Just kidding. A good day for mail; a bad day for innovation. From Mario Stargard:

Here in Canada, Big Pharma won a case brought by Generic drug manufacturers challenging the constitutionality of protecting research results of drugs. Ironically, the companies whose drugs are being protected in this scheme are called the innovators. Seems to me that by preventing Generics from using study data for 8 years means that they have little to no chance to innovate further advances which in turn slows down everybody's innovation, except big pharma, of course, as they will always have access to their own data. As we've seen before, large companies with IP protection are not known for innovation.

link here

Mario

Christian Engström, the Pirate Party's member of the European parliament, has penned a great op-ed in the Financial Times on the need for IP reform in the digital age.

A sample taste:

Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

The world is at a crossroads. The internet and new information technologies are so powerful that no matter what we do, society will change. But the direction has not been decided.

The article got linked to on the Drudge Report under the appropriately worded headline: "Copyright laws threaten online freedom; Governments restrict right to communicate..."

Read the whole thing HERE.

Mathew Yglesias has an interesting post on Chris Anderson's book "Free" which inspired some comments that are worth taking a look at.

Read it all HERE.

Fear of a government crackdown does drive policy as we see in this story, Google Makes a Case That It Isn't So Big link here. In fact, Google is huge. The issues are whether that is a danger and whether anything worthwhile can be done about it. To reach any sensible conclusion, one needs to examine the pieces that make up Google.

The preeminent one is search. Google entered the business after many others. It became number one by being better--more flexible, comprehensive and faster--but now has a lock on web ads. It is now the standard for both searchers and advertisers. It is hard to see how that will change.

Its second big success is YouTube and here too Google seems unassailable as a number of competitors have failed to dent its lead. That is based in part on its having become a social network, particularly for its younger users; its size makes it more attractive. But it has some real political power appealing to an older audience, as exemplified most recently by its role in quickly propagating videos of the protests in Iran.

More recently, Google has introduced Gmail and Chrome. Its email service is free but so are others which have the virtue of familiarity for existing users. Its browser apparently has made a dent in Microsoft's Internet Explorer but isn't that great an improvement over others.

To me, the most troubling of Google's ventures is its book scanning service. It is clearly first in the field, has already scanned a huge part of the world's books, both in and out of copyright, and has worked out a deal with publishers and many other copyright holders. Its technology will be hard for others to match on previously undigitized print books. On first look, this seems to be a natural monopoly, so the ramifications of its proposed settlement are enormous. Its existing lead will also give it a very large leg up on distributing new books that are copyrighted and presumably already digitized.

Another public policy response to Google, whose size is so scary and growing, would be to consider breaking up the company into its obvious components. Most seem to me already to be so large that they can survive on their own. Google's great strength besides its financial clout has been its innovation. Would breaking it up destroy that? That is a question worth further thought and investigation.

Paul Krugman has an interesting post on his blog this morning about the monopoly positions that large health insurance companies like Blue Cross/Blue Shield enjoy in states with small populations. He hypothesizes that the reason Senators from those states tend to oppose the public option in the health care reform legislation is a direct response to the rent-seeking activities of the incumbent monopoly providers in these states.

Jim Lindgren has an interesting post over at Volokh.com concerning the legal battle over a book that may or may not be characterized by some as an unauthorized sequel to "Catcher in the Rye".

Be sure to read it here.

This case brings up a number of issues:

First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.

For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.

I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.

Second, this case also illustrates just how slippery (and I would argue, unsustainable) current fair use concepts are that try to differentiate between "criticism", "parody" and academic explorations of previous literary works versus competing concepts such as "satire" and unauthorized "derivative works" that may contain some vestiges of the previously mentioned fair use categories.

How will "Coming Through The Rye" be classified if it functions as both a "derivative work" of "Catcher in the Rye" as well as literary criticism and history concerning the creation of the same?

Third, this case seems to be another instance of where the judiciary throws out their usual rules regarding prior restraints against free speech when it comes to mere (unproven) allegations of IP infringement. Courts will not allow prior restraints in libel cases. They didn't even allow it in the famed Pentagon Papers case which involved allegations of breaches of national security. But when it comes to protecting IP whenever somebody shouts "copyright" - judges too often seem to ignore free speech concerns.

Eugene Volokh wrote a great law paper on this issue. I'd advise checking it out here:

http://www.law.ucla.edu/volokh/copyinj.htm

I remember once being lucky enough to come across a copy of "The Wind Done Gone" during a time when a federal judge had enjoined its publication through a temporary restraining order - essentially declaring it unlawful to own and distribute due to copyright complaints from the Margaret Mitchell estate. I purchased it, and secretly horded it away as though I was living through some twisted version of "Fahrenheit 451". I thought it might remain on the list of "banned books" in the U.S. As it turned out however, the copyright case over it was settled, and the book was eventually "allowed" to published.

Perhaps the proper solution is the same one utilized in "Fahrenheit 451". When a rebellious populous was faced with a nation of "firemen" whose job it was to burn all books, each person was given the task of committing a book to memory in order to orally recite it later to others, thus circumventing the state by placing the books in the one area it could not reach - the human mind.

On second thought, that won't work. Current copyright laws prevent the unauthorized "performance" of copyrighted works - including recitals.

Beware the current crop of "firemen" looking to set the nation's Rye fields ablaze....

Kevin Carson has just released his Intellectual Property--A Libertarian Critique. I haven't had a chance to read all of it yet, but from a quick skim it looks good, and with a title like this--and given that IP is turning out to be an insidious tool wielded by the state to destroy and re-route wealth--it's worth looking into.

Alexandre de Ridder sends along a couple of links. The first is a speech by Eben Moglen Freeing the Mind: Free Software and the Death of Proprietary Culture. The second is a piece called The Absurdity of Copyright by a fellow named Dr.Godfried-Willem RAES. Now the interesting thing is that while both agree (as do I) that copyright is an absurdity - I think that the Free Software people have it right, and I'm less sure about Dr. Raes...let me quote the part that makes me doubtful. Dr. Raes starts from the following thought:

Information cannot be possessed. It is not property since it cannot be taken away. It is object nor energy, but essentially form.

I don't really want to debate that point; it is true or false depending on what you mean about information. Specifically: it seems to be true of information in the abstract, but not in the concrete. That is, the statement would seem to be true of the fundamental theorem of calculus - and equally false when applied to any specific copy of the fundamental theorem of calculus (embodied in a book, in the head of a specific person, etc.) My point is simply that abstract information is irrelevant - and copies of ideas are pretty ordinary as economic commodities go, subject to quite ordinary profit and loss calculations. And here is where I think the Free Software people have the key point - in the ordinary profit and loss calculation, copies probably aren't that valuable, and in the future it will be the market for services that counts.

My colleague John Nachbar pointed out the following interesting fact to me.

The big US case right now is the MPAA against RealNetworks

My understanding is that the ability to copy or rip a DVD for own use is a legal grey area. Actually stripping out the drm is supposedly illegal under the law as it now stands (a stupid law, in my view). But the RealNetworks software does *not* strip out the drm. This case is the anti-napster: RealNetworks is not being accused of facilitating the distribution of copyrighted material. They are being accused of giving the owners of DVDs a way to convert them into a more convenient form for their own use.

Nothing to add.

I have been repeating the following to people in emails of late, in response to queries about the free-market opposition to intellectual property, so below I provide a concise list of links for some good material explaining the libertarian/free-market case against IP:

1. The superb new book Against Intellectual Monopoly, by economists Boldrin and Levine.

2. Jeff Tucker's excellent commentaries on Boldrin and Levine.

3. Some of my material, many on Mises.org. Such as: my little book, Against Intellectual Property, my article "There's No Such Thing as a Free Patent," and my presentation, "Rethinking IP Completely," all available here.

4. Mike Masnick's frequent and excellent anti-IP commentary on Techdirt.

There are many other excellent anti-IP pieces, but this is a good starting point.