Crosbie has a nice post. Here's to piracy.

by using The Pirate Bay. Just kidding.

It's bad enough they want us to celebate "World IP Day". But now they are focused on "promoting green innovation." Groan. Gotta love this state-sponsored propaganda-fest.

Celebrate World Intellectual Property Day

Today [April 26, 2009] is World Intellectual Property Day and this year WIPO's focus is on promoting green innovation as the key to a secure future.

According to WIPO, most people are aware of intellectual property (IP) but many still view patents, copyrights and trademarks as business or legal concepts with little to no relevance to their own lives. To address this gap, WIPO's Member States decided in 2000 to designate an annual World Intellectual Property Day. They chose April 26, the date on which the Convention establishing WIPO originally entered into force in 1970.

Each year, WIPO and its Member States celebrate World Intellectual Property Day with activities, events and campaigns. These are an attempt to increase public understanding of what IP really means, and to demonstrate how the IP system fosters not only music, arts and entertainments, but also all the products and technological innovations that help to shape our world.

WIPO issues a message from the Director General each year, broadcasts a short publicity spot on international television channels, and dispatches posters and other promotional materials to IP offices and organizations.

In EE Times: Opinion: Engineers should stage a patent strike, I noted an op-ed by Rick Merritt in EETimes, "Opinion: Engineers should stage a patent strike."

A Mr. J. C. Cooper, of Pixel Instruments Corp., replied with a letter to the editor in defense of the patent system. My reply is reprinted below:

***

Mr. Cooper writes:

"Your articles in the April 20 edition of EE Times ["Dealing with Mad Patent Disease"] which portray the U.S. patent system as broken and worse seem terribly biased. I wonder where you are getting your information. Surely you don't have any direct experience with patents, e.g. using a patent to protect a money making invention, or you would be able to formulate a more balanced viewpoint."

I'd like to respectfully disagree with some of Mr. Cooper's contentions. As a preliminary matter, I disagree that only those with a lot of experience in patenting are entitled to have an opinion, or ought to be accused of being "biased" if they dissent on the mainstream viewpoint on IP rights. that said, I am a practicing, registered patent attorney, with BSEE and MSEE degrees. I've represented many clients and obtained hundreds of issued patents over the last 15 or so years.

Mr. Cooper writes,

"The patent system could use some tweaking but it is far from the "mad patent disease" you describe. The U.S. needs a stronger patent system, not weaker .... The only way that innovation, and its industry, can be protected is with intellectual property, i.e. patents. To weaken the patent system at the urging and benefit of a few large multinational corporations (most of which have been found guilty in court of stealing the property of others) runs the risk of destroying that one remaining thriving U.S. industry."

There are a few problematic assumptions and chains of reasoning here. I agree that innovation is good, but Mr. Cooper's assumption that "The only way that innovation, and its industry, can be protected is with intellectual property, i.e. patents" is unwarranted. There are of course other ways--exclusion methods; first-to-market; trade secrets, and so on. And there are other methods discussed extensively in Boldrin and Levine's Against Intellectual Monopoly. No one can seriously argue there would be no innovation without patents. At most, you can argue there is more innovation under a patent system.

But the patent system obviously has costs. So the argument that we need a patent system to encourage more innovation assumes that the value of the extra innovation induced by a patent system is greater than the costs of the patent system. But as I note in my article "There's No Such Thing as a Free Patent" (links below to this and others mentioned here), no one has ever been able to show this. In fact, most studies and analyses I'm aware of conclude that if anything, the cost of the patent system is greater than the value of any extra, marginal innovation stimulated. Some analyses even conclude that there is less innovation overall under a patent sytem, than there would be without one--so that added to the undeniable cost of the patent system is the cost of the lost innovation.

If Mr. Cooper is aware of information no one else seems to have--what is the net value of the patent system (i.e., what is the value of the extra innovation induced by the patent system, minus any lost innovation, minus other costs of the patent system), I and others would love to see this data.

Mr. Cooper implies that those opposed to IP rights are biased, or not "balanced," or are mainly "a few large multinational corporations (most of which have been found guilty in court of stealing the property of others)." But surely individuals and even companies are entitled to their viewpoint. It can easily be argued that those who can profit from the patent monopoly granted to them by the state are also biased, and are willing to argue in favor of the patent monopoly system--that they do not really care whether the system is a net benefit to the economy overall--that they are happy to have it exist so long as they benefit from it, even if this is at the expense of overall innovation and growth. Certainly, the deafening silence of advocates of IP to provide any data that supports their contention that patents indeed spur innovation worth more than the cost of the system, casts suspicion on their sincerity. (And is it really that surprising that patent attorneys are almost uniformly pro-IP rights?)

Mr. Cooper's aside that most of the "large multinational corporations" complaining about patents "have been found guilty in court of stealing the property of others" begs the question of whether IP is, or should be, recognized as a legitimate form of property rights, by calling it "stealing" of "property". The question is whether patterns of information are, or ought to be ownable as property. In my view, not only does the patent system cause overall economic damage in the billions of dollars, but patent and copyright are not legitimate forms of property rights--in fact, patent and copyright are contrary to, and undermine, private property rights. As I argue in my book Against Intellectual Property, a free market relies on private property rights being respected, which means scarce resources are owned by the original homesteader of the property, or that person's descendant in title. But to grant a patent to someone who finds a new way to use their own property, is to grant that person some rights in how other people use their own property--this is redistribution from owners, to outsiders. As an example, if the state granted me the right to prevent Mr. Cooper from using his car to transport passengers--if I had this type of veto right--then I could demand he pay me a royalty for my permission to let him carry passengers. I would be a partial owner of his car--where before, he was the full owner, now he is only a part owner. This would be a type of theft of Mr. Cooper's rights in his car, a transfer from him to me. This is what the patent system does, and it is ethically unjustified and contrary to the sanctity of private property rights.

It is understandable that technology companies take advantage of the state's patent system; they have virtually no choice, if only for defensive reasons. And it is understandable they become used to this model, and cannot imagine how their business model would change if the state did not intervene in the market with IP law. But this does not mean IP law is justified.

For those interested in further reading on this (and for links to some of the sources mentioned above), I recommend:

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.

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.

One way to avoid a hangover is to stay drunk. Just as the buzz from the celebrations of World Book and Copyright Day was fading, I joined the local World IP Day festivities.

http://www.wipo.int/ip-outreach/en/ipday/2009/activities.html

Unfortunately, I couldn't attend the raucous parties held in that IP hotbed Kenya. Activities included the distribution of "copyright comics" to school students with a view to instilling respect for intellectual property rights.

Looks like Great Depression II has helped forced the parties to a gargantuan, long-standing patent battle to the negotiating table. From The American Lawyer: Litigation Daily:

Looking back, we knew this day would come. For the last four years, Broadcom and Qualcomm have been litigating against each other with the chess-match strategic intensity of Cold War rivals, as we learned when we spent a few months in the fall of 2007 reporting and writing an American Lawyer cover story on the epic litigation. Trust us, these companies don't like each other. But we knew they couldn't sustain the pace and expense of litigation that literally spanned the globe. Qualcomm, which seemed to get beat up in case after case by Broadcom, simply could not justify paying hundreds of millions of dollars to the likes of Cooley Godward Kronish, DLA Piper, and Cravath, Swaine & Moore.

And so, on Sunday night, the two announced they had reached peace, agreeing to drop all litigation against each other. That's going to leave a gaping hole in the dockets of the International Trade Commission, the federal district court in Santa Ana, Calif., the European Commission, and the Korea Fair Trade Commission. The deal includes a multiyear patent agreement and requires Qualcomm to pay Broadcom $891 million over a four-year period. ... Qualcomm insists that nothing in the Broadcom settlement agreement will affect its highly profitable business model of licensing its technology. "We will be able to continue to operate as in the past," Qualcomm's general counsel, Don Rosenberg, told The San Diego Tribune. "But we're not standing around here thumping our chests."

Rosenberg said cutting legal costs was "clearly a factor" driving settlement talks. According to one estimate, Qualcomm was spending $100 million annually in its fight with Broadcom. ... "It's not unusual in a case like this, as you get near settlement, for there to be negotiated reductions in legal expenses," French said. "It's a natural course. If a company does not get its optimum desired result, needless to say, it is looking for how to minimize its total financial exposure."

Hundreds of millions of dollars down the rathole, and hundreds of millions more to be paid in the future--what a productive use of resources the patent system "stimulates". And to think--some pro-patent types want to foist this system on China -- one patent hawk raves: "The quality of patents issued in China is also improving. Revisions to the patent law that take effect in October strengthen the requirement for a patent's novelty, bringing it up to global standards. Stronger patents are easier to enforce, opening the door to more lawsuits." And that's a good thing? China, do not listen to Americans! on Tax policy, antitrust, or IP!

From zenhabits: Feel the Fear and Do It Anyway (or, the Privatization of the English Language)

Post written by Leo Babauta.

Today I received an email from the lawyers of author Susan Jeffers, PhD., notifying me that I'd infringed on her trademark by inadvertently using the phrase "feel the fear and do it anyway" in my post last week, A Guide to Beating the Fears That Hold You Back.

The phrase, apparently, is the title of one of her books … a book I'd never heard of. I wasn't referring to her book. I'm not using the phrase as a title of a book or product or to sell anything. I was just referring to something a friend said on Twitter.

Her lawyers asked me to insert the (R) symbol after the phrase, in my post, and add this sentence: "This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission."

Yeah. I'm not gonna do that.

I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked. We're not talking about the names of products … we're talking about the English language. You know, the words many of us use for such things as … talking, and writing, and general communication? Perhaps I'm a little behind the times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?

What if this were taken to an extreme? What if some billionaire (say, Bill Gates) decided to start trademarking thousands and thousands of phrases, so that he could charge us for each use, or so that we'd have to link back to the Microsoft homepage with each reference? The language, in this scenario, could be entirely privatized if we allow this sort of thing.

So, while this post is probably ill-advised (and yes, I realize that I'm actually giving publicity to Ms. Jeffers), I have to object. I think we have a duty, as writers and bloggers and speakers of the English language, to defend our rights to … words. Free speech is a bit of an important concept, I think.

As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant. You want your ideas to spread, and you should encourage people to spread your ideas, not put up all kinds of boundaries and restrictions and obstacles to that being done. This blog, for example, is Uncopyrighted, and will always be free, because I want people to spread my posts and ideas. I think it's actually good for me as a writer, and it's (not insignificantly) better for the writing community in general if we can share each others' work freely. I'm hoping that with posts like this, and the good work of thousands of other like-minded people, the old mindset of fencing off ideas and language will slowly change.

So, no, I will not be adding a Registered Trademark symbol to the previous post. And no, I won't be adding a phrase of legalese to the post. And no, I won't even attribute the phrase or link to her book, as I wasn't referring to the book. And no, I won't remove the phrase.

I'd rather be sued.

Oh, and I'm not going to change the title of this post either. You'll have to remove it from my cold, dead iMac.

On a side note: You may feel free to use the title of my book, The Power of Less, in any of your blog posts, on Twitter or even (gasp) everyday conversation.

[Cross-posted at Mises blog]

You may have heard that a judge in Sweden found against the Pirate Bay for copyright violation. He concluded that linking to material that might be under copyright is a violation of copyright. Here is a letter summarizing what is going on now:

Dear David:

I just had to write and tell you what has happened the last few days.

In about five days that has gone since The Pirate Bay verdict, the Pirateparty has now become 38.000 members strong. Still increasing fast. Six days ago we were only 14.000 - now we are Swedens fourth largest party - counting members. A couple of days later we will be no:3 if things keep going like they do.

To get in to the European parliament we need about 100.000 votes.

That goal actually seems quite reachable right now. Last election we had about 6000 members and we got 37.000 votes. And things are hot like never before right now for our questions - and nothing else seems really to be a hot topic. And, it´s less than 30 days left to the election.

Hope to keep you updated - this is going to be really exiting!

Today the newspapers blew up a scandal that the judge for The Pirate Bay trial actually also was a member of a couple copyright organisations. He had also worked with some of the lawyers that represented the copyright industry in the trial.

If you are interested read more about the incredible story you can read it in english at:

link here

I am currently writing a book called "The Pirate Manual - How to speak with voters" in swedish. I hope you don´t mind I mention your books.

Sincerely yours

Mika Sjöman The Swedish Pirate Party

I'd like to welcome our newest blogger Meera Nair. Meera has a PhD from the School of Communication, Dept. of Applied Sciences, Simon Fraser University, Canada, and is interested in "fair dealing" in Canada - what is called "fair use" in the United States. I'm doing her first post for her as she is having trouble typing right now.

Meera sends a brief summary of the state of fair dealing in Canada as seen by the courts there.

Supreme Court of Canada 2002: Thaberge v. Galerie d'Art du Petit Champlain inc. 2002 SCC 34

This case concerned a transformation of legally purchased artwork; infringement was the charge, the majority opinion disagreed. They said:

Parliament formulated restrictive provisions which gave the owner of the copyright a certain control power of the uses. There is no general right to control subsequent uses.The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature.

Supreme Court of Canada 2004: CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13

This case concerned, amongst other things, a library making photocopies of copyrighted materials (at the request of patrons.) In a unanimous decision, Fair Dealing was held to be an integral part of the law. There were quite a few gems in the decision; here are a few of them Fair dealing is always available; Research must be given a large and liberal interpretation in order to ensure that user's rights are not unduly constrained; Research is not limited to non-commercial or private contexts; The availability of a license is not relevant to deciding whether a dealing has been fair.

Supreme Court of Canada 2004: Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45

With an 8-1 decision, the Supreme Court of Canada ruled that ISPs are not liable if copyrighted material passes through their servers. (The dissenting opinion was related to a question of territoriality.):

[The Canadian] Parliament made a policy distinction between those who abuse the Internet to obtain cheap music and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.

Supreme Court of Canada 2006: Robertson v. Thomson 2006 SCC 43:

A freelance journalistic objected to the inclusion of her work in a CD-ROM of the publishing newspaper, and in two databases. The court grappled with the question: where are the boundaries to copyright in the individual work, and the publisher's compilation? Both the majority and minority opinions expressed the view that copyright is a limited right, AND, that transformation into a new medium did not recast the ambit of that right. Taken together, it is a strong rebuttal to those who continue to insist that digital works have absolute copyright.

Although they are working hard. Stephan points us to a list of libraries available online.