Those who have read our book may be aware of the story of 19th Century copyright in the US - in which English authors could not copyright their works in the U.S. We cite Arnold Plant, who quotes a commission report suggesting that English authors never-the-less got paid by American publishers. Meera Nair has the quotation from the original

it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results from these arrangements, and instances are even known in which an English author's returns from the United States exceed the profits of his British sale

Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyrights. Report, Minutes of Evidence, Appendix (London: Eyre and Spottiswoode. 1878) Report, page xxxvii. para. 242.

One thing that has always puzzled me is whether you can sign a contract agreeing to give up your fair use rights. My colleague David McGowan point to some legal opinions on the subject. The crude summary seems to be that contract law is state law, so hard to give a uniform rule, but that

I think it is fair to say that so far the federal cases interpreting state law have gone against finding copyright pre-emption of state contract law and have upheld contractual prohibitions on conduct that would qualify as fair use if done outside a contract: link here, link here.

He also refers to the ProCD opinion.

All of which raises the question: why isn't it more widespread? Why don't book and music publishers stick in a little fine print saying in effect "by purchasing this product I agree to give up all my fair use rights"?

One of the reasons that I am skeptical of patent systems and IP in general is that the evidence suggests that those whose innovations are supposed to be encouraged by IP - namely smaller less profitable innovations that might not exist without the extra protection - cannot easily afford to use the system. Here is another cautionary tale about how difficult it is to protect yourself under existing law. Via David McGowan it is about building tools for model railroad computer control.

Nicholas Gruen has an interesting post about patent extensions in Australia. It boils down to: they manage to make sure all the generics for export get made somewhere else...

(from Akin at Irdial...I think I'll just reproduce the email he got...)

Dear Irdial-Discs,

We have removed your document "An Inquiry into the Nature and Causes of the Wealth of Nations" because our text matching system determined that it was very similar to a work that has been marked as copyrighted and not permitted on Scribd.

Like all automated matching systems, our system is not perfect and occasionally makes mistakes. If you believe that your document is not infringing, please contact us at copyright@scribd.com and we will investigate the matter.

As stated in our terms of use, repeated incidents of copyright infringement will result in the deletion of your Scribd.com account and prohibit you from uploading material to Scribd.com in the future. To prevent us from having to take these steps, please delete from scribd.com any material you have uploaded to which you do not own the necessary rights and refrain from uploading any material you are not entitled to upload. For more information about Scribd.com's copyright policy, please read the Terms of Use located at http://www.scribd.com/terms

Jason Bentley

Directory of Community Development

jason@scribd.com

For the record Adam Smith died in 1790 and nothing he wrote is currently under copyright any where in the world.

OTI.com aggregates information about IP from a variety of sources (including this blog)...if you want to keep tabs on IP news, it is a good place to look.

(via Steve Silberstein) One of the reason the patent system does not work more poorly than it does is that companies acquire large portfolios of patents that they hold over each others head, effectively neutralizing the patent system and letting everyone get on with the business of actually inventing useful stuff. The "patent trolls" or non-practicing entities (NPEs) have broken this system by creating firms that don't actually do anything except hold patents, so they are free to sue, without any threat of being counter sued. Patent Freedom is a web site devoted to tracking the trolls - they have a wealth of interesting information about them.

You may have heard that an international treaty that would make serious revisions to copyright enforcement and penalties is being negotiated secretly by the Obama administration. Organizations that have tried to obtain documents and related information under the freedom of information act have been denied on account of "national security" although every pro-copyright lobbyist is apparently allowed to participate. Stephan gives a link to a nice video report discussing the matter link here.

Steve Silberstein writes in with some reading suggestions

James Bessen and Michael Meurer "Patent failure : how judges, bureaucrats and lawyers put innovaters at risk" - I've read this, and contains a lot of useful information and careful analysis. I saw the authors at a conference yesterday...I have given them a hard time about their conclusion. Roughly they document how thoroughly broken and useless the patent system is and then conclude that we should tweak it a little bit...

Three more books I haven't read: "Copyrights and Copywrongs" by Siva Raidyanathan "Not so patently obvious" by Eric Stasik "Copyrights Paradox" by Neil Weinstock Netanel

Opinions welcome; if you've read one why not post a comment?

from Danny Piccirillo

I created the Facebook group "I don't believe in imaginary property ". The group is hosting an upcoming "Pirate Pride Day" on the anniversay of Microsoft's global Anti-Piracy Day.

Enjoy!!