Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.

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Copyright and Laurel L. Russwurm

Read her story on how it has hurt her here:


Despite What So-Called Legal Experts Tell You, Copyright Protects IDEAS As Well As Expression

Rhianna and Def Jam Music must stand trial for being inspired by David LaChappelle's ideas regarding photographic images.

They didn't copy a damned thing. They were only inspired by someone else's work which influenced they way in which they created a new work - the same way all creation happens on some level.

For that, they must now stand trial.

The court will try and tell you that the Defendants here have "copied" what amounts to "fixed expression" and that copyright doesn't cover "ideas" - but please scroll down to pages 31-34 of the PDF file of the decision below and then try to say the following to yourself with a straight face: "Copyright doesn't protect ideas, only the fixed expression of ideas."

This decision is an absolute farce and outrage. But what it is not is an aberration. It is instead an accurate and standard application of what our current monstrous copyright laws have become, and why anyone who cares about free speech, civil rights and basic human freedoms must now support serious copyright reform in order to roll back its scope.

Read and see for yourself just how far copyright goes in placing a stranglehold over ideas here:


Aaron Swartz Indictment Leading People To Upload JSTOR Research To File Sharing Sites

A Boston Tea Party for the Digital Age anyone?

Mike Masnick at Techdirt points to the blowback over JSTOR's creeping attempts to monopolize the distribution of academic works.

Check out his comments and links to the torrent of free public domain research that was formerly hidden behind JSTOR's pay walls:


Greg Maxwell's announcement is worth reprinting in its entirety here:


This archive contains 18,592 scientific publications totaling 33GiB, all from Philosophical Transactions of the Royal Society and which should be available to everyone at no cost, but most have previously only been made available at high prices through paywall gatekeepers like JSTOR.

Limited access to the documents here is typically sold for $19 USD per article, though some of the older ones are available as cheaplyas $8. Purchasing access to this collection one article at a time would cost hundreds of thousands of dollars.

Also included is the basic factual metadata allowing you to locate works by title, author, or publication date, and a checksum file to allow you to check for corruption.

ef8c02959e947d7f4e4699f399ade838431692d972661f145b782c2fa3ebcc6a sha256sum.txt

I've had these files for a long time, but I've been afraid that if I published them I would be subject to unjust legal harassment by those who profit from controlling access to these works.

I now feel that I've been making the wrong decision.

On July 19th 2011, Aaron Swartz was criminally charged by the US Attorney General's office for, effectively, downloading too many academic papers from JSTOR.

Academic publishing is an odd system -- the authors are not paid for their writing, nor are the peer reviewers (they're just more unpaid academics), and in some fields even the journal editors are unpaid. Sometimes the authors must even pay the publishers.

And yet scientific publications are some of the most outrageously expensive pieces of literature you can buy. In the past, the high access fees supported the costly mechanical reproduction of niche paper journals, but online distribution has mostly made this function obsolete.

As far as I can tell, the money paid for access today serves little significant purpose except to perpetuate dead business models. The "publish or perish" pressure in academia gives the authors an impossibly weak negotiating position, and the existing system has enormous inertia.

Those with the most power to change the system--the long-tenured luminary scholars whose works give legitimacy and prestige to the journals, rather than the other way around--are the least impacted by its failures. They are supported by institutions who invisibly provide access to all of the resources they need. And as the journals depend on them, they may ask for alterations to the standard contract without risking their career on the loss of a publication offer. Many don't even realize the extent to which academic work is inaccessible to the general public, nor do they realize what sort of work is being done outside universities that would benefit by it.

Large publishers are now able to purchase the political clout needed to abuse the narrow commercial scope of copyright protection, extending it to completely inapplicable areas: slavish reproductions of historic documents and art, for example, and exploiting the labors of unpaid scientists. They're even able to make the taxpayers pay for their attacks on free society by pursuing criminal prosecution (copyright has classically been a civil matter) and by burdening public institutions with outrageous subscription fees.

Copyright is a legal fiction representing a narrow compromise: we give up some of our natural right to exchange information in exchange for creating an economic incentive to author, so that we may all enjoy more works. When publishers abuse the system to prop up their existence, when they misrepresent the extent of copyright coverage, when they use threats of frivolous litigation to suppress the dissemination of publicly owned works, they are stealing from everyone else.

Several years ago I came into possession, through rather boring and lawful means, of a large collection of JSTOR documents.

These particular documents are the historic back archives of the Philosophical Transactions of the Royal Society--a prestigious scientific journal with a history extending back to the 1600s.

The portion of the collection included in this archive, ones published prior to 1923 and therefore obviously in the public domain, total some 18,592 papers and 33 gigabytes of data.

The documents are part of the shared heritage of all mankind, and are rightfully in the public domain, but they are not available freely. Instead the articles are available at $19 each--for one month's viewing, by one person, on one computer. It's a steal. From you.

When I received these documents I had grand plans of uploading them to Wikipedia's sister site for reference works, Wikisource--where they could be tightly interlinked with Wikipedia, providing interesting historical context to the encyclopedia articles. For example, Uranus was discovered in 1781 by William Herschel; why not take a look at the paper where he originally disclosed his discovery? (Or one of the several follow on publications about its satellites, or the dozens of other papers he authored?)

But I soon found the reality of the situation to be less than appealing: publishing the documents freely was likely to bring frivolous litigation from the publishers.

As in many other cases, I could expect them to claim that their slavish reproduction--scanning the documents--created a new copyright interest. Or that distributing the documents complete with the trivial watermarks they added constituted unlawful copying of that mark. They might even pursue strawman criminal charges claiming that whoever obtained the files must have violated some kind of anti-hacking laws.

In my discreet inquiry, I was unable to find anyone willing to cover the potentially unbounded legal costs I risked, even though the only unlawful action here is the fraudulent misuse of copyright by JSTOR and the Royal Society to withhold access from the public to that which is legally and morally everyone's property.

In the meantime, and to great fanfare as part of their 350th anniversary, the RSOL opened up "free" access to their historic archives--but "free" only meant "with many odious terms", and access was limited to about 100 articles.

All too often journals, galleries, and museums are becoming not disseminators of knowledge--as their lofty mission statements suggest--but censors of knowledge, because censoring is the one thing they do better than the Internet does. Stewardship and curation are valuable functions, but their value is negative when there is only one steward and one curator, whose judgment reigns supreme as the final word on what everyone else sees and knows. If their recommendations have value they can be heeded without the coercive abuse of copyright to silence competition.

The liberal dissemination of knowledge is essential to scientific inquiry. More than in any other area, the application of restrictive copyright is inappropriate for academic works: there is no sticky question of how to pay authors or reviewers, as the publishers are already not paying them. And unlike 'mere' works of entertainment, liberal access to scientific work impacts the well-being of all mankind. Our continued survival may even depend on it.

If I can remove even one dollar of ill-gained income from a poisonous industry which acts to suppress scientific and historic understanding, then whatever personal cost I suffer will be justified--it will be one less dollar spent in the war against knowledge. One less dollar spent lobbying for laws that make downloading too many scientific papers a crime.

I had considered releasing this collection anonymously, but others pointed out that the obviously overzealous prosecutors of Aaron Swartz would probably accuse him of it and add it to their growing list of ridiculous charges. This didn't sit well with my conscience, and I generally believe that anything worth doing is worth attaching your name to.

I'm interested in hearing about any enjoyable discoveries or even useful applications which come of this archive.

- ---- Greg Maxwell - July 20th 2011 gmaxwell@gmail.com Bitcoin: 14csFEJHk3SYbkBmajyJ3ktpsd2TmwDEBb

-----BEGIN PGP SIGNATURE----- Version: GnuPG v1.4.11 (GNU/Linux)


Direct link to Maxwell's file and announcement here:


Trial Looms for Price-Fixing in Digital Music

Via CourtHouseNews.com:

MANHATTAN (CN) - Major record labels must face a consolidated class action lawsuit claiming they fixed prices on digital music, a federal judge ruled.

The defendants include Bertelsmann, Sony BMG Music Entertainment, Sony Corporation of America, Capitol Records (dba EMI Music North America), EMI Group North America, Capitol-EMI Music, Virgin Records America, Time Warner, UMG Recordings and Warner Music Group, which allegedly control 80 percent of the digital music in the United States.

Consumers claim in the proposed class action that all of the labels signed distribution agreements with two joint-venture entities called MusicNet and Pressplay, through which they allegedly conspired to fix the price, terms of sale and restrictions on digital music.

Each licensing agreement allegedly included publicly hidden Most Favored Nation clauses, guaranteeing that one licensor would receive at least equivalent licensing terms as another licensor. In effect, these agreements set wholesale price floor at 70 cents per song for Internet music, increasing prices as the cost to distribute Internet music fell to essentially zero, consumer class says.

More details here:


A copy of the ruling itself can be found here:


Perhaps He Is Actually Ahead of the Curve In His Area of Study, And Its The Law That Needs To Catch Up.

In my mind, "ethics" and "law abiding" are not always synonymous. Witness this:

BOSTON (AP) -- A Harvard University fellow studying ethics has been accused of using the Massachusetts Institute of Technology's computer network to steal nearly 5 million academic articles.

A federal indictment released Tuesday accused 24-year-old Aaron Swartz of stealing the documents from JSTOR, a subscription service that offers digitized copies of articles from more than 1,000 academic journals. ... Prosecutors say he intended to distribute the articles on file-sharing websites.

Because Lord knows that if he got away with this, the incentive to write academic articles would completely collapse.

Shouldn't the AP put the word "steal" in quotes here? Amazing how the whole "theft" lingo false meme has so causally pervaded discussions of IP. Might I suggest he has been accused of "liberating information without authorization"?

AP copy editors, take note.

This guy faces 35 years in prison.

Read the story here:


Tide turns for Federal Circuit in patent cases for the 2010-11 Court Term

Columbia Law Professor Ronald Mann has a round-up of how the U.S. Supreme Court has looked upon the lower Federal Circuit's point-of-view when it comes to recent patent law decisions.

It is well worth a read here:


Blowing Dry

'Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters' fighting poses, there is no plausible basis for a reasonable jury to find that the parties' respective expressions of the concept of a...crime-fighting hairdresser are substantially similar".

So holds the Second Circuit Court of Appeals in affirming the dismissal of a copyright claim here [PDF]:

Cabell v. Sony Pictures

Appeals Court strikes down "hot news" ruling which had barred publications from Wall St. news site

The 2nd Circuit Court of Appeals ruled against Wall Street banks (and a lower court) in holding that a financial news service did not misappropriate their analyst research for its website.

The Appeals Court said the lawsuit against Theflyonthewall.com under New York "misappropriation" statutes was preempted by federal copyright law.

Financial institutions argued that Theflyonthewall.com was getting a "free ride" by "misappropriating research", including stock news, which cost them profits.

Theflyonthewall.com countered that it had a First Amendment right to publish before news goes stale, and that it got much of its information from public sources or from talking with traders and others in the Wall Street area.

The Appeals Court concluded: "We conclude that in this case, a Firm's ability to make news -- by issuing a Recommendation that is likely to affect the market price of a security -- does not give rise to a right for it to control who breaks that news and how."

Because of some legal gymnastics and an earlier ruling that Theflyonthewall.com had "waived" its First Amendment and fair use defenses, the Appeals Court did not directly rule on the First Amendment/fair use argument, but sections of the latest decision seem to suggest that court would have been sympathetic to it.

For instance, the Appeals Court wrote:

As the INS Court explained, long before it would have occurred to the Court to cite the First Amendment for the proposition:

"[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution, when they empowered Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Const., 8 Art I, 8, par. 8), intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it."
We do not perceive a meaningful difference between (a) Fly's taking material that a Firm has created (not "acquired") as the result of organization and the expenditure of labor, skill, and money, and which is (presumably) salable by a Firm for money, and selling it by ascribing the material to its creator Firm and author (not selling it as Fly's own), and (b) what appears to be unexceptional and easily recognized behavior by members of the traditional news media -- to report on, say, winners of Tony Awards or, indeed, scores of NBA games with proper attribution of the material to its creator.

Reuters has more here:


Full court opinion here: http://www.ca2.uscourts.gov/decisions/isysquery/61c431d7-9894-48c3-8222-dda6c1b74742/2/doc/10-1372_both.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/61c431d7-9894-48c3-8222-dda6c1b74742/2/hilite/

Supreme Court Agrees To Once Again Tackle The Issue of What Can be Patentable

In what could be interpreted as a tacit admission that their previous ruling in Bilski last year was about as clear as mud, the Supreme Court has decided to take up another case concerning the validity of a patent claim "that covers observed correlations between blood test results and patient health, so that the claim effectively preempts all uses of the naturally occurring correlations, simply because well-known methods used to administer prescription drugs and test blood may involve 'transformations' of body chemistry."

This is another case that will be closely watched.

The full case name: Mayo Collaborative Services v. Prometheus Laboratories, Inc.

Background details of the case here:


More from the Patently-O blog here:


Its not just the corporations with a vested interest in the 'Protect IP Act'

Here is the text of a message that was recently sent to the entire membership of the American Federation of Television and Radio Artists (AFTRA) -

Dear AFTRA Member:

I'm writing to you today both as the National President of AFTRA and as an individual who, just like you, has dedicated my life to the art, craft and business of entertainment and media. I am a professional performer who earns my living and health and retirement benefits by acting, performing voiceover work, doing narration for industrials and working on other types of projects. Like for many of you, entertainment and media is my career - it is my livelihood - and right now, my career and my livelihood are under attack, and so are yours.

The digital theft of movies, music, videogames, audiobooks and television shows - what has often been called "piracy" - is the biggest threat the entertainment community has ever faced, and 2.4 million of us who make a living in entertainment need to join together to fight back.

The term "piracy" doesn't do justice to the problem; this is THEFT on a massive scale. Movies, music, videogames, audiobooks and television shows are illegally downloaded or streamed at least 500,000 times every day. Millions of counterfeit DVDs are sold each year. International criminal operations masquerade as legitimate sites, appear in search engines and even accept credit card payments, confusing and siphoning off our audiences. These thieves steal money out of our pockets and deprive us of the earnings we need to qualify for critical health insurance and retirement benefits. In fact, digital theft is so serious that it is one of the crimes investigated by U.S. Immigrations and Custom Enforcement, along with human trafficking, money laundering, weapons smuggling and narcotics.

The impact on each one of us is real. The digital theft of movies, music, videogames, audiobooks and television shows reduces our residuals and royalty payments, as well as our retirement and health benefits, and more than 140,000 entertainment-related jobs have already been lost to content theft. Every film, sound recording, videogame, audiobook and television show that is stolen represents a terrible loss to all of the people who created it, reduces funds available for future work and reduces creative and employment opportunities for AFTRA members and everyone else works on a production or sound recording.

Almost two years ago now, Delegates to the 2009 AFTRA National Convention in Chicago unanimously passed a resolution making the fight against digital theft our highest legislative priority. Since then, AFTRA has worked with DGA, IATSE, SAG, MPAA, and from time to time also AFM and the Teamsters to help raise awareness among lawmakers in Washington, DC, about the real danger this threat presents to our livelihoods and to the American economy. We have also been working closely with Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator appointed by President Obama in September 2009, to help her understand just how grave this threat is to the United States. We must devleop sound regulatory and public policies to protect creative content and ensure that the people and industries that produce the uniquely American product continue to thrive.

We are making good headway in D.C. Latest proof of our success lies in the bipartisan support for new legislation introduced on May 26, 2011: the Protect IP (Intellectual Property) Act was unanimously passed out of the Senate Judiciary Committee. The PROTECT IP Act is critical to efforts to aggressively combat the proliferation of foreign "rogue websites" that steal U.S.-produced content and profit from it by illegally selling it to the public.

But, remember: this is just a step forward in what will be a long battle against criminals who are stealing our work. To be successful, we need more than just strong laws: we need a fully engaged community of entertainment and media professionals - AFTRA members like you - to stand up, make our voices heard and do our part to stop digital theft.

We pour our hearts into making the movies, music, videogames, audiobooks and television shows that the world loves. Entertainment is one of America's most important economic engines. The theft of creative content must be stopped, so we are redoubling our efforts.

AFTRA is on the battle lines against digital theft with our sister unions, as well as producers and other stakeholders in the media and entertainment industries. This is bigger than any single group alone. So in the coming months, you'll be getting more information about digital theft and its impact on our jobs and creativity. If you would like to get involved or learn more about ways you can help protect our future, please email ProtectMyWork@aftra.com or call and we will contact you with information about how you can help in this effort.

Entertainment and media is changing fast, and we are all working to find new ways to share our creativity with audiences here at home and around the world. Please watch for regular updates and information about what AFTRA is doing, and what you can do to join the fight.


Roberta Reardon

National President AFTRA, AFL-CIO

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