Thoughts on Ammori’s Free Speech Architecture and the Golan decision

posted by Brett Frischmann

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.

  February 3, 2012 at 4:38 pm  Tags: First Amendment, free speech, Intellectual Property, Supreme Court  Posted in: First Amendment, Intellectual Property, Uncategorized   Print This Post   No Comments

Stanford Law Review Online: Don’t Break the Internet

posted by Stanford Law Review

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.

  December 19, 2011 at 3:14 am  Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web  Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites   Print This Post   One Comment

The Age of Intellectual Property?

posted by Lea Shaver

Are we in the Age of Intellectual Property?

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)

If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!

Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?

I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:
Read the rest of this post »

  February 3, 2011 at 2:25 pm  Tags: access to knowledge, commons, fair use, Google, Intellectual Property, ngram, open access, public domain  Posted in: Symposium (Access to Knowledge)   Print This Post   3 Comments

Stalking About Your Generation

posted by Jonathan Lipson

Yesterday, I had the all-too-brief pleasure of sitting in on the first couple of talks at the Wisconsin Law Review’s Symposium, Intergenerational Equity and Intellectual Property, here in Madison.

Organized by my colleague, Shubha Ghosh (and starring, among others, CoOp-erator Deven Desai), the goal is important:  How do we understand the intergenerational consequences of a legal regime—intellectual property—that is strongly determined by the present, but which has significant, but under-theorized, consequences for the future?  Fights about extending the term of the Mickey Mouse copyright—or any set of long-haul rights—don’t just affect my kids, but potentially their kids, their kids’ kids, and so on.  These are, in short, really fights about intergenerational equity.

I was only able to hear Michigan’s Peggy Radin (Property Longa, Vita Brevis) and Penn’s Matt Adler (Intergenerational Equity: Puzzles for Welfarists), but as expected, both provided awesome overviews of these sorts of problems.  As Radin pointed out, intellectual property (knowledge and information law generally) always involves two types of generational problems: One is temporal (my parents, me, my kids, their kids, etc.); the other is technological (my students barely know from videotape; I will never beat my daughter at any computer game).

Adler explained that it is easy (and perhaps imprudent) to dismiss the utility of welfare economics as a tool to make these sorts of decisions.  Certainly, we might say, Benthamite sums of utils could predict little for those not in existence (the future):  what would their utility function be, really?

Yet, he observed, robust and subtle analytic models and conceptual frameworks are being developed by the Sens and Arrows of the world, and they may (if the future is bright) help develop more equitable and effective decision tools for matters with a long temporal reach.

Those who follow state politics may find this all a bit ironic. Wisconsin’s recent election was a decisive victory for Republicans, who captured both houses of the legislature and the Governor’s office on a message which may strain the state’s motto, “Forward.”

If Republicans keep their word, tax breaks for the rich and elderly will replace education and healthcare spending for the young and unborn; fossil fuel (old tech) subsidies will replace biofuel (new tech) development; and the University may have to fight to continue its path-breaking stem-cell research, certainly a way to kill both jobs in the present and medical miracles in the future. This may be good for baby boomers, but isn’t likely so hot for their grandkids.

Wisconsin’s liberals are, of course, despondent over their loss of power and position.  Yet, forecasting and discounting long-term causation are among the things that make questions of intergenerational equity  so interesting and difficult.  I doubt Newt Gingrich thought in 1994 that the Contract with America would virtually assure Bill Clinton a second term, but today the former seems to have led to the latter.   Likewise, it is certain that neither Jeremy Bentham nor Pete Townshend could have predicted the duration of their memetic contributions to today’s discussions about tomorrow.  They probably just thought it was all rock and roll.

  November 13, 2010 at 6:33 pm  Tags: Intellectual Property, intergenerational equity, Republicans, Wisconsin  Posted in: Conferences, Economic Analysis of Law, Intellectual Property, Jurisprudence, Law Rev (Wisconsin)   Print This Post   No Comments

On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights

posted by Northwestern University Law Review

This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

  September 5, 2010 at 1:15 pm  Tags: Antitrust, Constitutional Law, copyright, discrimination, financial crisis, free speech, Intellectual Property, Privacy, trademark  Posted in: Antitrust, Bioethics, Civil Rights, Constitutional Law, Corporate Finance, First Amendment, Intellectual Property, Privacy, Securities, Securities Regulation   Print This Post   No Comments

BRCA1/2 Gene Patents Invalidated: Is it Finally about the Patient?

posted by Gaia Bernstein

Earlier this week a district court in a dramatic decision invalidated BRCA 1/2 – two breast cancer gene patents held by Myriad Genetics. The Court based its decision on patent subject matter analysis holding that since the isolated DNA covered by Myriad’s patents is not markedly different from the native DNA as it exists in nature, it qualifies as a product of nature, which is not patentable subject matter.

No doubt, as commentators have noted (here and here), this decision if not overturned or limited on appeal could carry broad ramifications for the future gene patents. But, this decision signifies also a change in strategy in the efforts to restrict gene patents – a focus on the patient.

As I have written, most of the debates on gene patents addressed the way that gene patents affect genetic research – the concern that granting patents on the building blocks of genetic science will hinder the development of more complex innovations. Unsurprisingly, most academic proposals and legislative bills address the innovation problem. The effects on the patient until now took a back seat.

This lawsuit against Myriad signifies a change in that it finally places the patient and the administration of genetic testing at the center of the stage.  Although the Court’s holding focuses on patent subject matter the court dedicates a significant part of the opinion to access to BRCA1/2 genetic testing. Myriad charges about $3,000 for testing an exorbitant amount compared to other genetic tests. Furthermore, Myriad does not allow other laboratories to conduct the testing – all samples have to be sent to its headquarters in Salt Lake City. The opinion tells the stories of women who were unable to test to find out whether they carry the BRCA1/2 genes because Myriad would not accept their insurance. It recounts the ordeals of women who could not get definitive answers through Myriad’s testing and were precluded from seeking testing elsewhere. It underscores that women were unable to get a second opinion of the test results because tests are conducted only by Myriad. It also discusses the efforts of doctors and laboratories who were willing and able to offer BRCA1/2 testing but were precluded by Myriad from conducting the testing. 

  Read the rest of this post »

  April 2, 2010 at 10:22 am  Tags: genetics, healthcare, Intellectual Property, patent  Posted in: Health Law, Intellectual Property   Print This Post   7 Comments

What’s a Tweet?

posted by Jon Siegel

Twitter’s application for a trademark registration on the word “tweet” was recently rejected, which led to a discussion among some colleagues and myself as to whether the word is a generic term. The argument in favor is that the word “tweet” has become a common term, which has entered dictionaries and even the AP style guide, as the linked article shows.

A basic principle of of trademark law is that no one can trademark a “generic” term, which is to say, the common term for article or service being sold. Thus, no one could own the exclusive right to sell toothpaste under the name “toothpaste.” That would hardly be fair to competing sellers of toothpaste, and the generic term also doesn’t perform the basic function of a trademark, which is to tell consumers the source of the product, not what the product is.

Nonetheless, I would say that “tweet” is not generic. Yes, “tweet” has become a common term, but with what meaning? To me, “tweet” means, “a short message carried via the Twitter service.” It doesn’t mean, generically, “a short message,” or even “a short message carried via some social networking service.” It is specific to Twitter. I don’t think of the short messages I send to my Facebook friends as “tweets.”

This usage is confirmed by that eminently reliable source, Wikipedia, which defines “tweet” as “A micro-blog post on the Twitter social network site, or the act of posting on it.” And urbandictionary.com says that a “tweet” is “A post on Twitter, a real-time social messaging system.”

So I would say that “tweet” still performs a trademark’s source-indicating function. It tells you that the thing named is associated with Twitter specifically. Perhaps people will soon start referring to any short message as a “tweet,” but it hasn’t happened yet. So I say that “tweet” is not generic.

  September 2, 2009 at 6:22 am  Tags: Intellectual Property  Posted in: Uncategorized   Print This Post   3 Comments

The Age of Digital Convergence in Hong Kong

posted by Deven Desai

Just a quick note. I am fortunate to be in Hong Kong at The Age of Digital Convergence, An East-West Dialogue Law, Media, Technology. The Journalism and Media Studies Centre at The University of Hong Kong and Intellectual Property Law Center at Drake University Law School organized the event and the Faculty of Law at The University of Hong Kong and Technology & Entertainment Law Program at Vanderbilt University Law School co-sponsored.

The conference aims to address a range of questions:

What does it mean when people are born or have grown up digital? How do different forms of media interact with each other in an increasingly convergent environment? What type of legal, social and cultural challenges have arisen when people actively participate in the information age? Has the digital lifestyle paved the way for the development of new business models, social relationships and government regulation? Do we need to rethink some of our real-world assumptions when we talk about the Net Generation? Should traditional concepts, such as privacy, identity, free speech and journalism, be reconceptualized in cyberspace?

The panels include Digital Natives, Social Networks and the Virtual World; Content Control, Indecency and Pornography; Journalism in the Age of Convergence; New Media, Sociocultural Issues and Emerging Developments; Content Delivery, Multimedia Platforms and New Prosumers; Privacy, Identity and Brandjacking; Creativity 2.0, Technolegal Fixes and Copyright Reform; and Closing Address: “Hong Kong–Creative Capital in Asia”. The panelists have come from all over the world and several disciplines. Hearing so many different views and learning about some East Asian perspective on intellectual property and privacy has been quite stimulating. Last, I want to thank Peter Yu for inviting me to participate and as always being an excellent host.

  June 13, 2009 at 12:00 am  Tags: age of digital convergence, Hong Kong University, Intellectual Property  Posted in: Intellectual Property, Privacy   Print This Post   No Comments