While waiting in my doctor's office with nothing to read, I picked up a copy of the Washington Lawyer, the journal of the DC bar. It had a long piece on the "March Toward a National Digital Library" by Sarah Kellogg that I think worth reading. And pondering. It is online here .

A lot has been happening, but it remains slow going as the lawyers and the interest groups continue to try to find a workable deal on the remaining issues. Still the author is hopeful. But she also notes that we have had the technology to digitize print matter since 1971 when Project Gutenberg published it first e-book. Forty years. Think about that.

We as citizens with the largest stake in the public interest can take a much more jaundiced view of what has to be considered a national and global failure. The existence of the internet and the actual digitization of so much material that remains locked up is a national disgrace. At this point, keeping this material under lock and key is a tribute to the copyright monopolies that have been established and then extended in time and coverage due to their political power. The deadweight cost to human kind of these monopolies is staggering.

Why is it that there is no national clamor to end this nonsense?

The last post might leave you wondering: if closing down small start up domains prevents competition, why were the big guys against SOPA/PIPA? That is the difference between a growing innovative industry and a dying industry. Music, movies and books may be thriving, but studios and publishing houses are dying. So: what is the last refuge of the desperate? Government protection - read SOPA/PIPA.

In a dynamic growing industry the incentives are different. Sure: Google would get some protection from competition from SOPA/PIPA. But Google isn't after the few dollars to be gained by smashing the competition. They are after the big dollars to be gained by growing their business. The Google vision is that of the cloud: always connected internet devices connect us to our own data and shared data stored on Google and other servers. What is killing Microsoft? Google docs is certainly part of the story. But if our data online is at risk - either because Google is required to pry into our private data, or because the Feds may come along and grab it - the rest of us aren't going to buy into that Google vision. Crucial to the big markets Google sees as still ripe for plucking is that we have to trust that the cloud is safe. SOPA/PIPA, domain seizure, the DMCA, take-down notices: these all make us rightfully distrustful of the cloud.

Perhaps I should remind you of the history of Microsoft: while they were a growing dynamic company they were opposed to software patents. Now that they are pathetic and declining that's all they have left. They can't sell their own products, so they use (pretty meaningless) patents to tax Android phones.

When an industry or company turns to the government, sell short, they are going down.

I want to elaborate on the previous post. The point of the SOPA/PIPA as well as the meguploads take down is that there is no accusation that the site operators were pirates, merely that pirates used their site to distribute pirated material. For the sake of argument let's just accept the law that piracy is illegal. People can easily use social networking sites such as facebook, and cloud storage sites such as dropbox to exchange links to pirated files and make them available. Nor can the site operators easily police their sites; the technical difficulties aside (and they are significant) there is also the issue of user privacy if the operators go poking around in files and postings.

It seems to me unlikely that the Feds would take down large widely used domains such as facebook or dropbox - certainly if they did there would be a massive public outcry, and they would be forced to back down, and we'd have to witness politicians profusely apologizing and explaining that it wasn't their fault.

What that means is that it becomes hard to start a new social networking or file-sharing business. The new-comer or startup - unlike facebook or dropbox - can be shut down without a massive public outcry. So: the unintended consequence is that it is now a lot harder to start the next facebook. We face a huge economic crisis. Many people think we need to innovate our way out of it. Creating huge barriers to entry and giving existing players a big advantage over entrants isn't the way to do this.

If we follow the logic of Chris Dodd to the obvious conclusion: the internet facilitates the piracy of copyrighted material. So let's just shut it down.

Really I find what happened with the megauploads take down stunning. Bear in mind that there were at least some legitimate files stored on those servers: for example, a lot of xda-developer files were distributed through megauploads. Imagine I parked my car in a garage. Then when it was later alleged that some of the other cars in the garage were stolen the police seized my car along with the others. All the legitimate users of megauploads lost their files. Talk about guilt by association. What if it was alleged that people were sharing pirated files through dropbox, and the feds removed dropbox from the web?

Aleks Yankelevich drew my attention to an interesting patent case Gore versus Garlock. The Federal Circuit court decided to reverse a lower court reaching the stunning conclusion that prior art doesn't matter if it was kept secret. So if you invent something and keep it secret, someone else can patent it.

To be clear: in terms of promoting innovation - if someone already invented it once without claiming a patent that's pretty good evidence that no patent was needed to provide the incentive to innovate. There is the argument that one of the purposes of patent law is to give incentive to reveal secrets - the problem is that argument doesn't make sense. If patents last 20 years I'll only take out the patent if I don't think I can keep the secret for 20 years - in which case nobody will be able to use the information I revealed until after they would have figured it out anyway.

The ability of Congress to ignore any evidence (see SOPA/PIPA) and the courts to ignore common sense is frightening.

The Supreme Court has found Congress can extend copyright protection to works that had previously been in the public domain link here. The decision was 6-2 with one recusal. The story is covered here and here, but focus should be on the two dissenters who held that Congress had exceeded its authority when judged by the constitutional provision that copyright was justified when it served "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."

The Court majority dismissed the minority view by saying that the current copyright interpretation is settled law and they won't change it. This keeps the arts in a box where the current copyright holder has a monopoly extending beyond his lifetime. Most often they are held by a corporation which creates nothing.

This is another step in the process of extending the reach of intellectual property law to suppress new creation and extend monopoly, to the cost of the public. One begins to wonder if this will ever change for the better.

Thomas Lin writes at length about the scientific process, peer review of results, and publication of scientific papers link here.

The concern remains that the results of research financed by the public's taxes are not available free. The science establishment turns out of be conservative, however, and is sticking to the tradition of time consuming peer review and publication in the established journals. The results are still appropriated by the journals and published at great expense but considerable profit and public access is correspondingly limited.

Still, some signs of progress are reported as taking advantage of technological changes, most importantly in the growth of the internet and the emergence of the “open web”. Open access sites include the Public Library of Science (PloS), GalaxyZoo, ResearchGate, arXiv, and ScienceOnline.

Tne traditional journals have seemingly struck back, supporting the Research Works Act now in Congress which would protect the traditional publishers through restricting access to papers and data.

Lin, however, seems convinced that the times are a changing and that access will be more open, costs reduced, the scientific process speeded up, and advantage taken of the technological changes in communication.

Kudos to Kevin Zelnio, who shoots down the self-serving rationales behind the so-called Research Works Act recently introduced in the U.S. House of Representatives by Darrell Issa and Carolyn Maloney. This piece of legislation would reverse the National Institute of Health's open access policy, which requires that all tax-payer funded research be available to the public for free. Kevin's piece appears in Scientific American's blog, and is well worth the read.

The internet makes it easy to redistribute unauthorized copies - SOPA is an effort to put an end to that, albeit at the price of getting rid of the internet. But the internet also makes it easy to reach audiences. From the point of view of the big distributors represented by the MPAA and the RIAA it's all bad. I'm pretty sure buggy-whip makers didn't much like automobiles either. But what about the artist? Chris Phelan points us to a recent article about Louis C.K. a successful but not superstar comedian. Rather than taking the $200K that the big distributors would have paid him, he put up $170K of his own money to produce the video of his show. Unlike the big distributors who hate their customers as much as their customers hate them - Louis C. K. has a good relationship with his customers. He put the video on-sale for a quarter of the price the big guys would have charged - $5 each copy. He did it without DRM, and simply asked politely that people buy it from him and not redistribute it. He took in $2 million, a net of about $1.8 million.

It's funny how old fashioned business sense - produce a product people like and treat them well - works as well on the internet as anywhere else. Unfortunately crony capitalism if you can afford the politicians is even better.

Writing in the New York Times, Randy Kennedy reports on a court decision that would make it illegal to use most work of others still under copyright as the basis for new works which "transform" the original link here.

"The decision, by Judge Deborah A. Batts, set off alarm bells throughout Chelsea and in museums across America that show contemporary art. At the heart of the case, which Mr. Prince is now appealing, is the principle called fair use, a kind of door in the bulwark of copyright protections. It gives artists (or anyone for that matter) the ability to use someone else's material for certain purposes, especially if the result transforms the thing used or as Judge Pierre N. Leval described it in an influential 1990 law review article, if the new thing "adds value to the original" so that society as a whole is culturally enriched by it. In the most famous test of the principle, the Supreme Court in 1994 found a possibility of fair use by the group 2 Live Crew in its sampling of parts of Roy Orbison's "Oh Pretty Woman" for the sake of one form of added value, parody."

There is lots more in the article about what is allowable as being legally transformative. The line between what is not allowed will remain in dispute until copyright is once again shortened to a reasonable period. I would argue that anything more that 10 years is excessive because the present discounted value of the income stream arising therefrom approaches zero and no longer constitutes an incentive to create as required by the constitution for copyright.