So argues David Bollier in the post Et tu, Obama? Open Government Suffers Another Blow. An excerpt:

A government cannot be held accountable if there is a cloak of secrecy around its core deliberations and citizens are excluded from the process. ... So what gives with the Obama administration's refusal to share the most basic documents about a pending intellectual property treaty that are widely available among corporate lobbyists in Europe, Japan and the United States?

The Anti-Counterfeiting Trade Agreement, or ACTA, may sound arcane, and certainly its corporate champions must wish to make it seem boring and obscure. But in fact, the misleadingly named treaty could dramatically alter the Internet by allowing the film, music, publishing and other industries to aggressively enforce their IP rights, as they broadly construe them, at the expense of citizens, consumers and creators. All this would be achieved through secret deliberations an international version of the smoke-filled room: another brazen disenfranchisement of citizens and trampling of democratic norms.

No official version of the proposed treaty has been released, but it is known that it seeks to set forth standards for enforcing cases of alleged copyright and patent infringement. The treaty also seeks to provide legal authority for the surveillance of Internet file transfers and searches of personal property. Read more about ACTA here and here.

[Cross-posted at Mises blog]

Ancient Books Go Online reports:

"The BBC is reporting that the United Nations' World Digital Library has gone online with an initial offering of 1,200 ancient manuscripts, parchments and documents. To no great surprise, Europe comes in first with 380 items. South America comes in second with 320, with a very distant third place being given to the Middle East at a paltry 157 texts. This is only the initial round, so the leader board can be expected to change. There are, for example, a lot of Sumerian and Babylonian tablets, many of which are already online elsewhere. Astonishingly, the collection is covered by numerous copyright laws, according to the legal page. Use of material from a given country is subject to whatever restrictions that country places, in addition to any local and international copyright laws. With some of the contributions being over 8,000 years old, this has to be the longest copyright extension ever offered. There is nothing on whether the original artists get royalties, however."

This excellent Slate piece, My Mythical Online Rental Service for Movies: Why Hollywood is so slow to catch up on offering all of its movies and shows online, provides a good explanation of why it's going to be AT LEAST 10 YEARS before we have decent online movies on demand--and why bittorrent and movie pirating will only continue in popularity.

The article explains that, due to the incredibly confusing, complex, and slow-to-change contractual system that locks up and segments movie rights, "Reed Hastings, Netflix's founder, told the Hollywood Reporter last month that it'll be 10 years before we see a streaming service that offers any movie at any time."

This is all due to a byzantine web of contracts, build up on the foundation of copyright. It's truly stunning. I would not be surprised if it's 20 years, or more.

Update: See also Mike Masnick's excellent post, Would You Rather Renegotiate Your Contracts... Or See Your Business Collapse?

[Cross-posted on Mises Blog.]

Opinion: Engineers should stage a patent strike

Rick Merritt (04/20/2009 12:00 AM EDT)

It's time for engineers to stage an intellectual property strike.

Stop filing patents. Refuse to sign employment contracts that give your employer sole title to your inventions. Don't participate in any due diligence efforts on patent portfolios.

Engineers need to organize if this IP strike is to be effective. That will require creating a new organization.

Existing lobby groups on patent issues in the electronics industry represent the views of specific sets of companies, not engineers. Even the IEEE is so diversified in its base that it admits it has not been able to form a crisp consensus on issues like patent reform.

Don't get me wrong. I am not saying engineers should stop work in the midst of a recession of historic proportions. I stand with those who say we design ourselves out of downturns by creating compelling products. What I'm saying is, hands off anything to do with patents.

I admit this is an extreme position and one engineers are unlikely to take up, but that doesn't mean a patent strike is the wrong thing to do. In fact, it could be very right.

The patent system is broken, and someone needs to call attention to that fact to spark real change. As the creators of the technology, engineers have the power to command that attention, if they choose to use it.

This is a historic moment to send a message that the patent system needs fixing, because influential leaders are listening. Patent reform is front and center in Congress, and an administration that ran on change is poised to appoint a new director for the U.S. Patent and Trademark Office.

Patents are supposed to capture innovations in ways that compel engineers to read them. They are meant to spur designers to creative action, inspiring them to develop novel work-arounds or to license ideas that are too good to pass up.

Sadly, the reality today is just the opposite. Bad policies and practices have coalesced around patents. In this week's cover story, we call it mad patent disease [].

Corporate legal departments tell engineers which patents they can and can't read. Sometimes engineers are told not to read patents at all, lest they be accused of deliberately infringing someone's IP.

Meanwhile, businesspeople of all stripes pressure engineers to file patent applications for every idea. That has spawned a business of litigation and licensing that charges for portfolios by the pound. Companies now wield patents strategically to charge others for the freedom to innovate. In this sick world, patents don't spark innovation, they inhibit it.

Quantity has replaced quality, and that has created a mess. Legal departments settle infringement cases in part because they can't afford to pay anyone to provide informed opinions about all the patents asserted against them. Thus, portfolios that contain a lot of junk can still command a premium.

As the premiums rise, more people file more patents to defend against the madness or to get their share of the IP bucks. The result is a patent office up to its ears in a backlog approaching a million applications, sitting in a pile three years deep.

Patents should have a reasonable value for their owners and users. They should be available to all on a timely basis so they can encourage innovation, not stifle it.

Engineers need to speak up in a loud and clear voice about what's wrong. If they don't, I suspect the lawyers and corporate managers who have gotten us into today's mess will continue to build on the upside-down bubble market for patents they have created.

Great review of Against Intellectual Monopoly by the powerhouse libertarian reviewer, David Gordon, in the recent issue of Mises Review.

The March 30, 2009 episode of Free Talk Live discusses this topic (around 00:11:00).

Hat tip to Manuel Lora.

Fantastic post by Jeff Tucker at Mises Blog:

***

IP Vices and Crimes

March 18, 2009 8:51 AM

The 18 or so articles I've written about "intellectual property"--elaborating on a book I consider to be a seminal work of our epoch, Against Intellectual Monopoly--generated floods of email like I've never seen on any topic. The thing that gets people going is the conclusion: in a free market, there should be no legal grants of patent or copyright.

What many people do--and this is rather depressing from the point of view of a writer--is seize on the conclusion, ignore the reasoning and arguments, and then attempt an instantaneous, arm-chair refutation.

It always goes something like this: "Oh, you are telling me that I could just steal this article that you wrote, even put my name on it, sell it and take the money, and there would be nothing wrong with doing that?"

Some go even further to actually do this: put their names on it, post it somewhere, and send me the link.

I think precisely what you are thinking: "What a jerk!"

I'm not sure what other kind of response they expect from me. They must really think I will say: "Oh, this is so shocking! I had not considered that someone might actually do this to me if we got rid of the U.S. Copyright Office! My goodness, this kind of thing cannot be tolerated. I was completely wrong in everything I said. I too am grateful to the state for all it does to protect my intellectual creations and my good name."

Sorry to say, this is not my response. My detailed response actually goes as follows: "If you do that in a free society, you will not be arrested by the police or experience physical coercion blessed by official mandate. However, everyone is free to regard you as a poseur, a wretch, a menace to society, and wholly lacking in credibility. If having a good reputation counts to you, it's probably not a good idea to pretend to have written something that you have not in fact written."

The difference here comes down to a wonderful distinction that was made by Lysander Spooner in the 19th century. He was careful to explain the difference between a vice and a crime. A crime involves aggressive force or threat of aggressive force against another person or privately owned property. A vice, however, is a much larger category of behaviors that don't involve invasion of person or property.

Vices can involve lying, being nasty to others, eating like a pig in public, abusing oneself with drugs or liquor, failing to shower and thereby stinking to high heaven, swearing in public, betraying benefactors, rumor mongering, displaying ingratitude, not keeping commitments, being a shopaholic, being a greedy miser, failing to do what you say you are going to do, making up stories about other people, taking credit for things you didn't do, failing to give credit where it is due, and other things along these lines.

In a free society, vice is control through decentralized social enforcement of social, ethical, and religious norms. The great problem of statism is that it turns vices into crimes, and then when the law is repealed, people forget that there are, after all, certain social norms that nonetheless need to be upheld and will be upheld once society is managing itself rather than being managed by the state.

Consider the case of classroom plagiarism, for example. A teacher wrote to me with a concern that the repeal of intellectual property law would make it more difficult to punish students for turning in work that claimed to original but was actually copied from elsewhere. I pointed out that the police and courts are not involved in the enforcement of classroom rules now, so why would a change in federal legislation be any different? Plagiarism is still plagiarism.

IP law has really had the effect of distorting our society's sense of all of these matters. It has made everyone too unwilling to admit our dependence on imitation and emulation as institutions that permit and encourage progress. It has made people too shy to copy the success of others and admit to doing so. Writers, artists, entrepreneurs all live with this weird burden of expectation that everything they do must be completely original and they must never draw from others sources. It's preposterous!

On the other hand, we are too quick to credit the state for preventing the mass outbreak of old-fashioned vice. Even without copyright and patent, some kinds of behaviors and practices will remain shoddy, unseemly, ungracious, conniving, and social unacceptable. What, for example, would you say about a local author who claim to write a new play that turned out to be written by Shakespeare? Doing this is perfectly legal right now. But the person would be regarded as a lout and a fool for the rest of his life.

Hence, the repeal of "intellectual property" law does not mean some sort of crazed free-for-all chaos in which no one can be entirely sure of anyone's identity, creations, who wrote what, what company did what, where credit is due, what one's commitments are, and the like. What we will gain is a great sense of our moral obligations to each other.

And in the absence of the state's grant of monopoly privilege, we will become ever more vigilant in giving credit where it is due. You still have to be a nice person who acts with a sense of fairness, equanimity, and justice, as conventionally understood. If you don't, the state will not crack your skull, but you will lose something profoundly important.

In other words, in absence of IP, we gain a greater sense of the distinction between what is vice and what is crime, and a better means for dealing with both.

An ars technica post, Study: free markets superior to patent monopolies, reports:

Our economic system is based on the expectation that markets can provide optimal solutions more efficiently than monopolies, with one glaring exception: patents, which are structured in a "winner takes all" manner. A study appearing in today's edition of Science suggests that markets might work here, too.

Now, I know, there are many problems with even evaluating an IP system on utilitarian grounds; but the purported innovation-spurring effects of an IP system are what its advocates usually claim in support of having it. So it's natural to ask: well, where's the proof? Never is it provided. Study after study concludes that an IP system's costs are about equal to, or greater than, any benefits it provides. (See my There's No Such Thing as a Free Patent; What are the Costs of the Patent System?.) So it's no wonder yet another study concludes this.

[Cross-posted at Mises Blog.]

Google Books On The iPhone and G1 Is Almost Kindle-Like (And Real Mobile Kindle May Be Coming Soon) rightly raves about about the mobile version of Google Books. It works great on an iPhone (and it turns out the rumors about Kindle coming to the iPhone were right; see also my LRC post Kindle v. Netbook v. ePub, Bookworm and Stanza).

However, it turns out that you can only see "free" google books in mobile site. For example, on my iPhone I cannot see the 1907 Edith Nesbit book The Enchanted Castle in the mobile-optimized version of Google Books. (Try it even from a regular browser, from that mobile site, you'll see what I mean.) However, if you go to the regular Google Books site, you can find and read the whole thing--even on an iPhone. You just can't use the mobile-optimized version of Google Books to view it--even on a computer. So you can read the book on an iPhone, but not in a mobile-optimized format.

I suspect that Google did this because of copyright concerns, as part of their deal with publishers--perhaps it made them carve out something for mobile phones or platforms. It's amazing how much copyright law distorts our entire economy.

[Cross-posted at Mises Blog.]

In this post, Monsanto's General Counsel disagrees with Google's Head of Patents and General Counsel, who had complained about the risks companies like Google face from huge damage awards in patent lawsuits.

I am so tired of patent lawyers and companies with vested interests making the tired old argument that we should not "weaken" patent protection because it's needed to promote and protect innovation--without ever once even alluding to the fact that these purported benefits have an accompanying cost, much less demonstrating that the cost is worth the benefit received. (See my There's No Such Thing as a Free Patent; What are the Costs of the Patent System?)

I'd much prefer simple, honest calls for protectionism: Monsanto wants patent protection to remain strong, because they think it benefits their own company--regardless of the overall effects or costs on other companies or the economy as a whole. Fine, an honest plea for redistribution of wealth.

Note how Monsant just brushes off Google's costs and fears:

"I respectfully disagree with the recent blog post by Google's Head of Patents and General Counsel, commenting on the perceived risks from damage awards in patent cases. Monsanto has faced billion dollar damage claims as a wrongly sued patent defendant and also knows the true benefits from avoiding the encouragement of willful infringement based on a smaller party's calculated gain in the face of limited risk of a meaningful award of damages if infringement is established. With full knowledge of all these issues and our substantial alignment with Google and the information technology industry over the legitimate need to curtail patent trolls and a myriad of other concerns - we encourage thoughtful reform."

Amazing that he just says he "disagrees" with Google's perception of risks from high damage awards in patent cases--even as it admits Monsanto has faced billion dollar damage claims in wrongful patent suits. Does it occur to this gentleman that perhaps not every company is comfortable facing the risk of wrongful billion dollar patent claims?

[Cross-posted at Mises Blog]