The Washington Post carries an account of a curious use of copyright to suppress publication of the dissident views on human rights which ended the career of British Ambassador to Uzbekistan Craig Murray (link here). The money quote from Murray: "I also wanted to publish a large number of documents to corroborate my story -- including my official dispatches from Tashkent and the government's demands that I change the text -- but when the government threatened legal action, I removed the documents from my book. I have continued to receive threatening letters; when Foreign Office lawyers argued that the government still retains copyright over all documents produced by the government (even if obtained through Freedom of Information laws), I had to remove them from my Web site." (The documents are said to be available on other websites, presumably outside Britain.)

From the Associated Press today:

Every day, millions of students taking online college courses act in much the same way as their bricks-and-mortar counterparts. After logging on, they move from course to course and do things like submit work in virtual drop boxes and view posted grades - all from a program running on a PC.

It may seem self-evident that virtual classrooms should closely resemble real ones. But a major education software company contends it wasn't always so obvious. And now, in a move that has shaken up the e-learning community, Blackboard Inc. has been awarded a patent establishing its claims to some of the basic features of the software that powers online education.

The patent, awarded to the Washington-based company in January but announced last month, has prompted an angry backlash from the academic computing community, which is fighting back in techie fashion - through online petitions and in a sprawling entry for the online dictionary Wikipedia that helps make its case.

Critics say the patent claims nothing less than Blackboard's ownership of the very idea of e-learning. If allowed to stand, they say, it could quash the cooperation between academia and the private sector that has characterized e-learning for years and explains why virtual classrooms are so much better than they used to be.

Read the rest here.

Apple has agreed to pay $100 million to Singapore's Creative Technology and allow it to supply accessories for the iPod to settle a software patent dispute over the interface that allows iPod users to select a song, album or track by navigating a succession of menus.

Both companies sought patents on the software, but Apple's was denied, while Creative's was granted. Creative then sued Apple for infringement and to stop the import of iPods which are manufactured in China ( see the NY Times article here).

This settlement again challenges the whole idea of software patents. Who pays? The consumer. Microsoft does not need a patent on Windows to keep out competition. It protects its technology by secrecy. But what is original and unique about a set of menus in simple, perhaps obvious processes using a set of related menus? Why then could Creative go home with the profit? Probably because Apple was concerned that its iPod source would be blocked and its highly profitable sales of music downloads for the iPod, said to be its biggest source of profits, jeopardized. And that its own software patents would be threatened if they generally came under attack. Remember,as well, "the International Trade Commission was conducting an inquiry into the dispute but this is now expected to end."

Via Fred Luk an interesting article in the NY Times By Bob Tedeschi about guitarists sharing tips about how to play songs.

In the last few months, trade groups representing music publishers have used the threat of copyright lawsuits to shut down guitar tablature sites, where users exchange tips on how to play songs like "Knockin' on Heaven's Door," "Highway to Hell" and thousands of others.

An industry at war with its customers isn't long for this world.

A Wall Street Journal ($$) editorial today warns that an obscure section of the old Smoot-Hawley tariff permits American companies to strike against their competitors by having the government block imports that allegedly infringe their patents. The Journal sees a threat to the mobile networks that depend on imported telephones. Here are some excerpts:

The peril comes from the International Trade Commission (ITC), an obscure federal agency that typically deals with trade but suddenly is telecom central. There are currently cases before the ITC affecting virtually every mobile-phone operator in the country and most of the largest handset makers in the world. Ericsson and Samsung have filed complaints against each other, and Qualcomm has sued Nokia. Broadcom, a chipmaker that owns patents for mobile-phone technology, has filed against Qualcomm, which supplies chips used in new phones sold by Verizon and Sprint.

All of these companies are seeking an edge against their rivals via "exclusion orders," which would ban the import of products said to violate U.S. patent (yes, patent) law. Depending on how the cases are ultimately decided, millions of cell phones could be barred from the U.S. market at a cost to the phone makers and network operators of billions of dollars.

The ITC was established in 1916 as the U.S. Tariff Commission. Smoot-Hawley gave it the authority to review claims of "unfair trade practices" based on patent infringement. If a company with U.S. operations believes a competitor is importing a product that infringes on its intellectual property, it can bring a Section 337 claim to the ITC. An administrative law judge then hears the case, and he can issue an exclusion order barring imports of the infringing product for the duration of the patent. The order is also subject to the review and approval by the six-member, bipartisan ITC board.

Incredibly, all of this takes place separately from normal judicial proceedings on patent infringement or validity. Most of the cell-phone cases mentioned above are also in court on patent-infringement grounds, but these cases can take years and are subject to lengthy appeals. The ITC tries to discharge Section 337 cases in about a year, and will not wait for the courts. Once the ITC votes on the judge's order, there is only one avenue of appeal: The President has 60 days to override the ITC's order. If he doesn't act, the import ban takes effect....

The big picture here is that the ITC has emerged as the patent bar's venue of choice to evade this year's Supreme Court decision in eBay. That ruling raised the bar on permanent injunctions in patent-infringement cases. But the ITC isn't subject to eBay, remarkably enough, so lawyers and patent holders have descended on the agency for a quick protectionist hit.

Oh, what a tangled web we weave....

The Economist has a piece on a generic pharmaceutical maker challenging the patent holder. (linked here) Apotex, a Canadian generic firm, was coming out with its version of Plavix, a lucrative blood thinner. Sanofi-Aventis held the patent supposedly good till 2012 and marketed in the US through Bristol-Myers Squibb. Perhaps fearing the patent wouldn't hold up, Apotex was bought off until state Attorneys-General intervened, ending the deal, but still leading to a federal criminal investigation. Apotex went ahead and Sanofi responded by cutting the price of regular Plavix below the generic. The blessings of competition.

Richard Ekman, president of the Council of Independent Colleges, has an interesting op-ed piece in the Washington Post today on the arguments for universities supporting Google's digitizing all the world's books.
(linked here) Google would make a vast amount of printed material accessible to search and to limited use by students and scholars.

The article also notes that the universities have a conflict of interest in that they have their own publishing businesses. Faculties also have a conflict, to the extent that they write and publish texts. But it is in the overall public interest to make all printed material accessible.

It cites one helpful development: "Project Muse, begun in 1993 as a pioneering joint effort of the Johns Hopkins University Press and the university's Milton S. Eisenhower Library, makes available electronic "bundles" of current issues of journals to students and teachers in scattered locations. And JSTOR -- a coalition of journal publishers and libraries formed in the mid-1990s to create a reliable online collection of hundreds of older, little-used scholarly journals -- has brought these specialized works back into common use."

I wonder if there is room here for two kinds of copyright? One would protect the large-sale books, their authors and publishers. The other with small print runs would allow full access to digitized versions, including the right to download, not simply the right to limited search and quotation. The notion here is to protect authors who write to live, but prevent someone appropriating the uncopyrighted for personal profit. I think we need a good lawyer.

Via John Bennett. A nice post on fair use over on lifehacker. The upshot: screenshots are still fair use but the future is uncertain.

Walt Byers posted this to the pen-l mailing list.

The RIAA sues a miscreant for illegal downloading. The defendant dies. The compassionate RIAA asks the court to give the family 60 days to grieve, before it lowers the hammer.

Not too many posts recently from either Michele (well never from him) or me. We've been giving talks in Australia. We talked about IP at the Macrodynamic Conference at the Australia National University in Canberra. I think we raised some questions in the minds of the audience.

I gave a general audience talk on IP at the Treasury. Australia is famously sympathetic to monopolies. Much anti-trust that would be in the Justice Department in the U.S. is in Treasury in Australia. It was quite a pleasure to meet people who not only meant well, but have their heads screwed on straight. There is always a temptation (and perhaps a paper to be written?) for a government to respond to changes in economic circumstances by "doing something" - generally something stupid. It is fortunate for Australia that they have some public servants who understand that generally the best approach is for government to stay out of the way.

I talked also at Melbourne Business School. I wish I could say that my anti-IP talk was the highlight of the day, but I was paired with Eric Von Hippel of MIT whose talk on user driven innovation was the highlight of the day. The short version: most innovation isn't done by business firms at all, it is done by consumers who improve/invent products for their own use. When it turns out the invention is generally useful, often the firms imitate them. His website is highly recommended.

Finally, I'd be remiss not to draw attention to Josh Gans and his excellent website Core Economics. Aside from some comments on IP and Michele's and my work, there is a great deal of excellent stuff. His post on ownership of the last mile should be read by everyone interested in the internet.