In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in [...]]]> Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission.  If people wanted to sell merchandise depicting a building, they could do so freely.  Now that isn’t true, though in practice most [...]]]> Much like Jason in “Friday the 13th,” the idea of having a federal statute to protect fashion designs never dies. I’ve posted before about why I think that kind of measure is unnecessary and would be a bad idea, but Professor Jeannie Suk had an op-ed in the NY Times on Sunday arguing once again for this proposal.

One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission.  If people wanted to sell merchandise depicting a building, they could do so freely.  Now that isn’t true, though in practice most buildings have a copyright value of zero.

Here’s are some questions.  Is architecture better as a result of these new copyright incentives?  Or was this just a measure that redistributed wealth from average folks to a few well-known architects?  The latter isn’t a compelling rationale and, in my view, that’s all that would happen if Congress enacts fashion design protection.

(BTW, the Super Bowl is coming to my hometown, hence I thought that the photo of Mrs. Brady was appropriate.)

Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees.  To retain a patent, a firm has to pay a fee to the Patent Office every couple of years.  In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.

The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material).  Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights.  Many copyrights would [...]]]>  

Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees.  To retain a patent, a firm has to pay a fee to the Patent Office every couple of years.  In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.

The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material).  Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights.  Many copyrights would not be renewed, either because the owners would not think it worthwhile or because there would be nobody to pay the fee for an orphan work.  So in addition to raising some revenue, material would enter the public domain more quickly and difficulties created by unclear title would be resolved in favor of free access.

Now I know some people will argue that this violates the Berne Convention, but I doubt that it does.  Would it create some inconsistency between our copyright law and European copyrights?  Yes.  But a harmonized system that is poorly structured is not, in this instance, superior to a diverse one with better policies here.

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. [...]]]> Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, [...]]]> It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)

The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:

increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.

But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.

(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)

Cross-posted at Info/Law.

The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced.  A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake.  Protecting the [...]]]> One myth should be exploded about the Court’s analysis of the relationship between the Copyright Clause and the First Amendment. In both Eldred and Golan, Justice Ginsburg says that heightened scrutiny of copyright statutes on free speech grounds is not required because the “idea/expression” dichotomy and the “fair use” doctrine protect the First Amendment interest. As long as Congress does not disturb those “traditional contours” of copyright protection, there isn’t a constitutional problem.

The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced.  A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake.  Protecting the public domain from congressional poaching would be much more effective, but that just went by the boards.

Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation [...]]]> In my Boston Review piece on SOPA, I mentioned a sad story about a drawn-out copyright lawsuit’s effect on an entrepreneur. I should have also brought up a whole book on the problem of IP overenforcement, Jason Mazzone’s Copyfraud. Important on the day it was published, it’s particularly salient now that Congress is considering expanding the powers of copyright and trademark owners.

Mazzone argues that overenforcement of copyright is rampant:

False copyright notices appear on modern reprints of Shakespeare’s plays, Beethoven’s piano scores, greeting card versions of Monet’s Water Lilies, and even the U.S. Constitution. Archives claim blanket copyright in everything in their collections. Vendors of microfilmed versions of historical newspapers assert copyright ownership. These false copyright claims, which are often accompanied by threatened litigation for reproducing a work without the “owner’s” permission, result in users seeking licenses and paying fees to reproduce works that are free for everyone to use.

Mazzone’s book highlights an underappreciated problem of rights fabrication that threatens to become a form of private legislation. If the intellectual property system is to genuinely promote innovation and creativity, it will need to address the issues he describes. It should certainly do so before adopting the types of intrusive remedies proposed under SOPA/PIPA. Mazzone’s policy recommendations are wise and often original, both recognizing and building on a large law review literature on IP reform. As Mazzone has argued:

Congress should amend the Copyright Act to allow private parties to bring civil causes of action for false copyright claims. Courts should extend the availability of the copyright misuse defense to prevent copyright owners from enforcing an otherwise valid copyright if they have engaged in past copyfraud. In addition, Congress should further protect the public domain by creating a national registry listing public domain works and a symbol to designate those works.

Mazzone presents a level-headed and persuasive account of the policy changes that could improve matters. Copyfraud is a wonderful read and a great contribution to the IP literature. It’s recommended reading for anyone wondering how such an imbalanced legal regime arose.

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, [...]]]> I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

Being there are not a whole lot of anthropologists of my ilk ( as I like to joke, I am an “arm chair anthropologist” who sits in front of her computer to study the high tech digerati of the west), I often get asked how or why I came to the study hackers, many people assuming that I had some hacker [...]]]> I would like to thank Danielle Citron for the invitation to pen some thoughts here on Concurring Opinions, and letting an anthropologist enter this legal arena. For my first post, I thought I would ease in slowly and give a taste of my work on hackers, geeks, and digital activism along with some of the themes and issues I will likely explore over the month.

Being there are not a whole lot of anthropologists of my ilk ( as I like to joke, I am an “arm chair anthropologist” who sits in front of her computer to study the high tech digerati of the west), I often get asked how or why I came to the study hackers, many people assuming that I had some hacker relative in my life or was myself a budding young hacker, both of which were not the case. Fitting to this blog, I got to hackers via the law. In 1997, when my friend—an avid free software developer—found out I had a keen but personal interest in patents and access to medicine, he sat me down to tell be about this legal concept called the “copyleft.” It was one of those moments that I still remember so vividly as I was nothing but floored, astonished, excited, and puzzled, especially when I learned of the full depth and extent of  this legal alternative that had been dreamed up, not by lawyers, but by geeks and hackers.

Over the ensuing year, which was my first year at graduate school, I delved so often and deeply into the world of free software, it was clear that I had to change topics or else I ran the risk of never finishing my degree. Alhough I routinely encountered skepticism—and still do—I felt like I struck anthropological gold: there was too much to explore, prod, and examine so at the time, I took a one hundred and eighty degree u-turn and have never returned.

My work on free software spans various topics, from the prevalence of humor among hackers to the multi-year legal battles over the right to write and release source code in the face of new regulations such as the Digital Millenium Copyright Act. Most broadly, I use free software to examine the cultural life of liberalism. By liberalism, I do not mean what may first come to mind: a political party that in Europe is usually associated with politicians who champion free market solutions, or in the United States, a near synonym for the Democratic party; nor is it just an identity that follows from being a proud, card-carrying member of the ACLU (American Civil Liberties Union) or the Electronic Frontier Foundation, although these certainly can be markers.  I take liberalism to embrace historical and present day moral and political commitments and sensibilities that should be familiar to most readers of this blog: protecting property and civil liberties, promoting individual autonomy and tolerance, securing a free press, ruling through limited government and universal law, and preserving a commitment to equal opportunity and meritocracy. These principles, which vary over time and place, are realized institutionally and culturally in various locations at different times, perhaps the most famous of these being the institutions of higher education, market policies set by transnational institutions, and the press, but are also at play on the Internet and with computer hackers, such as with those who develop free software, who have an accentuated commitment to free speech and make free speech claims to question what many see as not only the use but abuse of copyrights and patents. In one post I hope to examine and explore what it might mean to study liberalism from the vantage point of culture and hackers.

As I moved forward with my work on hackers it become increasingly clear that there was not only so much about this world that lay untouched and untapped (I think we know more about Papua New Guinea than hackers) but there are also many misperceptions and miconceptions shrouding our understanding of hackers due to existing literature and fantastical media representations. Part of the problem is that differences are often whitewashed away in favor of coming up with some simple and sanitized story about some unitary group of hackers. It is true that hackers can be grasped by their similarities: they tend to value a set of liberal principles: freedom, privacy, and access; they tend to adore computers—the glue that binds them together; they are trained in specialized and esoteric technical arts, primarily programming, system administration, security research, and hardware hacking; some gain unauthorized access to technologies, though the degree of illegality greatly varies; foremost, hacking, in its different forms and dimensions, embody an aesthetic where craft and craftiness tightly converge and thus tend to value playfulness, pranking,  and cleverness and will often perform their wit through source code or humor or even both: funny code.

Hackers, however, evince considerable diversity and are notoriously sectarian, constantly debating the meaning of the words hack, hacker, and hacking. I myself have been caught in the line of fire when hackers launch these accusations (“No, Biella, hackers are ‘breakers,’ not those who make ‘cool LED throwies in a hackerspace;” ‘No Biella, please get there is a distinction between ‘hackers and crackers’..”), so I will also be writing a post on this topic.

Most of my work on free software is completed, tucked and hidden away in academic journal articles read by perhaps a dozen or less people every few years, if even that many, and forthcoming in full-bodied form in a Creative Commons licensed book with Princeton University Press in the fall of 2012. But I am have become much more known for that which I once thought of as my niche, boutique side project: Anonymous. And it was so because for a a long period of time it existed as an esoteric, marginal sort of phenomenon: quite interesting, especially the activist manifestations (as Anonymous can be used for pure trolling) but over the last year exploded proliferated, and mushroomed in ways that make it very hard to pin down. In contrast to researching free software, which was relatively easy, working on Anonymous has tested my resolve so many times; they are truly difficult to study, for all sorts of reasons, some of which I will explore in a couple of posts I plan on dedicating to them as well.

The Yale Law Journal Online has published the third essay in a series on Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 print issue of The Yale Law Journal. In his print-issue article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Masur’s model, the cases that drive this process are direct appeals to the Federal Circuit from PTO denials of patent applications.

In the first response in the series, Arti K. Rai analyzed forces that might slow [...]]]>

The Yale Law Journal Online has published the third essay in a series on Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 print issue of The Yale Law Journal. In his print-issue article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Masur’s model, the cases that drive this process are direct appeals to the Federal Circuit from PTO denials of patent applications.

In the first response in the series, Arti K. Rai analyzed forces that might slow or reverse the process of “patent inflation,” including executive-branch actors and industry players who wield a deflationary influence over patentability standards. In the second response in the series, Lisa Larrimore Ouellette presented the results of a quantitative study of Federal Circuit cases and argued that, despite Patent Inflation’s emphasis on direct appeals from the PTO to the Federal Circuit, “patent inflation” may be attributable largely to infringement suits that reach the Federal Circuit from U.S. district courts. The third essay in the series, Inflation Indicators, is Masur’s sur-reply to Rai and Ouellette. In his sur-reply, Masur argues that the evidence in Rai’s and Ouellette’s responses is not only consistent with Patent Inflation, but that it indeed bolsters the theory he presented in his original article.

For Arti K. Rai’s response, Who’s Afraid of the Federal Circuit?, please click here. For Lisa Larrimore Ouellette’s response, What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, please click here.

Preferred citation: Jonathan Masur, Inflation Indicators, 121 YALE L.J. ONLINE 375 (2012), http://yalelawjournal.org/2012/01/03/masur.html.

An Internet company has sued one of its former employees, saying the worker cost the company thousands of dollars in lost business when he took 17,000 Twitter followers with him when he left the firm.

PhoneDog LLC filed a lawsuit in July against Noah Kravitz, a writer who worked for the Mount Pleasant, S.C., company from 2006 until last year. Attorneys for the website, which reviews mobile devices like phones and tablets, said Kravitz owes them $340,000.

The company said when Kravitz resigned, he changed his Twitter name from PhoneDog_Noah to noahkravitz, and kept his 17,000 followers. The company said the followers should be treated like a customer list, and therefore [...]]]> A bizarre lawsuit by a company claiming that it owns a former employee’s Twitter followers:

An Internet company has sued one of its former employees, saying the worker cost the company thousands of dollars in lost business when he took 17,000 Twitter followers with him when he left the firm.

PhoneDog LLC filed a lawsuit in July against Noah Kravitz, a writer who worked for the Mount Pleasant, S.C., company from 2006 until last year. Attorneys for the website, which reviews mobile devices like phones and tablets, said Kravitz owes them $340,000.

The company said when Kravitz resigned, he changed his Twitter name from PhoneDog_Noah to noahkravitz, and kept his 17,000 followers. The company said the followers should be treated like a customer list, and therefore PhoneDog’s property.

PhoneDog said Kravitz should pay $2.50 per follower per month for eight months, or a total of $340,000.

The Yale Law Journal Online has published the second essay in a series of responses to Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, Lisa Larrimore Ouellette counters with an empirical study examining the numerical and doctrinal significance of direct appeals from the PTO to [...]]]>

The Yale Law Journal Online has published the second essay in a series of responses to Jonathan Masur’s article Patent Inflation, which appeared in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, Lisa Larrimore Ouellette counters with an empirical study examining the numerical and doctrinal significance of direct appeals from the PTO to the Federal Circuit. She argues that these cases are too rare—and too rarely cited—to be the main drivers of patent inflation, as Masur’s model posits. She suggests that patent infringement suits and the Supreme Court are playing a greater role than Masur’s theory acknowledges.

For the first reply essay in this series, please click here. To read Jonathan Masur’s sur-reply, please click here.

Preferred citation: Lisa Larrimore Ouellette, What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, 121 YALE L.J. ONLINE 347 (2011), http://yalelawjournal.org/2011/12/27/ouellette.html.

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers. We’ve gone from a situation where we dream up a game, we spend three years making it, we [...]]]> Back in October, Valve co-founder Gabe Newell explained the economics of video games as his company sees it. The Geekwire article is worth the read. For now, I’ll point out that he admits “We don’t understand what’s going on” and uses the language of co-creation of value, which I happen to believe is the current future as it were, to describe what the company is doing:

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers.
We’ve gone from a situation where we dream up a game, we spend three years making it, we put it in a box, we put it out in stores, we hope it sells, to a situation that’s incredibly more fluid and dynamic, where we’re constantly modifying the game with the participation of the customers themselves

The comments on piracy comport with insights from other industries:

One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates. For example, Russia. You say, oh, we’re going to enter Russia, people say, you’re doomed, they’ll pirate everything in Russia. Russia now outside of Germany is our largest continental European market. … the people who are telling you that Russians pirate everything are the people who wait six months to localize their product into Russia. … So that, as far as we’re concerned, is asked and answered. It doesn’t take much in terms of providing a better service to make pirates a non-issue.

The information on pricing is really cool. “[W]e varied the price of one of our products. We have Steam so we can watch user behavior in real time. That gives us a useful tool for making experiments which you can’t really do through a lot of other distribution mechanisms. What we saw was that pricing was perfectly elastic. In other words, our gross revenue would remain constant. We thought, hooray, we understand this really well. There’s no way to use price to increase or decrease the size of your business.”

Yet he goes on to describe how sales such as a 75% price reduction lead to a “gross revenue increased by a factor of 40.” They tested against a product they did not own and saw similar results. Then they tested free. It turns out free to play and and free work differently. His thought is that the user base matters because they value the products differently including “what the statement that something is free to play implies about the future value of the experience that they’re going to have.”

Furthermore, conversion rates shift too. Free to play often “see[s] about a 2 to 3 percent conversion rate of the people in their audience who actually buy something, and then with Team Fortress 2, which looks more like Arkham Asylum in terms of the user profile and the content, we see about a 20 to 30 percent conversion rate of people who are playing those games who buy something.”

What do all these tests mean? As Newell said, it’s unclear. That is why I could see some rather cool studies being done for this emerging area.

The Yale Law Journal Online has published the first essay in a series of responses to Jonathan Masur’s article Patent Inflation, published in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Who’s Afraid of the Federal Circuit?, Arti K. Rai argues that by overlooking deflationary institutional pressures such as workload and reputational concerns, Masur overestimates the extent to which PTO administrators seek to avoid appeals and Federal [...]]]>

The Yale Law Journal Online has published the first essay in a series of responses to Jonathan Masur’s article Patent Inflation, published in the December 2011 issue of The Yale Law Journal. In his article, Masur posits that Patent and Trademark Office (PTO) administrators will be motivated to avoid costly appeals and direct reversals by the Federal Circuit and therefore will grant more patents than they otherwise should. These grants of “boundary-pushing” patents will touch off a process of “patent inflation” whereby patentability standards grow progressively more permissive. In Who’s Afraid of the Federal Circuit?, Arti K. Rai argues that by overlooking deflationary institutional pressures such as workload and reputational concerns, Masur overestimates the extent to which PTO administrators seek to avoid appeals and Federal Circuit reversals.  In order to achieve further deflation, Rai suggests supplementing Masur’s proposed solution of using more PTO opposition proceedings with the empowerment of non-PTO players who are more wary of granting patents.

Preferred citation: Arti K. Rai, Who’s Afraid of the Federal Circuit?, 121 YALE L.J. ONLINE 335 (2011), http://yalelawjournal.org/2011/12/20/rai.html.

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information [...]]]>

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.