On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article "Informational Property: Logorights" begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It's just being pointedly ignored and Kinsella's attempts to change the subject don't make me forget what I wrote.

My response is as follows [my other comments on Schulman's logorights idea may be found in Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Renaming Intellectual Property; and pp. 16, 26 et pass. of my Against Intellectual Property]:

Neil, I said your term "logorights" is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that "having an identity" is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one's property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the "identity" of one's property.

The reason is that owning value, patterns, identify gives you an ownership right in others' already-owned property. Saying you own the "identity" of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B's rights of control are transferred to A-it's a transfer of wealth or property, and it's incompatible with libertarian property rights.

The mistake Rand made was thinking "anything you create" is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others' property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it's made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your "identify" view when he assumes that many "ontological" types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to "identify" things that is successful, has magically created a new class of property. I find the concept "poem" useful-it is conceptually valid.. poems "have" "identity"-voila, they must be property!

I don't agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a "thing," does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

[Cross-posted on SK and Mises Blog]

From a post by Joe Mullin: Centocor v. Abbott: Biggest Patent Verdict Ever.:

This afternoon, a jury in Marshall, Texas, awarded the largest patent verdict in history: Abbott Laboratories must pay $1.67 billion to Centocor, a subsidiary of Johnson & Johnson, because its Humira arthritis treatment infringes U.S. Patent No. 7,070,775. ... The jury deliberated for five hours before issuing the verdict, which specifies $1.17 billion for lost profits and $504 million as a reasonable royalty.

As I noted here, referring to a $1.92 million verdict against Jammie Thomas for "illegally" sharing 24 songs, "The pro-IP libertarians ought to hang their heads in shame. If they support this result, it's unthinkably evil. If they oppose it-well, they really can't, can they, since this is the result of having a state-run IP system-of having a state at all."

[Cross-posted at StephanKinsella.com and Mises blog]

The recent issue of IP Law & Business has a fascinating Q&A with Harvard law professor Charles Nesson, who is representing Joel Tenenbaum, a 25-year-old doctoral student being sued by five record companies under the Digital Theft Deterrence and Copyright Act of 1999. Tenenbaum refused to settle, and Nesson is arguing "that the law is unconstitutional because it allows for 'grossly excessive' awards."

While it's demeaning to have to hope for a just statutory interpretation by fake judges appointed by the criminal state of an artificial positive law enacted by "law"-makers of another department of the same criminal gang, it's heartening to see some people fighting back, and some otherwise mainstream legal professionals fighting for them. I doubt Nesson is a libertarian or against IP completely, but some of his comments are great. For example, he says,

"With the Net, there are artists who are figuring out ways to profit without using this clout of the copyright law. ... I believe the recording companies have great skills to offer artists, and there may need to be some reshuffling in the way those skills are passed around and the ways in which revenue is returned. ... If you see the United States in a competition with other nations in a digital world, and you think the best asset you have for the future are your own children, who will become the digerati, who think imaginatively in that environment, you will be against the idea that you use the law, the power of the state, to make those learners fearful of clicking on the Net."

(Aside: I also like how the same publication refers to a recent patent settlement as a "tax": Intuit Taxed $120 Million by Intellectual Ventures.)

[Cross-posted at SK and Mises]

The Supreme Court has declined to take an appeal of a case that held that Cablevision does not infringe copyright by providing a "remote DVR" service to its customers--the court reasoned that it is the customers, not Cablevision, who are making copies of programs, which they are permitted to do (if Cablevision were the one "making" the copies, it would be "more akin to video-on-demand, for which they negotiate licensing fees with cable providers"). The upshot is that consumers won't need to have a DVR box in their homes to record shows; they will be hosted on the servers of the cable or other provider. If only there were not a copyright statute in place in the first place, the courts would not have to engage in contorted reasoning to achieve just results.

[Cross-posted at LRC and StephanKinsella.com]

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.

My review of Music and Copyright by Ronald S.Rosen on my site has led to an interesting correspondence with the author, Ron Rosen, which serves to illustrate the difficulty which any open minded copyright lawyer can have in actually debating copyright issues.

Ron, if you will recall, was the attorney for the composer John Williams who was sued for allegedly copying a phrase which he used in the score for the movie "E.T. The Extraterresterial". After four years of litigation the dispute over a commonplace musical phrase ended successfully for Mr Williams and Ron Rosen. Hence this book which outlines the importance of expert testimony in cases involving music - and provides insights into some of the novel arguments which might today be presented in cases involving mash-ups.

I was critical of one aspect of the book. I said "The main difficulty with this book is its use of musical notation. Understanding a music copyright case without being able to hear the actual music does not work well. I would like to see Rosen make a video lecture of parts of his book - possibly as a TED talk - since only then could the non-musical reader gain an understanding of the complexities of bringing and defending musical copyright claims. Put the video on a YouTube, link it to a website selling the book and Rosen will have created a resource for all lawyers and creative people worldwide."

However Ron e-mailed me to say "...A propos your comment about the need for aural examples, that is something we wanted to do for this edition, but as a new publication, the need for licenses and the budget foreclosed our doing so. "

The thought that Ron would need 'licences' merely to illustrate an academic argument had never occurred to me - although it should have. I responded "...I now fully understand why you have not illustrated your book by way of a video - but what an extraordinary position to be in. You really find yourself in a "Catch 22" - since, as a copyright attorney (who will be presumed will be fully aware of the law in this area) you need the permission of the copyright owners to illustrate, in an intelligible manner, the fact that their copyrights are likely to be worthless. If ever there was a case for compulsory licensing and fair use this is it. If you were doing this in the courtroom you would be free to do so. But instead if you just went ahead and put a video lecture on the web you would open yourself up to a law suit and heavy damages. The law of copyright has serious chilling effects today. I wonder what Larry Lessig and James Boyle would think about the situation you find yourself in."

Ron replied "Thank you for the comments, which are right on the mark. If we are fortunate enough to publish a second edition, we might be a position to secure licenses for small portions of the sound recordings at reasonable rates. If, however, the current edition is highly successful, we may be able to get licenses for the second edition in exchange for crediting the record companies for the use of these extracts, if the composition is in the public domain. If, however, the music itself is also protected by copyright, we would need licenses from both the copyright owner of the sound recording and the owner of the copyright in and to the music. Looking over this paragraph, you will notice a lot of "ifs", which sums up the situation."

You would think libertarians would be unambiguously for freedom of speech. In Intellectual Property vs. Creative Freedom, Cathy Young discusses a literal book banning by a federal judge: he has temporarily enjoined "publication of a novel called 60 Years Later: Coming Through the Rye," based on copyright claims by "J. D. Salinger, author of the 1951 classic Catcher in the Rye." The judge is expected to decide soon whether to make the ban permanent. Yes, this is all because of copyright.

Copyright now lasts well over 100 years, due to continual copyright extension over the years--as Young notes, "When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14."

Does Ms. Young want to abolish copyright, this obvious threat to freedom of press? Or at least return to the 14 + 14 year system? Why, no. She has figured out the optimal way to handle this: "Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author." Fifty years. Where she gets this number is anybody's guess.

This is libertarianism?

[Cross-posted at StephanKinsella.com]

via Melody Walker: a nice article in Business Week about law professor John Duffy. He seems to be of two minds about patents: he wants everything to be patentable but better standards of non-obviousness. I'd agree with the latter.

I wrote here on 6/14 "And once again we come up with the question posed by copyright, giving publishers and owners a claim on an income stream that would not otherwise have existed. There is no clear public benefit from paying them. The owners will provide no service to receive this bonanza. Nor is the public interest protected to achieve the lowest possible price, consistent with providing the service, the marginal cost to the provider." I return to Google today, focusing once more on the proposed settlement (as no doubt I will again as more of the details emerge on the proposed settlement the feds now have under review). This essay was prompted by David Carr, writing in the NYTimes link here.

The dilemma has several aspects. One is the gain from making so much written human effort readily available on the internet, both conveniently and hopefully, at modest cost. Against this is the cost that consumers will have to pay Google for access, the amount of which is still unclear. And the fact that Google will end up with a monopoly at selling access to these books, with the minuscule exception provided by borrowing the copy from a library which provided Google the chance to scan it in the first place.

That monopoly will exist by virtue of the government agreed terms now proposed by Google. No other companies willing to scan and offer public access will be in a position to compete unless they can undercut Google's resale prices and Google has the advantage of first-to-market. Libraries for the most part seem to have got little for providing access--those that provided the books for scanning and their members get free access to the Google files. In the end these institutions were funded by the public through taxes (our money) in the first place, so this seems like a clever move to capture the return from a public investment.

But the deal is still subject to government approval. Will the government try to renegotiate the deal? Hopefully yes. The cost, of course, is the delay is making access publicly available. To me, that is a small price to pay.

As an opponent of copyright, however, I would like to see the whole deal and copyright itself abolished. That is unlikely. How about a deal in which unregistered copyrights beyond five or ten years old, automatically expire. And an expiration date on all other copyrights of ten or twenty years. Not very realistic politically, but unless we find some basis for compromise, I suspect we will get no real welfare-increasing improvements.

More later.