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Against Monopoly

defending the right to innovate

IP as a Joke

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Copyright Reincarnation

From my comment on this thread:

Re the issue of the prices charged for things like apples etc.--see my post Imagining the Fate of Copyright in a Future World.

Imagine 1000 years from now, if we still have these ridiculous IP laws .... Say you need some music--to play in your department store's elevators, to go with a scene in a movie, etc.--you can choose between an almost infinite supply of older, public domain work, or pay for a new tune that is still under copyright. That will force new works' price to be almost zero.

One concern I have is that the IP socialists would at that point come up with a new IP right--basically a renewal of copyright held by someone who "rediscovers" older work forgotten in the almost infinite pile of public domain work. Imagine living in a world where Michael Jackson's work, or the music of the 70s, had been basically forgotten and lost, a needle in a haystack, surpassed by all the music over the ensuing centuries ... then some DJ starts playing it, people rediscover it anew.. shouldn't he get credit for this? After all, it takes a lot of work to loook thru all the old stuff and find "what to recommend" (a lot of IP law is based on the Marxian labor theory of value, the idea that you should be rewarded if you labor on something, as in the old "sweat of the brow" copyright law doctrine). Shouldn't the discoverer be rewarded for this? After all, if he's not, you consumers would never have heard of Michael Jackson, would not have the pleasure of knowing what (free) tracks to play at your party. What's the harm of awarding the DJ a monopoly? After all, you would never have found that needle in an infinite haystack, so no one is worse off, and everyone is better off. Copyright can never die; it only gets reincarnated. O brave new world! That has such laws in't!

Marx Brothers vs. Galambos

Well, not exactly, but this delightful anecdote by Taki has a quasi-Galambosian ring to it (Galambos, you may recall, was the hyper-IP libertarian fringe personality from "California").
When the Marx Brothers announced in 1946 that their upcoming film was called A Night in Casablanca, Warner Bros threatened to sue for breach of copyright. Warner had produced the great hit "Casablanca" four years earlier, and insisted the funny men were trying to cash in on it. But Groucho was no slouch. He had his lawyer threaten Warner Brothers with breach of copyright for using the word brothers. The Marx boys won, as they were brothers before the Warners had formed the company. A Night in Casablanca turned out also to be a great hit.

Supreme Skepticism Toward Method Patents

As I mentioned in Radical Patent Reform Is Not on the Way, in in In re Bilski, the Court of Appeals for the Federal Circuit (CAFC) modified previous holdings regarding the patentability of software or business-method patents in upholding the rejection of patent claims involving a method of hedging risks in commodities trading. The case was appealed to the Supreme Court and oral arguments were heard earlier this month. This entire area of patent law is very arcane, but the main issues and the oral arguments are explained very well by the heroic IP-abuse reporter Joe Mullin in Bilski v. Kappos Oral Arguments: Supreme Skepticism Toward Method Patents.

Take a look at Mullins' discussion of the oral arguments--it's fascinating seeing the Justices grapple with the absurdity of patent law. A few choice excerpts below.

I suspect the Court will choke back a bit on software and business method patents--but not too much, as I argued in Radical Patent Reform Is Not on the Way. One reason is that although the law is, as the Justices seem to be realizing, completely unjust and absurd, it is the law. Or, as Bilski's lawyer said, "That's our system ... We do grant exclusive rights in exchange for disclosure." Yes, we do. And when you implement such an abomination, that's what you get: absurd, unjust results, such as granting monopolies on "fundamental ways of conducting business or organizing human behavior" (and yes, patents are monopolies, despite the shrill denials by patent shills and other pro-monopolists).

Excerpts from oral arguments:

Across the board, the justices indicated a deep skepticism toward the invention described in the patent application at issue, which was rejected by the U.S. Patent and Trademark Office and describes a method for trading commodities. Some of the justices went even further expressing both a fair amount of disdain for the idea of granting broad "method" patents and a concern that ruling in favor of the petitioners would lead to patent grants on fundamental ways of conducting business or organizing human behavior. ...

Based on the justices' attitude during the arguments, it not only seems extremely unlikely that Bernard Bilski will ever get the patent at issue, it also seems clear that the court is poised to establish a new, and most likely stricter, test of what is patent eligible.

One after another, the justices prodded Bilski's lawyer, Michael Jakes of Finnegan Henderson, Farabow, Garrett & Dunner, in search of some idea about where to draw the line. The thrust of the questions: Does absolutely everything fall within the domain of the U.S. patent system?

"So, an estate plan?" asked Justice Ruth Bader Ginsburg. "A tax avoidance method? How to resist a corporate takeover? All of these are patentable?"

"They are eligible for patenting under section 101," replied Jakes, referring to the section of the 1952 patent statute that governs what is patent-eligible subject matter.

... "Your argument is that anything that helps business succeed is patentable," Breyer said. Would the framers of the Constitution, he asked, really have wanted everyone with a new idea to run to Washington to get a patent, in the process enabling them to "stop the wheels of progress" unless competitors got permission?

"Why not patent a method of speed dating?" Justice Sonia Sotomayor asked.

There are a few, limited areas, Jakes said, where patent protection isn't available; he pointed to the fine arts as one example. Otherwise, he argued, patents encourage people to innovate, and it is via the patent system that they disclose their new creations to the public.

... Justice Sotomayor took issue with Jakes's suggestion that patents are always a manifestation of innovation.

"A patent limits the free flow of information," she said. "It requires licensing. You can't argue your position is enhancing the free flow of information."

Jakes replied: "It does, because of the disclosure requirement."

"Even though the public can't use [the patented invention]," noted Scalia.

"That's our system," said Jakes. "We do grant exclusive rights in exchange for disclosure."

Time and again, Jakes refused to draw a line that ruled anything off-limits to the patent regime. His position left the justices questioning whether he was advocating the "ownership" of basic human activities.

"Let's take training horses," said Justice Antonin Scalia. "Don't you think that some people, horse whisperers or others, had some ... insights into the best way to train horses? Why didn't anybody patent those things?"

"I think our economy was based on industrial processes," responded Jakes.

"It was based on horses, for Pete's sake!" said Scalia. "I would really have thought somebody would have patented that."

... Chief Justice Roberts pushed back on an inconsistency in Stewart's briefing of the case. On the one hand, he said, the government claims Bilski's method just describes a way of doing business, and therefore isn't patentable but then posits that a computer with an "interactive website" doing the same thing might be. "That's like saying if you use a typewriter to type out the process, then it's patentable," said Roberts.

If the website scheme was part of a computer program, Stewart said, "the computer would be at the heart of the innovation."

"No, no," said Roberts. "That's just saying instead of looking in the Yellow Pages, you look on a computer."

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

Professors Claiming Copyright Over Their Lectures: or, The Increasingly Evident Injustice of IP

See the great post from Mike Masnick, Professors Claiming Copyright Over Their Lectures, about the ridiculous case of some Harvard Professors claiming copyright in their lectures, jeopardizing the rights of students to take notes (this is so opposite the approach of the heroic MIT). I mused in an email, "what idiot can ever think this is libertarian," and my compadre Manuel Lora replied, "it's tricky. We've been told that we should get the fruits of our labor for hundreds of years. IP opposition goes against the grain."

Great point. I think this has been a "dark horse" issue for so long for a few reasons. First, most non-libertarians are so statist and legislation-accepting, that they accept the common wisdom. Second, IP law is so arcane and convoluted that it's not understood well by most non-specialist libertarians--so they sort of just assume it's part of property law but just some boring, specialized area. The few libertarians who try to justify it on principle, like Rand or Galambos or Schulman, are so overboard or passionate that libertarians who only casually look at this assume they are right.

And a third reason is that until the digital, Internet revolution the abuse and injustice has been more limited and less visible. But I think with the increasingly visible examples of increasingly unjust applications, principled libertarians can see more and more easily that IP is poppycock. So that when they hear nonsense like "two copyrights" and just envisions students being sued for ... taking notes, they know it's all baloney.

We just need to persuade them it's not fixable--it's inherently screwed up. It can't be fixed. It has to go.

[Mises post; SK post]

Outrageous and Ridiculous Patents and Judgments

Taken from the Appendix to my Mises Daily article Radical Patent Reform Is Not on the Way:

Examples of Outrageous Patents and Judgments

Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice): The Supreme Court, in the 1882 case Atlantic Works v. Brady, 107 US 192, itself lists examples of patents issued to "gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge … the simplest of devices." These included
  • a particular doorknob made of clay rather than metal or wood, where differently shaped doorknobs had previously been made of clay.
  • making collars of parchment paper where linen paper and linen had previously been used.
  • a method for preserving fish by freezing them in a container that operates in the same manner as an ice-cream freezer.
  • rubber caps put on wood pencils to serve as erasers
  • inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser
  • a stamp for impressing initials in the side of a plug of tobacco
  • a hose reel of large diameter so that water may flow through the hose while it is wound on the reel
  • putting rollers on a machine to make it movable
  • using flat cord instead of round cord for the loop at the end of suspenders
  • placing rubber hand grips on bicycle handlebars
  • an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips
Below are a few notable or recent examples of large, significant, troubling, or apparently outrageous injunctions, damages awards, and the like:

[StephanKinsella.com cross-post]

TI Uses Copyright to Attack TI Calculator Enthusiasts

As noted here (see also here, here, here),
Texas Instruments has issued a DMCA notice to United TI, a group of enthusiasts. They had been cracking the keys that sign the operating system binaries in an attempt to gain access and possibly expand on the features.
Suing your own most dedicated fans of your increasingly outmoded device (its calculators), for trying to modify it to make it more useful to them. It's hard to decide what's more ridiculous: IP law, or the way companies use them. [SK cross-post; mises cross-post]

Intergalactic Patents Hypothetical

My buddy Iceberg proposed a delicious test for IP proponents:
Here is a scenario to test a IP statists' resolve--what would he say if one day aliens visited Earth to enforce intergalactic patents for devices which were patented 600 million years prior by that alien culture that mankind has been "stealing."
Ha. That is indeed the logic of their position. Of course the IP advocates would find a slippery way to weasel out of it. They would say that this is another government--except the logic if their non-anarchist view implies one-worldism; and anyway, if something is real property, it's property everywhere. They would say that they don't believe patent rights should apply to independent inventors--even though patent systems have no such exception and would be largely declawed if they did.

[SK crosspost]

Sex can't possibly be IP, can it?

Apparently, it can. Link here. I'm glad I was young in the '70's.

Death Throes of the Dinosaurs

Google Patents Its Home Page Layout

You can't make this stuff up.

As reported on Patently-O,

Earlier this week, the USPTO issued a design patent to Google that covers the "ornamental design for a graphical user interface [GUI] … as shown and described." Pat. No. D. 599,372. Design patent coverage is essentially defined by the images include in the issued patent. Here, the image looks roughly the same as the company's ubiquitous Google.com homepage. (See image below.)

To be clear, many patent professionals would argue that it is misleading to ever simply call this "a patent." Rather, it is a design patent. Design patents have severely limited scope, only cover ornamental designs rather than technological advances, and are very frequently found invalid when challenged in court. The USPTO has been granting design patent protection for screen shots and icons for many years. However, to my (limited) knowledge, none of those design patents have ever been enforced in court. ...

Dashed or "ghost" lines in the drawing indicate features that are not claimed. Thus, patent would be infringed by someone using an identical layout even if they replaced the "Google" mark with their own mark. You can note at the bottom that the design patent drawing is marked with a circle-c ©. That indicates that Google is also claiming copyright protection for this layout. In addition, in the design patent, Google indicates that it is also claiming trademark protection for portions of the layout and - perhaps - for the layout as a whole.

[SK cross-post]

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