Against Monopoly

defending the right to innovate

IP in the News

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.

current posts | more recent posts | earlier posts

Maybe the King Family Never Heard of Fair Use

The King family wants to sue people who are using Dr. King's image in conjunction with the recent election. Here's the story.

The fact that a lot of money is possibly at stake is irrelevant. If J.K. Rowling wrote a best seller that had a quote from an obscure author, would he have a right to sue for a piece of Ms. Rowling's royalty action just because she cleaned up financially, thanks only in part to her copyright monopoly? The monopoly formerly known as intellectual property is all about getting a piece of someone else's action by using the State, an institution rightly termed by Mr. Libertarian, Murray N. Rothbard, as "the biggest mass murderer, armed robber, enslaver, and parasite in all of human history." He couldn't have called it the biggest monopolist in history, because it's the only monopolist in history.

More Patent Silliness

Via Lonnie Holder

While I am pro-intellectual property, I am against patents that appear to be, in my opinion, ludicrous. Please find a link below to a patent application that, in my opinion, appears to be beyond ludicrous. The application is from Halliburton Energy Services and is for "Patent Acquisition and Assertion by a (Non-Inventor) First Party Against a Second Party."

This application should fail for several reasons. First, it appears to me to be silly or even absurd. The essence of this patent is sort of like having a patented method for making use of your refrigerator. After all, one of the purposes of a patent is to "prevent," and the claims of the application as filed say essentially that someone should buy a patent from someone else and assert it against a third party to "prevent" them from making, using or selling their invention. Therefore, if this patent would issue, it would hamper the ability of others from exercising their right to "prevent."

Now, Halliburton has cleverly pointed out that a person may use a computer to perform research on a "secret aspect" of the second party's software to make the "secret aspect" observable, or non-secret, and that portion of their claim appears to be the novel feature.

So, the intent of this patent application is to buy a patent, hack (seems like hacking to me!) into someone's software, write a claim using knowledge of the hacked software, getting the patent to issue, and then asserting the patent against the second party. The only difference is making the "secret aspect" non-secret.

Hopefully the USPTO will find references in patent law that point out that Halliburton's "novel" idea is already embodied in the law and is therefore not novel. Reverse engineering, especially hacking someone's software, is certainly not new. Indeed, Halliburton might even find itself up against the formidable DMCA since the DMCA specifically prohibits bypassing security protocols, and Halliburton's claims appear to be perilously close to requiring an illegal act (turning the hidden aspect into an observable aspect) in order to be operative. That would assuredly be a USPTO no-no as the claim would not be useful as defined by 35 U.S.C. 101, since a portion of the claim would require an illegal action.

The second issue I already discussed above, and that is that people have taken these steps (almost assuredly including figuring out whether software code could be covered by a patent application) before. So this technique is not new and should also fail under 35 U.S.C. 102 or 35 U.S.C. 103.

Third, Bilski should sink this one like a rock. After all, nearly all of these steps are purely mental steps except for the reverse engineering part. Even the reverse engineering part is mostly mental process, except for exposing the code, which does require a computer. However, the computer would usually be a general purpose computer and Bilski should apply.

This application has yet to go to an examiner, so it might be a while before we see how the USPTO deals with it.

link to the patent here

Under the dark of night

It isn't unexpected, either that they did it, or that they did it while everyone was distracted with the financial crisis...but we now have a cabinet level copyright czar to go with our drug czar. Let us hope that the war against copying will be as effective as the war on drugs.

(graph from the American Journal of Public Health)

The position of drug czar was created in 1982 (according to Wikipedia). The dark lines are the prices of cocaine and heroin which have been falling ever since. Does the creation of a "czar" position mean that they have given up hope?

Addendum: There is something else interesting in that graph. One industry that operates entirely without the "benefit" of patents and copyright is the illegal drug industry. Yet it is a very innovative industry. For starters, as can be seen in the graph, prices have dropped quite a bit - over 15 years by a factor of about 5 (a little more allowing for inflation). Few industries can match that. And we know that there have been significant innovations: the invention of crystal methamphetamine; rock cocaine; stronger strains of marijuana and so forth. And presumably there have been innovations in methods of smuggling drugs into the country. Clearly these have been widely imitated. Which brings up the question: maybe if the government legalized recreational drugs, but subjected them to the same type of patent restrictions as ordinary pharmaceutical products - the price would go up instead of down?

Rowling wins

JOHN ELIGON describes the close of the Harry Potter case link here. Author Rowling won. Eligon quotes the judge's ruling, "Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling's novels." The ruling blocks publication of a Harry Potter Lexicon written by Steven Jan Vander Ark. For details, see Ligons piece.

The judge apparently admits to being an ardent Potter fan. One would have to see the Lexicon text to judge whether "fair use" was violated.

More on the high cost of college textbooks and what to do about it

The Washington Post gives front page coverage to the high cost of textbooks and what can be done about it link here. It notes that Congress passed a bill "forcing publishers to release more information about their prices. It also requires them to sell a textbook separately rather than packaged with a CD or workbook that makes for a more expensive purchase. However, the provisions do not take effect until 2010." Several states have passed similar laws as well.

The article goes on to note the thriving used textbook market but observes that prices are very close to those of a new text. Some teachers are also encouraging used texts by not changing them from year to year. Finally, the authors note the existence of a thriving exchange for scanned copies link here using a disclaimer that the site is not responsible for text illegally copied, since all users sign an agreement that are the original owner or abide by the copyright laws.

The article fails to mention the legal downloading of texts available on the internet where the author has put them under open license.

How big a snippet of music violates fair use?

Robert Levine writes in the NYTimes today about Gregg Gillis, a D J who goes by the title Girl Talk and produces musical performances composed of snippets of other people's music link here. He is pushing the limits of copyright, claiming fair use, and is distributing some of his performances as free downloads, with a request for contributions, but is looking forward to a big album and might love the publicity of a suit.

Levine speculates that Gillis hasn't been prosecuted because the RIAA is afraid of losing a precedent setting case in which large snippets were found to constitute fair use. I would guess it may also have learned that prosecuting is pretty unpopular with their music buyers.

Although this case seems to constitute an example in which fair use is expanded and copyright restricted, it is only one small example of a possible win against the ever expanding limits imposed under copyright law. Fighting these cases in court against the well heeled doesn't see to be working, so I have come to agree with Larry Lessig that the IP monopolists will only be rolled back by political action.

Provisional ACTA terms now public

From time to time word has leaked out about the negotiations on ACTA, the European, US, and Japanese joint proposal on an international copyright and patent agreement. If you think agreement is a great idea, that makes sense. The problem is that its terms will apparently extend the reach of restrictions in ways that reflect special interests and totally ignore the development of technology's effect on business models in ways which foster innovation--the whole point of patents and copyright.

Till now, our government has been cosy about the terms of its draft agreement. But somebody squealed and the terms are spelled out at Wikileaks link here. Go read. Fortunately, nothing is likely to happen till after the new administration has taken over.

Not Completely Stupid Then

An interesting story in the LA Times about the movie "Dark Knight." They went to great lengths to make sure that bootleg DVDs wouldn't hit the streets for the first two days after the movie was released:

Warner created a "chain of custody" to track who had access to the film at any moment. It varied the shipping and delivery methods, staggering the delivery of film reels, so the entire movie wouldn't arrive at multiplexes in one shipment, in order to reduce risk of an entire copy being lost or stolen. It conducted spot checks of hundreds of theaters domestically and abroad, to ensure that illegal camcording wasn't taking place. It even handed out night-vision goggles to exhibitors in Australia, where the film opened two days before its U.S. launch, to scan the audience for the telltale infrared signal of a camcorder.

Warner Bros. executives said the extra vigilance paid off, helping to prevent camcorded copies of the reported $180-million film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. The movie has now taken in more than $300 million.

The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.

Notice: intellectual property didn't play any role in this, and they focused on the doable - keeping the monopoly for a short period of time. I am completely in favor of this: I think a truly short-term monopoly does little social harm, and provides important incentives for creation. But as this makes clear: the police power of the state isn't needed here. And it's absence makes sure that the monopoly is truely short lived. I've long thought that this is the proper use of DRM: don't try to lock down stuff that is years old for decades - clearly a losing proposition - but use it to keep the secret on initial release. If that is accompanied by the DRM-free version to be released after a short pre-announced period of time, the incentives for crackers drops, and it becomes posible to actually keep the secret.

New textbook business model?

Complaints about the high cost of college textbooks grow but are now evoking new responses link here. Randall Stross, professor of business at San Jose State University, writes that Pirate Bay and other torrent sites have challenged the publishers, forcing them to explore new business models or lose most of the income from the copyright. The alternative of choice seems to be a gated site charging a fee and supplemented by the sale of additional teaching materials not included in the text, so the copyright produces income, but less than the sale of hard copies. While it will lower the high cost of accessing text material, it still doesn't beat free, so don't expect the torrent sources to dry up completely.

The death of software patents??

Something seems to be cooking in software patents, hopefully important news. However, it is a bit early to cheer, as big interests are engaged.

The source of the excitement is that the Patent and Trademark Office seems likely to declare software patents invalid if the expressed PTO view prevails. You can start reading the bare bones of the story here. Then go to the referenced post for a more detailed legal view link here .

The logic is that software patents ought to go. But remember as you cheer that there is a legal and a political process to be worked through and that ain't bean bag.

current posts | more recent posts | earlier posts


Most Recent Comments

A Texas Tale of Intellectual Property Litigation (A Watering Hole Patent Trolls) Aunque suena insignificante, los números son alarmantes y nos demuestran que no es tan mínimo como

James Boyle's new book with his congenial IP views free to download

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1

French firm has patents on using computers to choose medical treatment 1