A nice post by the Economic Logician (well I think it's nice since he's nice to us).

Have you noticed how the grip on intellectual property law keeps expanding: copyright periods lengthen, the scope of patentable "innovations" widens, and the enforcement of intellectual property become the topic of international trade negotiations. But should we expect this?

The post is here.

I don't intend to use this forum to get into the debate over global warming/climate change. My personal views on the subject have been aired elsewhere in the blogosphere.

However, it should be noted that the Democratically controlled U.S. House recently voted by large margins to oppose any global climate change treaty that weakens the IP rights of American "green technology." This effectively demonstrates where the true priorities have been all along with regards to the "climate change" issue.

Details here.

(I note that the House is 'Democratically controlled' merely to help illustrate the fact that IP protection currently has well entrenched bipartisan support among the political establishment - overriding more partisan divides that might otherwise take place concerning environmental legislation. I have no doubt that this particular vote would have been the same had the Republicans been in control.)

Four more days to the European Parliamentary Elections, and the Pirate Party in Sweden looks set to get at least one seat, possibly two, out of Sweden's total share of 18 seats.

It should be said, though, that the opinion polls are notoriously unreliable. In one opinion poll, 45.6% said they had not decided which party they would vote for. Some have also argued that the Pirate Party numbers are inflated since the party is supported mainly by young men, who typically don't vote to the same extent as others. On the other hand, the Pirate Party's supporters may be more motivated than others to vote in this election.

The Pirate Party's main proposals are shorter copyright lengths, abolished patents, and increased privacy protection.

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.

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]

I just came across an interesting thing I had not known about the effect of state meddling on publishing. See Wikipedia here and here, noting:

Thor Power Tool Company v. Commissioner, 439 U.S. 522 (1979) was a United States Supreme Court ruling which changed the way companies are allowed to depreciate their unsold inventory. Thor's inventory was overestimated, and was written down to scrap, but it did not immediately scrap the items or sell them at reduced prices. Thor treated the write-down of excess inventory as an adjustment to closing inventory increasing the costs of goods sold and reducing tax due. Reducing tax liability may not have been the drive behind Thor management's incentive to reduce inventory, but a welcome by-product; new management may have wanted to reduce the previous year's profits so as to seemingly increase their performance in the following year.

An unforeseen side effect of this decision was that it became less profitable for publishers to keep slowly but regularly selling books in print (their backlist). Some argue that this has made it harder for midlist authors to make a living because books tend to be remaindered or pulped and go out of print more quickly.

In other words, a de facto change in the tax laws concerning inventories made it profitable to pulp unsold books earlier and this has had an adverse effect on authors who have slow but steady sales. As Levine noted to me, this ties into the whole issue of digital technology. On the one hand, digital technology makes copyright de facto obsolete, and it can make it harder for creators to recoup their investment because the market may be flooded with cheap copies quickly. This is what the pro-copyright forces argue (so therefore we need draconian copyright laws to overcome all this). The basic facts are true, but there are many facts that go the other direction. This is one of them--by selling electronic or print-on-demand copies directly to buyers authors don't face "early liquidation" by publishers.

Singer Jackson Browne has sued John McCain for copyright infringement after a state Republican party ad supporting McCain used a snippet of Jackson's song "Running on Empty".

Some background of the case HERE and HERE.

Courtesy of The Hollywood Reporter blog, McCain's Motion to Dismiss the lawsuit can be found HERE. [PDF]

McCain's "Anti-SLAPP" Special Motion To Strike the complaint can be found HERE. [PDF]

While I support McCain's legal efforts in this instance, it is hard to feel sorry for him as he has little moral credibility on the issue. Leaving aside all other aspects of Presidential politics, McCain has stood aside for years in the Senate and allowed copyright law to metastasize out of control into the current cancer it is.

Then, after McCain's campaign first got BURNED with the law that he supported, he had the GALL to SUGGEST that SPECIAL fair use considerations should be given to politicians and their campaigns - but not necessarily to the general public. Because after all, we wouldn't want to make meaningful reforms to copyright law, now would we?

For shame Senator! But good luck with with your fair use defense in your copyright infringement suit using laws that apply to everyone equally.

Since IP causes only about $40 billion or so a year damage to the economy, I hereby withdraw my objections. That amount is obviously trivial, in view of trillion-dollar bailouts, trillion-dollar wars, scores of trillions of dollars of debt. And as for the $80 billion tax-funded innovation prize fund--chicken feed. Let 'er rip!

From Wired.com:

U.S. lawmakers approved the creation of a cabinet-level position of copyright czar as part of sweeping intellectual property enforcement legislation that sailed through the Senate on Friday.

Read the whole thing. This follows up David K. Levine's alert here.

You know things are bad when an organization like Public Knowledge is forced to essentially state, "Well, it could have been worse. Let's all be grateful for that."

Who do we have to pay off in the House to kill this monstrosity? Oh, that's right. I forgot. They have already been bought off by the other side...

Replying to IP practitioner Russ Krajek's post McCain vs Obama on IP Issues: There is No Contest:

Russ,

A few comments.

You write: "All the participants agreed on the same underlying principle: intellectual property rights are important and should be protected. In general, both sides agreed on the general goal of more rigorous patent examination that would, in theory, result in stronger patents. ... the general recognition of the importance in IP protection and its role in the economy was emphasized. ... The ‘problem' is that patents being issued today do not generate the confidence and respect in the public that, as a matter of public policy, one would expect."

Why would one "expect" this from the government? The state can't do anything well except destroy and damage. Why would anyone expect it to do anything constructive well?

"The bad press and attacks on patents in general have eroded confidence in all patents."

Why is this a bad thing? If patents are a net harm on society, why shouldn't people be skeptical of them? Why isn't it better that patents are weak?

"An inventor who obtains a patent cannot enjoy as much of the benefits of the patent as public policy would dictate."

Perhaps true; but why would anyone think the level of benefits that public policy "would dictate" are justifiable?

"Patents should be issued for inventions which are new, useful, and fully disclosed. Inventions that do not meet all three requirements should not be issued. Seems pretty simple, but the execution of the solution is down and dirty and decidedly not glamorous."

It doesn't seem simple to me. These requirements are purely arbitrary, unscientific, non-objective, legislated criteria, administered by a federal bureaucracy and federal courts--i.e., by a bunch of government employees. Why would anyone think this could ever be simple or just?

"I was glad to know that advisors to both candidates had a firm grasp of the issues and fundamentally agreed that strong Intellectual Property rights would be good for the country as a matter of policy."

Why do you assume that strong IP rights are "good for the country"? I mean, how do you know this? Why do IP practitioners always assume this--just because it is in their interest for the patent system to stay in place does not mean it is good for the country. No one can deny that the patent system imposes costs on the economy. How do its proponents know that the benefits are greater than the costs? Russ, what are the net benefits, in dollar terms? What are its benefits? Its costs? If you don't know, how do you know the net is positive?