Archive for the ‘Intellectual Property’ Category
Another Way to Understand Twilight and Authors
posted by Deven Desai
Apparently Stephenie Meyer, the author of the Twilight series, started writing a version of the series from a different character’s (Edward’s) point of view and the early, incomplete draft was leaked onto the Internet. Jacqui Lipton’s post about Stephenie Meyer’s “reaction to the unauthorized release” of her partial draft reveals another way to think about what is going on here. I followed the link to Ms. Meyer’s post about the problem. I was quite surprised to see that Ms. Meyer has posted the draft on her web site while also expressing her view about reading the draft:
I’d rather my fans not read this version of Midnight Sun. It was only an incomplete draft; the writing is messy and flawed and full of mistakes. But how do I comment on this violation without driving more people to look for the illegal posting? It has taken me a while to decide how and if I could respond. But to end the confusion, I’ve decided to make the draft available here (at the end of this post). This way, my readers don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives you further insight into Edward’s head and adds a new dimension to the Twilight story. That’s what inspired me to write it in the first place.
Why post the draft? One could simply ask readers not to read the draft floating around the Internet. Note that Ms. Meyer explicitly does not want to drive people to the unauthorized work. To me this move seems like a way to re-capture the attention that might have gone the sites with the download. In that sense, she may be using her reputation and attention power to undercut the benefits that may flow from unauthorized distribution. Of course there may be sales problems here as some may have been willing to pay even for the rough draft. But that idea probably does not cut off the usual claim that leaking will harm the final market. I would be surprised if those who read the early manuscript will not be more than happy to buy the final draft. In other words, the law often claims that the harm in such leaking or copying is that the unauthorized version is a substitute for the full work which I don’t think is the case.
To be clear, I think Ms. Meyer doesn’t want people to read the draft. But faced with the draft being out there, her response is simply a wise strategy. She tells her fans 1) Don’t read it 2) If you have to read it, read it from my site, 3) Reading from my site is a way to stay “honest” and not “sacrifice” (I am not sure what is being sacrificed but I think it is integrity or loyalty to the author) which means not fueling those who are taking value away from her.
There is an extra point here. When Ms. Meyer says she can’t continue with the book, she is giving honest information to her fans: certain acts (i.e., unauthorized copying and distribution of her work) upset her. In fact, they upset her enough that she will not finish the work in question. I don’t think this point is a threat. And, regardless of motivation, the move tells fans how she wants to interact with them. Insofar as there is relationship with her fans, Ms. Meyer has communicated what she expects. A Rebecca Tushnet pointed out in the comments to Jacqui’s post, there are already “over 100,000 Twilight stories–some of them from Edward’s perspective–available at fanfiction.net. How Ms. Meyer feels about those stories may differ from how she feels about her draft being distributed without permission. So as Jacqui points out this one is personal, but I think it may also be professionally wise.
P.S. Those interested in more on how reputation and attention will be a key asset in an online world may want to read my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System.
October 22, 2009 at 6:46 am
Tags: attention, copyright, reputation, trademark, Twilight
Posted in: Intellectual Property, Technology
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Academic Books, Non-Academic Books, BitTorrent, and Google’s Brand Power
posted by Deven Desai
D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.
I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.
The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?
Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.
Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.
As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.
October 12, 2009 at 7:40 am
Tags: Antitrust, DIY scanner, Goog, Google, Google Book Settlement
Posted in: Google & Search Engines, Intellectual Property, Technology, Web 2.0
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Google = ICANN?
posted by Deven Desai
One way to think about the Google Book Deal is that Google will end up as the super-gateway to books. It will in effect be the ICANN central authority of online books. So when Amazon and others have objected to Google’s claim that it will let everyone play in its sandbox, they are smart. No company should want to be a reseller (registrar in domain name terms). Insofar as one is competing with Google, who may also sell books, having to go through Google, the competitor, is undesirable to say the least. As the D is for Digital conference highlights, the way non-U.S. interests are not well-covered and represented is a problem. Insofar as the class action process is hijacking these international and domestic interests, the deal could be understood as an instance of arrogant law making with problems analogous to what one finds in Internet governance matters.
October 9, 2009 at 6:51 am
Tags: Google, Google Book Settlement, ICANN
Posted in: Google & Search Engines, Intellectual Property
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Danger Will Robinson: Google Book Deal Is at DEFCON 2
posted by Deven Desai
The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.
First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.
With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.
Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”
More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?
And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.
October 8, 2009 at 2:59 pm
Tags: Google, Google Book Settlement, Registry
Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology
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Two birds, one stone
posted by Kaimipono D. Wenger
Howto: Fight anorexia and associated body image disorders, plus combat DMCA abuse — all in one handy blog post. (In which Cory Doctorow eviscerates the weak C&D letter asking BoingBoing’s ISP to remove a bizarrely photoshopped image of a mutant anorexic model.)
Excellent multitasking, folks. In future DMCA smackdowns, Cory will cure cancer, save the rainforest, and abolish the designated hitter rule.
(Image: Wikicommons)
October 6, 2009 at 6:36 pm
Tags: anorexia, boingboing, dmca, fair use
Posted in: Feminism and Gender, Intellectual Property
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Is “Coke” a Generic Mark?
posted by Gerard Magliocca
Here’s an issue that bugs me every time I teach genericism in trademark law. As you may know, if a brand name becomes the word of choice to describe the actual product (e.g., aspirin or thermos) then the trademark rights lapse because allowing one firm to hold a monopoly over such a word would put competitors at a huge disadvantage.
I wonder why “Coke,” which is a registered trademark of Coca-Cola, has never been challenged on this basis. Many people use “Coke” to mean “cola,” even though there are other kinds of cola (e.g. Pepsi and R.C.). Indeed, in some parts of the country “Coke” is commonly used to mean “soda.” And how often do you find yourself at a restaurant asking for a “Coke,” being asked “Is Pepsi OK?” and answering “Fine, I don’t care.” This would suggest that people think of “Coke” and “cola” as interchangeable
Now obviously there are people who do express a strong preference for Coke and swear up and down that it’s better than other kinds of cola. The question is how many people are in this camp and is that enough to justify giving “Coke” trademark protection. Anyone know of any empirical data on this?
September 29, 2009 at 10:15 am
Posted in: Intellectual Property
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Misappropriation and William Randolph Hearst
posted by Gerard Magliocca
While reading a biography of Hearst, I came across something I did not know about International News Service v. Associated Press, the 1918 Supreme Court decision that established the misappropriation doctrine. The case was brought by AP, which claimed that INS (a rival wire service) was reprinting its news reports about the fighting during World War I verbatim and without attribution. The Court held that this behavior was unlawful because the AP had “quasi-property” rights in their dispatches. When I teach this case, the usual takeaway is that INS was “free-riding” on the AP because it was cheaper to borrow than to have their own correspondents in Europe to cover the war.
Here’s the missing part. INS was Hearst’s wire service, and Hearst was strongly anti-British and opposed America’s entry into the War. Eventually, the British Government kicked his reporters out of the country because they were deemed hostile propagandists. Thus, Hearst could not cover the war without borrowing from the AP. A little more imagination could lead to the conclusion that the Court’s holding in INS was a form of punishment for Hearst’s political views — a kind of wartime censorship — but I do not yet have any direct evidence for that interpretation.
September 21, 2009 at 5:32 am
Posted in: Intellectual Property
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More Python, Fair Use, and Attribution
posted by Deven Desai
So I had my iTunes open and on shuffle yesterday when Monty Python’s “Finland” came on. That was what prompted me to check YouTube for Python offerings. Now the Python chaps have offered their own channel. This video has the usual Python cheek as they talk about YouTube, being ripped off, and the open plea that viewers buy the products after they enjoy them. The clip also touts the troop’s interest in showing the clips as they wanted them to be shown and in high quality.
Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and offer what they see as the best or most in demand clips in a branded area. Then again, they may have decided to go after the other posters too. And to think this train of thought all started in Finland. Finland? Yes, because I could take a CD, put into MP3 format, and listen to “Finland” as a shuffle tune. But wait. There’s more! The devil you say. No, really.
Check out the clip for Finland below. It is a good quality stream of the music. It is funny and adds a fair amount of creativity. It attributes the visual work and the software to make the work. It also acknowledges Python as the source of the music. In addition, it has embedded ads to allow a viewer to buy the song from iTunes or Amazon. Now given all the new works, Python’s failure to offer a similar video (even if they did the video is a new work albeit one needing the song to make much sense), AND the ads is it fair use? After all YouTube and the poster probably take a cut, as would the seller, but as the Python folks acknowledge they too are giving access to and enjoyment of their clips away for free with the plea that people buy their work. As my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System argues these facts present confusing situations for intellectual property. Sharing, attribution, some control, encouraging purchases, remixing, and more can all be seen in my encounter with Finland which may be my new personal metaphor for IP. Watch the video and tell me what you think, fair use, attribution, new work, infringement, all of the above?
September 9, 2009 at 1:47 pm
Tags: copyright, fair use, Finland, Monty Python
Posted in: First Amendment, Humor, Intellectual Property
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Copyright Irony, Of Royalty Boards and Google Book Deals
posted by Deven Desai
Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.
It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?
I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.
To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:
The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.
My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.
As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.
Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.
September 4, 2009 at 11:33 am
Tags: class action, copyright, Google Book Settlement
Posted in: Constitutional Law, Google & Search Engines, Intellectual Property, Technology, Web 2.0
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Tiny (Or Rather Shiny?) Bubbles: Apple Trademarks Dialogue Bubbles?
posted by Deven Desai
As Don Ho (and others) have sung:
Tiny bubbles
In the wine
Make me feel happy
Ah, they make me feel fine
Those tiny bubbles
Make me warm all over
With a feeling that I’m gonna
Love you till the end of time
The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble means Apple! Do the green bubbles qualify too? Yet again I am left wondering what’s a cubit and contemplating a drink with tiny, shiny bubbles.
So I leave you with Don Ho and Tiny Bubbles.
September 3, 2009 at 8:53 am
Tags: Apple, apps, Don Ho, Tiny Bubbles, trademark
Posted in: Intellectual Property, Technology, Web 2.0
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UCLA Law Review 56:6 (August 2009)
posted by UCLA Law Review
Volume 56, Issue 6 (August 2009)
Articles
Overcoming Overdisclosure: Toward Tax Shelter Detection (pdf)
Joshua D. Blank
First Amendment Enforcement in Government Institutions and Programs (pdf)
Gia B. Lee
Ezra Pound’s Copyright Statute: Perpetual Rights and the Problem of Heirs (pdf)
Robert Spoo
Comments
Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements (pdf)
Jessica Wang
Narrowing the Definition of “Dwelling” Under the Fair Housing Act (pdf)
Karen Wong
Addressing Youth Bias Crime (pdf)
Jordan Blair Woods
September 2, 2009 at 3:17 pm
Posted in: Constitutional Law, Contract Law & Beyond, Corporate Law, Intellectual Property, Law Rev (UCLA), Race
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Update to the Tale of the Ph.D. Rapper
posted by Michael Kang
About a week ago, the New York Daily News reported a happy tale of Dr. Roxanne Shante, a former rapper who won a legal battle to have her record label pay for a Ph.D. education at Cornell University. Deven blogged briefly about the story here at Concurring Opinions, and the blogosphere was generally pleased by the notion of a young artist winning her fight for an education against a corporate bully. But now Slate is reporting that Shante by her own admission never received a Ph.D. from Cornell and that many other important elements of the story are untrue. Too bad. It was a great story but apparently one full of factual inaccuracies that undercut it completely.
September 2, 2009 at 11:49 am
Posted in: Intellectual Property, Media Law
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Seeing With Your Tongue: No Really
posted by Deven Desai
Not much law here, yet. Researchers have taken theoretical work begun decades ago and developed a “brain port,” a device that uses technology to allow people to reorganize how they process sensory data. In the example below, blind people are able to see images. The device takes visual input, processes it, sends impulses to a pad that sits on someone’s tongue, and then the person is able to see some images. It takes quite a bit of training and in some cases folks have been able to use the device such that they actually re-train the brain and can reduce use of the device. Yes in a sense they have “rewired” their brain. This advance is just cool. The video also explains that the advances in this field trace to Professor Paul Bach-y-Rita who apparently had to overcome a fair amount of resistance in his fields of neurobiology and rehabilitation, because he was challenging many accepted beliefs regarding the way the brain works and more (all hail Kuhn). Will the law become involved in this area? It probably already is insofar as patents and copyright are being used to govern the technology. In addition, as I have noted before, the advances in embedded or sensory enhancing devices raise numerous questions regarding privacy, the ownership of data, bioethics, and research ethics. So welcome to the future and take a look at the video. It really is amazing and wonderful that scientists have made these breakthroughs. At the very least, anyone questioning how basic research can lead to unforeseen benefits should pause after seeing this work.
August 28, 2009 at 6:01 am
Tags: Privacy, sensory substitution, singularity
Posted in: Health Law, Intellectual Property, Privacy, Privacy (Medical), Technology
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Google, Glenn Beck, and AP: Are Results Being Squashed?
posted by Deven Desai
So some of you may have heard that Glenn Beck has managed to upset advertisers by calling President Obama a racist. I don’t have much to say about Beck. I was more interested in the advertiser reaction. I saw the article on Yahoo! but wanted a more stable URL. So I copied the AP news story title and pasted into the Google. Here are the results.
Notice how the results indicate that there are “365 related articles”? Usually I click that and indeed see a rack of articles. Today, however, this is what happened when I clicked on the link promising a cornucopia of news stories:
Just one result! And it is only to AP page hosted by Google! (not sure whether Google is hosting all or most AP content, but it looks fishy). Maybe everyone was just running the AP story, but maybe those other outlets would have had more information of interest. Could it be that AP and Google are somehow in bed with each other on these results. (For all I know that is the case, and I missed that memo as I have been getting an article out the door and cleaning up a book chapter). Is this all part of AP’s claims regarding the ability to control its copy?
In short, watch the Google. It is creepy at times.
UPDATE: A quick commenter noted that the right side has a link that shows all the results “Sort by date with duplicates included.” THANKS!
I did not see that. Still I seem to recall that the related articles page used to have many of the redundant results. So the new approach could be helpful and efficient, but I wonder whether this new streamlined version of results applies to all news or just AP.
Furthermore, I throw open the idea that people may prefer the redundancies at the outset. That way they can go (as I did when I was on the web results page) to a source such as ABC or some other source one may trust or that one hoped would provide more than the AP coverage (be it vitriol over the boycott or praise for it).
August 24, 2009 at 2:57 pm
Tags: AP, Glenn Beck, Google
Posted in: Google & Search Engines, Intellectual Property
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Saved By A Music Contract? Artist Invokes Clause and Gets Her PhD
posted by Deven Desai
As anyone who follows the music industry should know, the history of record labels, artists, and exploitation is long and a bit dirty. K.J. Greene has argued that the problems of race and music business practices should be part of the reparations debate. Today, however, it appears that a pioneer of hip-hop, Dr. Roxanne Shante, has her PhD from Cornell because of her recording contract. Now before one thinks that all was close and loving, know that Dr. Shante had to fight with the record label for quite some time before it honored the clause which stated that the label would fund her education for life. Luckily the Dean at Maymount Manhattan College allowed then Ms. Shante to attend the college while the bills were still sent to Warner Music and being debated by the company. Although there is a silver lining of sorts here, it is sad that Dr. Shante sold more than 250,000 records, saw little of the money she generated for the label, and left the business because “‘Everybody was cheating with the contracts, stealing and telling lies,’ …And to find out that I was just a commodity was heartbreaking.’”
As general take away, it seems that any corporate entity that is taking on a young talent in sports, music, or any other field, ought to consider such a clause as a good thing. Agents should at least insist on it. The odds are already stacked against many of these talents. In some cases they are giving up education time to help a sports program. In others, like Dr. Shante’s, the talent may “be a teenage mom, come from the projects, and be raised by a single parent, so as the article about her put it, the clause may be “a throwaway” because no thought it would come to anything. In other words, I hope these clauses persist and even appear more often. It seems quite fair and an oddly (or really unfortunately) low-risk bet for labels and other industry players in these deals.
You can go here to hear the entire song “Roxanne’s Revenge.” (imeem only had the 30 second clip for embedding).
August 23, 2009 at 12:50 pm
Tags: copyright, music industry, Reparations
Posted in: Intellectual Property, Media Law
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Opening Up the Law: Pacer, CITP, and the RECAP the Law Project
posted by Deven Desai
As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.
Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”
In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.
CITP’s Harlan Yu explains:
RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.
In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.
There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.
August 14, 2009 at 6:06 am
Tags: access to knowledge, access to law, open source, PACER, RECAP
Posted in: Civil Procedure, Constitutional Law, Cyberlaw, Intellectual Property, Sociology of Law, Technology, Web 2.0
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Who Knew? Patents Don’t Really Promote the Useful Arts
posted by Deven Desai
Andrew Torrance and Bill Tomlinson have a paper out that challenges “assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems.” The paper, Patents and the Regress of Useful Arts, “employ[s] a multi-user interactive simulation of patent and non-patent (commons and open source) systems (”The Patent Game”), this study compares rates of innovation, productivity, and societal utility.” In other words, the two have taken the idea of a Sim and created PatentSim “to simulate the innovation process in one of three scenarios: a patent system, a “commons” system with no patents, or a system with both patents and open source protection.” In the words of Johnny Carson wild, weird stuff, and quite fascinating too. Under their model and testing system it appears “that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection.”
This post at Against Monopoly has a nice summary of some of the major articles on the topic of patents and innovation. Which reminds me, folks interested in empirical research should take a read of the paper too as it is trying to fill a gap by testing the innovation assumption in patent theory.
Image: World’s first patent for a golf tee; British patent #12941 of 1889, by Bloxsom & Douglas
Source: WikiCommons
The image size is reduced for our site, but go to the original to see/read the patent.
August 13, 2009 at 6:57 am
Tags: empirical studies, golf tee, innovation, patents, simulators
Posted in: Empirical Analysis of Law, Intellectual Property, Technology
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Weird Law Day: Big Time Jewel Heists and MS Word Enjoined
posted by Deven Desai
Yesterday I saw an article about a jewelry heist in London where two men in nice suits got away with $65 million of merchandise. The weird part to me was that the store had a similar event in 2003 where 23 million pounds worth of jewels were taken, and more recently in 2007 a branch suffered a robbery again with well-dressed, and this time chauffeured, men stealing 10 million pounds in gems. So that makes me wonder whether the rich really do trust those who seem rich (i.e. Madoff types) and then get ripped off. In addition, who is insuring and/or protecting these stores? Right now neither can be happy. Still that is small compared to the Microsoft news.
Ah, Texas! Or to be more precise the U.S. District Court for the Eastern District of Texas, home to patent fun like no other place in the country (although I recall someone is showing how other district courts are now competing with E.D. Texas for the patent crown). It seems that Mighty MS and its Word program has been found to violate a patent. According to CNET “In Tuesday’s ruling, Microsoft was also ordered to pay an additional $40 million for willful infringement, as well as $37 million in prejudgment interest. The order requires Microsoft to comply with the injunction within 60 days and forbids Microsoft from testing, demonstrating, or marketing Word products containing the contested XML feature.” The order allows MS to take two months to appeal, settle, or work around the patent problem.
I wonder whether the injunction would require deauthorizing the sold versions? In addition, with the Blackberry case I think there was a carve out for the government because it relied on the system so much. Given Word’s dominance, I would hope that any court order that might threaten how people use already purchased software considers the impact that would have on millions of people. I am not saying that such a result is in the works or required by the current injunction. But if an injunction requires cutting off support or features, people may find that lose access to their works. Again whether the technology at issue would require such a result is unclear to me. Then again, as I argue in Property, Persona, and Preservation, as we move into a world where software and technology providers can update or cut-off access to one’s creations, such a result is not as impossible as it sounds. Can you say Kindle?
August 12, 2009 at 2:58 pm
Tags: jewelry, Microsoft, MS Word, patent, robbery
Posted in: Criminal Law, Intellectual Property
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Great Podcast on Shepard Fairey v. The Associated Press
posted by Daniel Solove
Professor Doug Lichtman (UCLA Law School) has a terrific new episode of IP Colloquium. The show involves a discussion of Shepard Fairey v. The Associated Press, a case involving a copyright dispute about the HOPE poster of Barack Obama. I blogged about the case here and here.
Doug was able to get Mark Lemley (Shepard Fairey’s lawyer) and also Dale Cendali (the attorney who represents the AP) to come on the show and talk with him about the case. This was the first time the AP spoke publicly about the case in the news media. Also on the show is Ken Richieri, General Counsel at the New York Times.
Lawyers who listen to IP Colloquium podcasts can earn free CLE credit.
The podcast is well worth a listen — a great sophisticated discussion of fair use.
August 11, 2009 at 7:52 pm
Posted in: Intellectual Property
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Google Books and the Limits of Courts
posted by Frank Pasquale
The Google Books litigation has inspired a lot of commentary on the web. As an early October fairness hearing approaches, a consensus appears to be building: the proposed settlement is too important and complex for a court to approve in its current form. Agent Lynn Chu has complained that “No one elected the[] ‘class representatives’ to represent America’s tens of thousands of authors and publishers to convey their digital rights to Google.” Pamela Samuelson, by all accounts one of the leading academics in American intellectual property law, has this to say:
The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era [emphasis added]. . . . The Authors Guild has about 8000 members. OCLC has estimated that there are 22 million authors of books published in the U.S. since 1923 (the year before which books can be presumed to be in the public domain). Jan Constantine, a lawyer for the Authors Guild, is optimistic that authors and publishers of out-of-print books will sign up with the Registry, but there are many reasons to question this.
For one thing, the proposed settlement agreement implicitly estimates that only about 750,000 copyright owners will sign up with the Registry, at least in the near term. Second, many books are “orphans,” that is, books whose rights holders cannot be located by a reasonably diligent search. Third, many easily findable rights holders, particularly academic authors, would much rather make their works available on an open access basis than to sign up with the Registry. Fourth, signing up with the Registry will not be a simple matter, since the Registry won’t just take your word for it that you are the rights holder. You are going to have to prove your ownership claim.
The non-representativeness of the class is one ground on which it is possible to object to the proposed Book Search settlement. Other reasons to object or express concerns will be explored in subsequent articles. Objections must be filed with the court by September 4, 2009.
A suitable platform for hosting public discussions of the deal only launched a few weeks ago, thanks to the diligent efforts of James Grimmelmann (who is also organizing an academic conference on the issue in October). The proposed settlement raises a number of issues, which may only be addressed by extensive regulation of the project — or a public alternative dedicated to serving those marginalized by the current proposal.
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August 11, 2009 at 9:39 am
Posted in: Antitrust, Economic Analysis of Law, Google & Search Engines, Intellectual Property, Law and Inequality, Privacy, Uncategorized
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