FYI

Its that time of year again. The annual celebration of "World Book and Copyright Day" takes place tomorrow, 23 April. For those of you unaware of the event, it was organized by UNESCO to promote reading, publishing and copyright. The Day was first celebrated in 1995.

http://en.wikipedia.org/wiki/World_Book_and_Copyright_Day

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.

Fifth RIAA appointment to the Department of Justice. No revolving door of lobbyists here.

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...

Peter Leeson has a fantasy about pirates and their utility. as promoters of socially useful values like freedom, equality, liberty, and democracy back when monarchies were tyrants link here.

The George Mason economics professor writes in respect to the Somali pirates , but his point is worth thinking about in terms of IP piracy as well. IP pirates promote a greater social good, once one gets over the illusion that IP enforcement facilitates innovation. And as good economists, they deliver the product at its marginal cost, either nothing or close to it.