A long post at Volokh. Note the lottery ticket angle. Shades of Plant on copyright.

Then we have Libertarian lawyer Randy Barnett pointing out the contradictions of IP as property

In the Progress Clause, the Constitution refers to "exclusive right" for "limited times" not to IP, which has nothing to do with property.

Hunter McDaniel adds in the comments that IP was used to create a false metaphor, and that any government-granted monopoly has value for the grantee but that that does not make it property.

Thanks to Mark Brady for the link.

Here you see how all the overlapping claims make intellectual property unmanageable.

Heingartner, Douglas. 2007. "Patent Fights Are a Legacy of MP3's Tangled Origins." New York Times (5 March).

"The confusion stems from the number of companies and institutions -- including Thomson, Royal Philips Electronics and AT&T (through Bell Labs, now part of Alcatel-Lucent) -- that worked to create the MP3 standard almost two decades ago. The patent claims of those and others are increasingly being backed up by aggressive enforcement efforts, including lawsuits and even seizures of music players by customs authorities."

"Until now, the most prominent holder of MP3 patents has been the Fraunhofer Society of Germany, which was founded in 1949 and has become Europe's largest applied research organization. The division that helped develop MP3, the Fraunhofer Institute for Integrated Circuits, earns millions of dollars a year in licensing fees from software makers like Microsoft, which incorporates the format into its Windows Media Player, and from music player manufacturers like Apple. The payments -- typically $2,500 for a video game, or $2 a unit for music players -- are administered for Fraunhofer by the French electronics firm Thomson, which also played a role in the early development of MP3."

The Web site of the Fraunhofer: "Its detailed online history of MP3 portrays the format as an outgrowth of German university research in the 1970s, when German engineers began working on audio compression. One of Fraunhofer's leading audio engineers, Karlheinz Brandenburg, is frequently referred to in the German media as the father of MP3, a title he dismisses."

"But Alcatel-Lucent, which won the court judgment against Microsoft last month, has its own version of that history. It says Bell Labs (whose patent rights Alcatel acquired when it bought Lucent Technologies last year) was the main creative engine behind what went on to become the MP3 standard. 'A common misunderstanding is that Fraunhofer invented MP3,' said John M. Desmarais, the lead lawyer in the Microsoft case for Alcatel-Lucent, which is based in Paris. Though Fraunhofer was involved in the research that led to the MP3 standard issued in 1993, he said, 'Bell Labs had already developed the fundamental technology' in the mid-1980s, 'before Fraunhofer even came on the scene' .... 'MP3 has a lot of parts to it,' and 'two of the key parts are owned by Bell Laboratories,' he said, but 'that doesn't mean that other people don't have an ownership interest'".

"The group that made the MP3 standard official is the International Organization for Standardization, or ISO, a nongovernmental group based in Geneva that sets specifications for items as diverse as shipping containers and dashboard indicators. One of its many internal bodies is the Moving Picture Experts Group, or MPEG, a team of industry specialists established in 1988 to standardize digital multimedia formats."

"Many proposals were submitted for the first standard for audio and video compression, called MPEG-1, which was completed in 1992 and formally published in several parts in 1993. The chosen proposals included Musicam (also known as MPEG-1 Audio Layer 2, a format used in digital broadcasting) and Aspec, which went on to become the basis for MPEG-1 Audio Layer 3, now called MP3."

"Several companies -- including the Dutch electronics giant Philips -- claim patent rights to Musicam, and by extension, to a piece of MP3. 'In the case of MP3, it is very clear that this was not developed only by AT&T, Fraunhofer and Thomson, because it was based upon Musicam,' said Leon van de Kerkhof, a program manager at Philips Applied Technologies who was also a crucial member of the MPEG group at its inception."

"A spokeswoman for Thomson, Martine Esquirou, acknowledged that Fraunhofer and Thomson were not the only holders of MP3-related patents. 'We're not involved in this patent dispute between Microsoft and Alcatel-Lucent,' she said by e-mail. 'Thomson has not and does not license the patents in question'."

"Thomson's licensing program, she said, is based on 20 separate patent families that 'cover at least part of' the MPEG specifications. Thomson licenses these patents to more than 400 hardware and software companies."

"Muddling matters more, many of the companies on Thomson's list of licensees, including Apple, Microsoft, Motorola, Nokia and Samsung, also pay for additional MP3 licenses from Sisvel, an Italian company whose American subsidiary is called Audio MPEG."

"According to Sisvel, the MP3 patents it represents (on behalf of companies including Philips and France Telecom) are “compulsory for complying with the ISO standard.” Sisvel has aggressively enforced these patents -- for example, by having German customs authorities confiscate SanDisk MP3 players from the SanDisk booth at a German trade fair last September. In 2005, Sisvel sued Thomson over licensing fees for MP3 patents that Sisvel said Thompson had stopped paying; they quickly settled."

"In February, a little-known company called Texas MP3 Technologies also entered the fray, suing Apple, Samsung and SanDisk for infringement of what it said were its rightful MP3 patents."

Alan Sipress at the Washington Post link here reports that the Patent Office will begin opening some of its applications to public comment and that the process, initially experimental, may evolve and become Wiki-like. This is not new news as Slashdot reports link here and link here, but seems to promise more change, as the PTO is overwhelmed and increasingly criticized for its decisions.

We critics of the PTO and the evolution of IP law need to follow this closely to make sure that its decisions reflect appropriate attention to such things as prior art and non-obviousness. Is this the time to begin to organize to make our influence felt?

Via Konstantini Kiousis - a YouTube video explaining the world's most important 6 second drum loop: and how and why it is copyrighted.

A nice essay by author Eric Flint on DRM. Flint is affiliated with Baen Press; Baen is a science fiction publishing house that has been a pioneer in selling e-books, and has always offered them free of DRM. (I count myself among their satisfied customers; I've probably spent as much money on Baen e-books the last five years as on paper books.) To Flint's essay I will simply add: I have from time to time been curious as to whether anyone bothers to "share" Baen unencrypted e-books over peer-to-peer networks. The only ones I've ever found are books from the "free lending library" which are the books you are encouraged to redistribute over peer-to-peer.

Here is my take on what Michele just wrote:

Bell Labs was once a jewel of American science. After the Justice Department broke up the Bell System, AT&T let Bell Labs deteriorate until it spun them off as part of Lucent. Lucent, in turn, deteriorated until it was bought up by Alcatel, which seems to be now behaving as a patent troll.

Alcatel just won an enormous patent suit against Microsoft -- $1.52 billion for using Bell Labs work on the MP3 format. The suit manner may or may not hold up, but I presume that Alcatel is now preparing suits against others, finally figuring out how it can commoditize the work of Bell Labs.

If you are interested in how open source produces great software without the benefit of copyright/patent protection, Michele and my article on the Freeman is now available.

... may get seriously hurt by the sword. Today, a California court ruled that Microsoft infringed a couple of Alcatel-Lucent patents on compression of MP3 files and awarded a $1.52 billion damage payment from MS to A-L.

This will not kill MS, but is may teach it a lesson or two. Maybe Bill will wake up from his monopolist's sleep rediscover the value of competing by inventing. Maybe he will recall his earlier statements about the software industry that would have never happened if copyrights and patents had been enforced back then, and he will donate a nice billion to a new Foundation working to free the world of one of the most dangerous man-made viruses, IP.

While we wait for the miracle to happen, let's smile at MS misfortunes and laugh at the following statement by the A-L's lawyer "We invented it, and everybody else is making money off of it."

Yup, someone invented reading and writing, my dear, and we are all making money out of it. It is called progress.

The conventional wisdom among economists is that introducing or strengthening patents (as required by TRIPS) is very bad for developing countries. Whatever benefit there might be from an increase in domestic innovation is sure to be swamped by the great increase in payments to U.S./European patent holders. A very rough rule of thumb would say that if demand is linear, and introduction of patents causes a switch from perfect competition to complete monopoly, the loss to the developing country would be about 1.5 times the gain to the developed country holding the patent. It turns out that the situation may be considerably worse than this.

The American Economic Review has published a careful study by Chaudhuri, Goldberg and Jia which is a case study of a particular pharmaceutical product in India, Quinolones (a key molecular ingredient of several antibiotics). They estimate that the primary loss will be to consumers and not to domestic pharmaceutical producers. The domestic producers may actually gain - the increased cost of quinolones based drugs will lead consumers to switch to domestic drugs based on different molecules, increasing demand for those products. The effect on consumers depends on the extent to which India regulates the prices of imported drugs: the estimates range from $144-$450 million. By way of contrast, the gain to foreign multinationals is estimated to range from $19.6-$53 million, again depending on how much price regulation there is. That is, the loss to India is estimated to be 7-9 times the gain to the (rich) Western exporters. The reason for this is quite striking: CGJ consider in addition to the effect of increased price, patents will cause the products to become less available and accessible. It turns out that lack of availability induced by patents has very significant costs.

Whatever ones overall view of the patent system, it is hard to defend the portion of the system that taxes transfers from a poor country $7-9 so that a rich country may earn an additional $1.

The American Economic Review version of the paper is not available online, but there is a working paper version available here.

A nice piece on BBC by Michael Geist about the U.S. copyright lobby - not only lobbying to force everbody else to comply with whatever we do in the U.S. - but to impose even more draconian restrictions than we do. Why do I think that if they succeed, they will be back lobbying in Congress to change our laws to comply with the "international standard?"

My favorite bit:

In fact, the majority of the world's population finds itself on the list [of countries that don't comply with international standards], with 23 of the world's 30 most populous countries targeted for criticism (the exceptions are the UK, Germany, Ethiopia, Iran, France, Congo, and Myanmar).

Well nice to know that Ethiopia, Congo, and Myanmar are on the "right" side. Obviously their draconian copyright law has led to a great flowering of music, literature, and movies.