Against Monopoly

defending the right to innovate

IP as Censorship

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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Patent Law, State Courts, and Free Speech: The Case of Troll Tracker

I wrote previously on the Troll Tracker case (see Update on Patent Troll Tracker; Troll Tracker Lands Job Fighting Patent Trolls!). This case concerns defamation suits filed against "Troll Tracker," aka Rick Frenkel, by two Texas lawyers, in the aftermath of Frenkel's identity being revealed, after bounties put up by one of the subjects of his criticism, patent attorney Ray Niro. (It's convoluted, but all you need to know is that Frenkel is the good guy here.)

An updated is provided by Dennis Crouch on Patently-O in Troll Tracker Defamation Lawsuit: Trial Underway. As Crouch notes,

Eric Albritton's defamation lawsuit against Rick Frenkel and his former employer Cisco Systems is underway in the Eastern District of Texas. In my opinion, the case is ridiculous. However, it should serve as a reminder that those vehemently against certain types of speech can often shut-down that speech. Frenkel has indicated that he will not revive his troll tracker blog.
Yet another example of how state law and institutions--including defamation law, state courts themselves and the hideous expense they impose and the injunctive remedies available to judges, and the admixture of IP law--chills free speech.

[StephanKinsella.com cross-post; Mises blog cross-post]

More proof that copyright has become a tool for the attempted suppression of political speech, rather than for providing creative incentives.

Check out this controversy concerning the 'unauthorized' use of a photo which depicts the President smoking when he was a student:


The person who snapped a photo of Obama smoking a cigarette in a manner similar to joint objects that others might use it to make "political" statements.

"They do not have my permission," said Jack, a psychology professor in Minnesota. These photos "are absolutely not to be used in this way. ... I really made a grand effort to do this properly, and I'm very irritated. If I'd wanted these to be used for political purposes, I'd have sold them to Hillary years ago."

Even under the current stifling copyright regime, the claim is problematic. The creators of the poster cropped a significant part of the original photo and put a green tint on it. The only 'creative' element they ultimately copied is the pose supplied by Obama himself - not any creative elements that are inherent to the underlying photograph. There would seem to be a strong case to be made that is an instance of 'transformational' fair use.

Regardless, some of the comments made at the Washington Post sight are sad to read. People are happy to censor political speech under the guise that such speech is somehow "stealing" from other people.

More on the debate over the J.D. Sallinger "Catcher In the Rye" unauthorized sequel.

The full text of the judge's opinion granting a preliminary injunction against the "unauthorized" 'sequel' to Catcher In The Rye (effectively banning its publication in the U.S. even though it can reportedly be found in Europe) can be read in PDF format HERE.

I still don't see how you can square the decision with the NY Times v. U.S. case which sets a remarkably high barrier to overcome a prior restraint of free speech.

[That case can be read HERE.]

Keep in mind, this wasn't a trial on the merits. This was a decision to enjoin the book and ban its publication PENDING a trial on the merits when fair use/parody defenses can be more fully fleshed out.

Some may argue that the NY Times case can be distinguished because it was the government that wanted to ban the speech in question - not a private author. But this distinction doesn't fly in my opinion. Courts have still been very hesitant to enjoin speech in libel, obscenity and even national security contexts. The plaintiffs in libel cases are often private citizens - not government figures. Why the courts choose to ignore their own dictates on the unconstitutionality of prior restraints in the context of IP cases is beyond me.

As Professor Volokh OBSERVES, cases like this force judges to become "literary critics" and make decisions about the law based on their personal aesthetic judgments.

Absolutely insane, and an utter disgrace to the very concept of law....

Scientology vs. the freedom of information

The L.A. Times turns a spotlight on the Church of Scientology's abuse of IP claims in order to try and silence its critics.
No corner of the Web, it appears, is safe for Scientology. Blogger and lawyer Scott Pilutik recently posted a story noting that Scientology was yanking down EBay auctions for used e-meters, the device the church uses for spiritual counseling. EBay allows brand owners -- Louis Vuitton or Rolex, say -- to remove items they believe infringe on their trademark or patent rights. Basically, fakes. But, Pilutik said, the used e-meters being taken down were genuine. Reselling them was no different than putting a for-sale sign on your old Chevy.

"What's actually going on here," he wrote, is that the church is "knowingly alleging intellectual property violations that clearly don't exist."


The current wave of anti-Scientology activity began in January, when a video of Tom Cruise extolling the religion's tech-based approach to enlightenment was leaked onto YouTube, where users holding it up to ridicule copied and recopied it; several sites posted it without hesitation.

It wasn't long before Nick Denton, who as publisher of the blog syndicate Gawker Media had put the video online first, received a legal threat from a law firm representing Scientology, alleging copyright infringement. But Denton refused to take the video down.

"It was an awesome news story," Denton wrote in an e-mail. "If we didn't race to post it up, some other site would have. That, rather than litigation by Scientology, was the fear going through my mind."

The church's whack-a-mole campaign with the Cruise video became a rallying cry for Anonymous, which saw efforts to remove the videos from YouTube as an unwanted incursion into the domain of digital culture, where information and media, copyrighted or no, are often exchanged freely.


Ironically, it is the church's aversion to negative publicity -- and the legal strategy it has long used to prevent it, that has aroused more online ire than any other issue.

The website ChillingEffects .com has posted dozens of cease-and-desist letters sent by Scientology's lawyers to various website and Internet service providers requesting that copyrighted material be removed.

But in the diffuse and often Byzantine world of the Web, some precision legal strikes are more likely to backfire than hit their target. Scientology's use of copyright law appears to be an increasingly losing battle on the Web, said Andrew Bridges, a San Francisco-based intellectual property attorney. "The big question is: Is the copyright serving the purpose of promoting science and the useful arts, or is the purpose essentially the stifling of criticism?"

Read the whole article.

Chinese DVD pirates promote freedom

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!

The Boston Tea Party Copyright Revolt Over At DIGG

In the interest of neutral reportage, I would like to ask the following:

Do we wish to live in a society where it is unlawful to simply type out the following sequence of letters and numbers?

09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0

I suspect not. But I'd welcome other thoughts in the interests of objective journalism.

[Boing-Boing has more.]

Coke Censors Art

The Coca-Cola company manages to supress an entire film because they didn't 'authorize' an image of a Coke can in it.

As the main character says, "My God, what a testimonial!"...

Orwell's Copyright Police State Rears Its Ugly Head Again [I called it. I must be psychic.]

Not to toot my own horn here, but...well, ok...I'll toot it.

Last week, I was the only one that I knew of to bring up the copyright implications of the great Hillary Clinton/Apple/Orwell mash-up ad that had made its rounds across the Internet. I pointed out that there was an obvious tension between core political speech and Apple's potential claims of copyright.

I ended the post with these thoughts -

"This is merely the analysis in relation to a potential copyright claim by Apple. There is also the analysis for copyright infringement by the George Orwell estate. After all, the Hillary Clinton/Apple ad is also still a derivative work of 1984, right? Shouldn't Orwell's estate have a say if this ad should be able to exist or not? I don't think it should. But copyright maximalists no doubt feel otherwise."

Well what do ya know? It turns out that people who licensed works from the Orwell estate have finally noticed and decided to start some legal threats over copyright violations.

Glenn Reynolds is wrong - This isn't "a dumb intellectual property lawsuit". It is instead a dumb intellectual property LEGAL SCHEME that we have - one in desperate need of underlying reform. We won't have a solution to this problem until people understand the difference here. The quality of lawsuits are mostly dictated by the quality of the underlying laws.

One claim from the threat strikes me as particularly bizarre - the notion that "the Orwell novel is still under copyright, at least until the year 2044."

Orwell died in 1950. Even under the ridiculously long term of "life plus 70 years" that has been retroactively applied to copyright lengths, that would mean that 1984 becomes public domain in 2020 at the latest. Where do those people get off claiming copyright until 2044? Am I missing something in my math here??

[Update: My math wasn't wrong, but my analysis might have been. If the Orwell people are claiming that the work was published in the U.S. before 1963 AND had the copyright renewed, then it extends for 95 years from the initial date of publication. So if it was published in U.S. in 1949, that would make the date of 2044 correct. It's scandalous and morally outrageous - but still legally correct.]

If anyone wants to enjoy Orwell's work, I encourage them to read this post: Orwell's Copyright Police State - Reloaded.

Supplemental question: Is the company that purchased the "Orwell rights" in this instance acting on their own in issuing legal threats? Or were they contacted and encouraged by Barack Obama's political adversaries to try and suppress the anti-Clinton ad on their behalf?? If the latter occurred, then what are implications for copyright being used as a direct weapon to suppress political speech? Ok class, please discuss...

Piracy As A Tool Against Censorship And Authoritarian Control

Gong Li is arguably the most successful Chinese actress working in Hollywood today. I would definitely recommend that you check her out in the vastly underrated Miami Vice film from last year.

In their Dec.06/Jan/07 issue, Venice Magazine interviewed Li on a wide variety of subjects. In addition to describing the current state of competition in the Chinese theater industry, part of the interview was a revealing look into how media piracy can be used as an effective tool against government censorship.

Venice: Have you ever been censored in your work, your acting?

Gong Li: Some of my films have been censored and are not allowed to be shown in China. Raise the Red Lantern was probably the biggest one. Curse of the Golden Flower is ok and so is Miami Vice. Some scenes that are in the American version have been cut out of the Chinese version. But things are more open now in China than they used to be.

Venice: How does the whole censorship process work?

Gong Li: Things are different there, so I'm not entirely sure about the details but this is how I think it all works. First, a script is written. If the script is passed, then the film is made. Upon completion, the film is screened. What exactly happened on Raise the Red Lantern I'm not so sure, but it was back in the 90's when things were much more strict. Apparently, they showed the film a couple of times and somewhere, somebody, a certain somebody, raised some doubts about it and so the film was pulled. But it's all part of the system.

Venice: How do you believe American films are different from Chinese films?

Gong Li: With American film there is a much broader variety of what you can make and what can be seen. Because of the aforementioned script review system in China, it limits the films you can make quite a bit.

Venice: How are films seen in China? I know there are big cities which are modern with movie theaters, but what about the interior of the country, which is quite rural. How are films effectively distributed to the public?

Gong Li: In the big cities on the East Coast there are many theaters. Specifically, there are two kinds: National theaters that are run by government agencies, and privately run theatres. The privately run theaters show a wider variety of films. They are also much more luxurious, cleaner, and have digital projection capabilities; everything you have here in American theaters. But they tend to be much more expensive. Towards the western part of China, there tend to be fewer private and more National theaters, so the movies might be a little older and the range of films may be a bit narrower.

The bigger problem in China is video piracy. People get pirated videos because they are cheaper and easier to find than going to the movies. So people stay at home and watch a pirated DVD instead of going to the movie theater. In a way, this really shows that Chinese people truly love watching movies. If there were fewer pirated videos available then people obviously wouldn't see as many movies.

Venice: There's no way the government can censor pirated videos.

Gong Li: You're right You can't censor pirated videos. You can censor the cut versions that are shown in theaters, but the uncensored videos are still out there. So again, the problem is the pirated video, because if you want to do real censorship control, you have to censor the pirated video.

Venice: So then an argument could be made that pirated videos in China are a good thing. That the pirated videos are opening Chinese culture up to the rest of the world?

Gong Li: [laughs] Right, because if you censor a film or cut some of it, people are still going to see it all on the pirated video. A paradox is created by the censorship and banning. They think, why are people objecting? What is wrong with it? It makes them want to see it even more. So this really is a paradox; it has a way of increasing the pirate video market due to the curiosity.

Here in the U.S., piracy can also be looked upon as the current form of our Boston Tea Party as applied to the electronic age. While there is no direct government censorship here akin to the Chinese model, there has certainly been an overreach of copyright schemes that adversely affect free speech.

One must consider the role piracy has to offer as a legitimate form of social protest in certain areas of the current debate over copyright restrictions. [Though naturally, I don't use the word "legitimate" here in the context of "legality", but rather "moral" legitimacy along the lines of the Boston Tea Party - an act that was every bit as unlawful as media piracy.]

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