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Against Monopoly

defending the right to innovate

The IP Wars

Monopoly corrupts. Absolute monopoly corrupts absolutely.





Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


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The Arms Merchants of the Patent Wars

Hedge funds are financing IP lawsuits . Rembrandt IP Management is buying patents and aiming to bring lawsuits.

"We are focused on jury verdicts," says the head of Rembrandt.

Hopefully the juries will do the right thing and bring verdicts in favor of the defendants in all cases. (We can dream, no?) The rent seeking Rembrandt firm is going after the cable industry now and has sued Comcast and other outfits.

A Comcast lawyer says "this seems to be a perversion of what the system was designed to accomplish."

She overlooks that the system was flawed to begin with, and that the IP wars were inevitable, given the realities of our politicized legal system, and the rent seeking and financial stakes involved.

The changing music business

Mike Masnick has a thought provoking piece on new business models for musicians and music companies link here. Live concerts are still where the money is, while CD sales are slowly tanking. He cites two examples, tying priority access to concert tickets to purchasing an iTune and an earlier post of his, handing out USB drives with new music on them at a concert link here. That latter post mentions still another gimmick, selling CDs by having them change color as they are played.

So the music business is changing, the RIAA members are hurting, but the musicians are adapting and the consumer benefits. Good news all around.

Microsoft strikes again

From Computer World (6/3/07) link here:

In a resounding victory for Microsoft Corp., bills seeking to mandate the use of open document formats by government agencies have been defeated in five states, and only a much-watered-down version of such legislation was signed into law in a sixth state.

The proposed bills would have required state agencies to use freely available and interoperable file formats, such as the Open Document Format (ODF) for Office Applications, instead of Microsoft Corp.'s proprietary Office formats. The legislation was heavily backed by supporters of ODF such as IBM, which uses the file format in its Notes 8 software, and Sun Microsystems Inc., which sells the ODF-compliant StarOffice desktop application suite.

Audiences and Directors vs. Heirs and Copyright Laws

Should the heirs of creative artists control the interpretation and production of works written by long dead authors? Should the law allow Shakespeare's heirs to determine how the Bard's works are to be staged?

The New York Times visits this issue here.

Un tournant sur les brevets

For those who read French, economist Bernard Salanie´s views on IP.

Michael S. Malone Doesn't Like Us

He apparently thinks some of us here at this site are spoiled children and 'morons'. He makes the classic mistake of equating IP protections with "private property" - failing to distinguish between fungible IP and tangible/scarce real property without offering a cogent argument as to why they should be treated the same.

Strix.org has a response to Mr. Malone.

More Diggs At The Digg Controversy

John Dvorak has a must read article on the DIGG controversy (and the larger problem of the legal community's response to the digital era). [Hat-tip: Instapundit]

Meanwhile, I received an unintentionally humorous PR release from Spence publishing regarding the Digg situation - likening copyright disputes to 'soul tarnishing' Internet porn. Some of these people are really desperate...

For immediate release May 4, 2007

Revealing copyrighted information: No better than publishing porn? Expert says the Internet fuels our ‘anything goes' culture

The millions of teens who gave away the secret copy protection numbers on HD-DVDs on Digg.com this week were bad enough. The website's founder, however, went further by arguing that unlawfully revealing secret codes that will cost Americans millions is a "right of free speech." But Silicon Valley expert MICHAEL S. MALONE says disclosing copyrighted information is no better than publishing porn online both exploit the law, hurt others, and tarnish the soul.

Michael Malone, author of Bill & Dave: How Hewlett and Packard Built the World's Greatest Company, believes it's time for website founders the so-called "police force" of the Internet to stand up for what is honest and true.

"Mike Malone is to Silicon Valley what George Orwell was to the Spanish Civil War."

Paul A. Gigot, editor, Wall Street Journal

Questions for Michael S. Malone:

▪ Why did the Digg.com fiasco occur? What now?

▪ Technology affects almost everything these days even how candidates campaign for president. What did Bill Hewlett and Dave Packard have to do with this trend?

▪ Why do you call Hewlett-Packard the "world's greatest company"?

▪ We're hearing good things about Mark Hurd. Can he really bring HP back to the old days?

CREDENTIALS: Michael S. Malone writes a weekly column for ABC. He hosted an award-winning TV show on PBS for eight years and writes about business topics for the New York Times, Forbes, and the Wall Street Journal.

Availability: California and via telephone

Congressional patent reform?

Anne Broache at CNET News writes about the disagreements among the small and large companies over reforming the patent system link here. The big companies think it is a broken system, primarily because of the patent trolls which sit on questionable patents and extort money with the threat of litigation. The small venture firms oppose radical changes for adding uncertainty to the validity of issued patents. These differences emerged at U.S. House of Representatives Small Business Committee hearings on patents and a bill is expected to be introduced in both houses of Congress soon.

What the big companies propose is a less expensive alternative to litigation in order to review the validity of issued patents in a "post-grant opposition" process.

We will see what emerges. Several previous stabs at patent "reform" have expired for lack of support.

The IP Battlefield of the Porn Industry

It has often been said that the porn industry helps drive technological innovation (i.e., Helping to decide competing formats, etc.). Can it also help drive the legal debate over IP?

Behold the latest copyright/trademark dispute involving a gay porn film that references an Italian classic.

The response letter from the defense attorney is well worth reading.

[Hat-tip: Mathhew Heller from Courthouse news]

Tyranny of Trademark Law - Part 8 (Monopolizing Language Revisited)

Debra Opri has apparently joined the growing rank of attorneys who are smoking crack when it comes to trademark law.

Let's get one thing clear: Trademarking a phrase for general use is a flat out unconstitutional violation of free speech. Are Opri and Birkhead honestly arguing that is somebody uses the phrase “Goodnight my sweet baby Anna” in a book, film, or any other creative work, then that person must pay off Birkhead or risk being hauled into court??

Trademark serves a useful and legitimate purpose when it is used to identify a specific good or service. For instance, if Birkhead sold baby cribs with the brand name “Goodnight my sweet baby Anna”, it is perfectly legitimate to prevent other crib competitors from using that name. This has nothing to do with principles of monopoly. It is simply a necessary tool for consumer protection.

With that said however, it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Coke is a legitimate trademark to identify a cola brand. Are Opri and her ilk seriously arguing that I have to get permission from the Coca-cola company if I write a book where I have a character say, “I'd like a Coke, please.”? Surely you see the ridiculous implications here. The Supreme Court has criticized this attempt to abuse trademark law by claiming it as "mutant" form of copyright protection. However, this hasn't prevented special interests from trying to re-enforce their monopoly over language and communication.

Paris Hilton trademarking “That's hot!”? Pat O'Reilly trademarking “Three-peat”?? Donald Trump trademarking “You're fired!”??? These people have simply wasted their time and money by listening to attorneys who simply don't know what they are talking about.

Meanwhile, if there are any artists out there who can demonstrate that they have published creative works using these “trademarked” phrases, please let me know. I will be happy to publicize your work on this blog and provide free legal defense if you are threatened.

Part 7 of Tyranny of Trademark law here.

[Update as of 4-2-07]: Larry Birkhead has issued a fascinating message on his webpage over at LarryBirkhead.net -

TRADEMARKS: I have never requested a trademark, signed or filled out any paperwork on a trademark relating to Anna Nicole Smith, and the saying "Goodnight My Sweet Anna Baby." The form was filled out by another individual on my behalf. The form was not reviewed or approved by me. The media is reporting that they have seen a copy of the form, please send me one as I have asked for a copy and never have received it. It does not have my signature or authorization, I am far too busy working on my fight for my daughter Dannielynn, to worry about things like trademarking sayings for use in movies, etc.

**In other words, I will seek to have this trademark withdrawn or cancelled on the grounds it was not approved by me.**

So Birkhead is claiming that this was done "by another individual on [his] behalf" - apparently without his consent or approval. Was he referring to attorney Debra Opri? It's impossible to know for sure. However, we do know that Opri was fired by Birkhead recently and that Opri has engaged in Gloria Allred-style media saturation overreach in trying to promote her own name. This would certainly fit the profile of an overzealous entertainment attorney who tries to make outrageous claims on intellectual property to the detriment of the client. But I'll wait for more facts to come in.

Whoever tried to make that trademark registration, it is utterly scandalous even by the standards of the Anna Nicole Smith saga.

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Most Recent Comments

The right to rub smooth using a hardened steel tool with ridges Finally got around to looking at the comments, sorry for delay... Replying to Stephan: I'm sorry

Let's See: Pallas, Pan, Patents, Persephone, Perses, Poseidon, Prometheus... Seems like a kinda bizarre proposal to me. We just need to abolish the patent system, not replace

The right to rub smooth using a hardened steel tool with ridges I'm a bit confused by this--even if "hired to invent" went away, that would just change the default

Do we need a law? @ Alexander Baker: So basically, if I copy parts of 'Titus Andronicus' to a webpage without

Do we need a law? The issue is whether the crime is punished not who punishes it. If somebody robs our house we do

Do we need a law? 1. Plagiarism most certainly is illegal, it is called "copyright infringement". One very famous

Yet another proof of the inutility of copyright. The 9/11 Commission report cost $15,000,000 to produce, not counting the salaries of the authors.

WKRP In Cincinnati - Requiem For A Masterpiece P.S. The link to Amazon's WKRP product page:

WKRP In Cincinnati - Requiem For A Masterpiece Hopefully some very good news. Shout! Factory is releasing the entire series of WKRP in Cincinnati,

What's copywritable? Go fish in court. @ Anonymous: You misunderstood my intent. I was actually trying to point out a huge but basic

Rights Violations Aren't the Only Bads I hear that nonsense from pro-IP people all the

Intellectual Property Fosters Corporate Concentration Yeah, I see the discouragement of working on a patented device all the time. Great examples

Music without copyright Hundreds of businessmen are looking for premium quality article distribution services that can be

Les patent trolls ne sont pas toujours des officines

Les patent trolls ne sont pas toujours des officines

Patent Lawyers Who Don't Toe the Line Should Be Punished! Moreover "the single most destructive force to innovation is patents". We'd like to unite with you

Bonfire of the Missalettes!

Does the decline in total factor productivity explain the drop in innovation? So, if our patent system was "broken," TFP of durable goods should have dropped. Conversely, since

Does the decline in total factor productivity explain the drop in innovation? I wondered about TFP, because I had heard that TFP was increasing. Apparently, it depends on who

Music without copyright I do agree with all the ideas you have presented in your post. They are very convincing and will