion innovation, it helps to review one basic point about copyright law: it does not simply prohibit "exact" copies. Rather, copyright law makes unlawful any use of a copyrighted work that results in a new work that is 'substantially similar' to the old."

Yglesias then goes on to compare the vitality of the cookbook industry based on the fact that recipes cannot be copyrighted, even while the cookbook can be link here. Without that, he suggests, "the bulk of the market would already be locked-down by older cookbooks, and to publish anything new you'd have to be prepared to lawyer up and fight off a thousand lawsuits alleging that your recipes are too derivative."