Category Archives: Intellectual Property Rights

The Case Against Perpetual Copyrights

In today’s New York Times, Mark Helprin argues in favor of what effectively amounts to an extension of copyrights for an indefinite period. And does so by making what is, at best, an imperfect analogy:

WHAT if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society … to houses. Or to businesses. Were you to have ushered through the many gates of taxation a flour mill, travel agency or newspaper, they would not suffer total confiscation.

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. Though they may be divided and diminished by inflation, imperfect investment, a proliferation of descendants and the government taking its share, they are not simply expropriated.

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo.

The most fundamental difference, of course, is that copyrights, unlike property rights in land, are purely a creation of the Constitution, which gives Congress the power to:

[P]romote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Rather than recognizing that this provision constituted the Founders understanding that copyrights and patents, rather than merely being a recognizing of already existing property rights were, in reality, the granting of monopoly power by the state and, for that reason, their duration should be limited to a period of time deemed sufficient to reward the creators for the effort and innovation involved in their work.

Helprin ignores this however, and continues with yet another bizarre analogy:

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

The problem with this analogy, of course, is that it ignores the distinction between individual rights (to life, liberty, property, and free speech in the case of the examples cited) and a government created monopoly grant. It is arguably the case, and certainly something that the Founders were concerned about, that grants of monopoly power such as copyrights and patents actually infringe on the liberties of others —- even if were to come up with an idea, or a song, or a poem, completely independently, I would be prevented from profiting from it by virtue of the fact that someone managed to beat me to the Patent and Trademark Office by a few hours.

More importantly, though, how can the government grant a perpetual monopoly over an idea ? Thomas Jefferson himself noted this about intellectual property:

[ideas are] “like fire, expansible over all space, without lessening their density at any point, and, like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”

In other words, once it is in the public domain, whether protected by copyright or not, can anyone truly be said to “own” an idea ? Helprin tries to ignore this argument by making a distinction between ideas and “art”, but the point is the same.

Whether it’s the formula for Bayer Aspirin, though, or the text of To Kill A Mockingbird, there is no rational reason to extend copyright protection indefinitely.  And, more importantly, such a proposal would seem to violate the clear limitations placed on Congresses power to grant these monopolies by the Constitution.

I’m Suing The X Prize Foundation

Because they stole my idea:

The competition requires significant energy and emissions goals (most importantly, fuel economy) with at least 100 mpg or its equivalent. The guidelines are replacing the outdated MPG with this new standard, MPGe, which takes into account energy equivalents, no matter what the energy source.

Production capability is another important requirement: Vehicles will be judged on specific market production criteria detailed in key areas such as safety, cost, features and business plan. So this X Prize will only open to practicable cars capable of reaching the marketplace—no concept cars or science projects.

You may remember that I posted almost the exact same idea here in December 2006, but that was a cross-post of an August 2005 piece I wrote at The Unrepentant Individual.

Mine was structured slightly differently, but nonetheless it was an identical idea. And I didn’t even get mentioned in this news article. Jerks. Any lawyers want to represent me?

Thoughts On The Viacom-YouTube Lawsuit

Yesterday, Viacom filed a multi-billion dollar lawsuit against Google, the parent company of YouTube alleging massive violations of copyright law:

Viacom, the parent company of MTV, Nickelodeon and Comedy Central, filed a wide-ranging lawsuit against Google on Tuesday, accusing it of “massive copyright infringement.” Viacom said it was seeking more than $1 billion in damages and an injunction prohibiting Google and YouTube from committing further infringement.

Citing the $1.65 billion that Google paid for YouTube, the complaint said that “YouTube deliberately built up a library of infringing works to draw traffic to the YouTube site, enabling it to gain a commanding market share, earn significant revenues and increase its enterprise value.” The complaint was filed in United States District Court in New York.

Google said it was still reviewing the lawsuit but repeated past assertions that copyright law shields it from liability for clips posted by its users

I am not an intellectual property lawyer, but at a glance, but it seems pretty straightforward to me that if YouTube was knowingly allowing users to post clips from copyrighted material without the consent of the copyright owner, then there is a clear liability on their part for the violation. If you are the kind of person to use a service such as useviral in order to thrive on YouTube then the results of this lawsuit may be of particular interest to you going forward.

It is analagous to the Napster lawsuit from the early 90s; Napster was knowingly allowing its users to trade copyrighted music. Two Federal Courts found, correctly I think, that this violated the rights of the copyright holders in the music and ordered the service shut down. The YouTube situation is slightly different from Napster only that there is no evidence that YouTube has actively encouraged users to post copyrighted material. Nonetheless, the risks for Google seem pretty high:

Joseph M. Potenza, a partner at Banner & Witcoff in Washington, said Viacom had a case, judging from “the amount of material and the financial benefit that Google is getting.” Under copyright law, Google might have a defense if it was not told about the copyrighted material, or if it did not benefit financially from it. But neither defense applies in this case, Mr. Potenza said.

But the law is only half the equation here.

Viacom is mostly likely on the right side of the law, but much like the music companies that brought down Google Napster, they may end up being on the wrong side of public opinion. YouTube is immensely popular, and it seems clear that neither Viacom nor any other television network suffers any real financial harm if, say, a 3 minute clip from last week’s The Colbert Report is posted on YouTube. If anything, they get a promotional bonus from it.

Viacom and other media companies would be wise to look at the Napster case and the shattered reputation of the RIAA before they proceed with gusto against YouTube.

Patents Can Kill You

Michael Crichton has an Op-Ed piece in The New York Times today about the life-and-death cost that patients may pay thanks to the fact that the United States Government has issued patents for human genes

YOU, or someone you love, may die because of a gene patent that should never have been granted in the first place. Sound far-fetched? Unfortunately, it’s only too real.

Gene patents are now used to halt research, prevent medical testing and keep vital information from you and your doctor. Gene patents slow the pace of medical advance on deadly diseases. And they raise costs exorbitantly: a test for breast cancer that could be done for $1,000 now costs $3,000.

Why? Because the holder of the gene patent can charge whatever he wants, and does. Couldn’t somebody make a cheaper test? Sure, but the patent holder blocks any competitor’s test. He owns the gene. Nobody else can test for it. In fact, you can’t even donate your own breast cancer gene to another scientist without permission. The gene may exist in your body, but it’s now private property.

Patents exist solely as a creation of the state and are authorized by Article I, Section 8 of the Constitution, which authorizes Congress to:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

When you think about it for awhile, human genes really don’t seem to fall into the category of things that have traditionally been patentable. Yes, identifying the gene for, say, eye color, is a “discovery”, but so is finding the planet Neptune and nobody would seriously suggest that Neptune is patentable. It’s a fact, not an application of scientific fact. However, it would be wise to speak with a patent lawyer about the steps taken to make a patent, whatever it may be. At least, you’d think that would be the case for most things. Nonetheless, the Patent and Trademark Office has issued patents for genes and, as Crichton argues, it just doesn’t make sense:

Humans share mostly the same genes. The same genes are found in other animals as well. Our genetic makeup represents the common heritage of all life on earth. You can’t patent snow, eagles or gravity, and you shouldn’t be able to patent genes, either. Yet by now one-fifth of the genes in your body are privately owned.

If this were merely an academic argument over the proper application of the patent power, it would be one thing. Unfortunately, by allowing people — mostly pharmaceutical companies — to hold patents in human genes, the PTO is putting lives at risk:

For example, Canavan disease is an inherited disorder that affects children starting at 3 months; they cannot crawl or walk, they suffer seizures and eventually become paralyzed and die by adolescence. Formerly there was no test to tell parents if they were at risk. Families enduring the heartbreak of caring for these children engaged a researcher to identify the gene and produce a test. Canavan families around the world donated tissue and money to help this cause.

When the gene was identified in 1993, the families got the commitment of a New York hospital to offer a free test to anyone who wanted it. But the researcher’s employer, Miami Children’s Hospital Research Institute, patented the gene and refused to allow any health care provider to offer the test without paying a royalty

Crichton asks precisely the right question:

[W]hy should people or companies own a disease in the first place? They didn’t invent it. Yet today, more than 20 human pathogens are privately owned, including haemophilus influenza and Hepatitis C. And we’ve already mentioned that tests for the BRCA genes for breast cancer cost $3,000. Oh, one more thing: if you undergo the test, the company that owns the patent on the gene can keep your tissue and do research on it without asking your permission. Don’t like it? Too bad.

Too bad for you, and too bad for freedom and innovation.

Congress: Bought And Paid For By Hollywood

With the Democrats back in power, their friends in Hollywood are among the first in line to influence the policy debate in Washington:

WASHINGTON, Feb. 6 — Hollywood has often been a whipping boy here, but with a new Congress in session, the heads of the major movie studios converged on the capital Tuesday to pitch their industry in the unaccustomed role of good guy: boon to the trade balance, engine of economic growth, polisher of the nation’s image and employer of a big, uncelebrated, middle-class work force.

Yes, that’s right. Right along side Youngstown, Ohio, the film-making capital of the world now considered itself a middle class community.

The conversation often turned to piracy, the existential issue that dominates the association’s agenda. [Taylor] Hackford [director of last year’s acclaimed Ray], who spent more than a decade developing “Ray,” told of finding a bootleg DVD of the movie on the day of its theatrical release, and said 42 million illicit copies were sold within five months.

That meant millions of dollars in lost revenue — “and DVDs is how people get their money back,” he said of movie financiers. “If they don’t, will I be able to sell a hard-to-sell picture like ‘Ray’? No.”

Hackford calls himself middle class, but, of course, Ray earned more than $ 75 million dollars.

More importantly, though, his comments are an example of the typical tactics of the movie and music industries. They point to extreme examples, such as the obviously illegal bootlegging of a major motion picture within a week of it’s release, to justify laws like the Digital Millenium Copyright Act, and extension of Copyright protection well beyond it’s original 75 year period, to justif their demand for nearly unlimited control over their so-called intellectual property.

As Nick Gillespie points out at Hit & Run, in the end, it’s the little guy who will end up getting screwed.

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