Pixelization

Court in Texas Should Have Upheld the Full Lousiness of Patent Law

An annoying company with a couple of silly patents lost its bid to enforce patents for the "interactive web" with a jury verdict for the accused infringers.

Geek celeb Tim Berners-Lee – the inventor of the web – testified near the end of the trial in Texas in the megabattle patent-infringement case that threatened to force the biggest online media companies to get a license or stop using things like streaming video and rotating pictures on their websites.

There's a well-written story about Berners-Lee's testimony on Wired's Threat Level blog by Joe Mullin. Mullin also wrote a background piece as well that explains the patents at issue.

A lot of people have weighed in on how terrible it would be if the patent holding company, Eolas, won. And there's a real possibility that the sky-is-falling arguments brought by defendants such as Google and Yahoo were what carried the day.

I didn't watch the trial, and I haven't read the transcripts. But this seems to have jury nullification written all over it. And if that's what happened, that would be a real shame. If the Eolas patents are valid, then, come hell or high-water, the court ought to enforce them. Why? Because doing so would bring some needed pressure to bear on the law that got us to this point.

Software patents are absurd. I think pretty close to nearly everyone who has thought deeply about the issue agrees.

The problems of software patents extend far beyond Eolas. A bunch of silly software patents are at the center of Apple's strategy to vanquish Android, clearing away the main competitor to iPads and iPhones. It sure would be a better world if Apple's core strategy was offering better products at better prices. 

But that's not the world we live in. This world has allowed intellectual property law, the supposed guardian of innovation and creativity, to become a towering obstacle to the progress of the arts and sciences.  

The Eolas case also highlights the unholy role of universities in all this. The inventors on the patent were employees of UCSF – University of California, San Francisco. That made the University of California the owner of the patent. Did UC open the technology to everyone, in the spirit of adding to the public store of knowledge, like one might think a university is meant to do? No. UC sold the patent to Eolas, and in return, UC is apparently getting a 25-percent cut of the winnings. Is this what the University of California is for? Undermining the job-creating, knowledge-spreading activity of pioneering Bay Area companies to make some extra money? Sadly, yes. 

The problem highlighted by the Eolas case is not one or two patents. The problem is patents in general and the moral straying of large universities. Those problems can't be fixed with an ad-hoc nullification by the judge or jury in Texas. On the other hand, a faithful adherence to bad law could be the begining of a movement to fix what is really wrong.

JSTOR: What is it Good For?

Swartz is facing 35 years behind bars for allegedly cracking JSTOR. (Photo: Demand Progress)

Information-liberation guru and alleged hacktivist Aaron Swartz is facing 35 years in prison on a federal indictment [PDF] for breaking into MIT's systems and downloading more than four million academic articles from JSTOR. So, I can't help but see Stuart Buck's point that his doing so wasn't a good idea.

But is JSTOR a good idea?

JSTOR is a non-profit organization that digitizes scholarship and makes it available online – for a fee. JSTOR was launched by the philanthropic Andrew W. Mellon Foundation in 1995 to serve the public interest. But it seems to me that today, JSTOR may be more mischievous than munificent.

For instance, on JSTOR I found a 1907 article called "Criminal Appeal in England" published in the Journal of the Society of Comparative Legislation. I was offered the opportunity to view this 11-page antique for the dear price of $34.00. And this is despite the fact that my university is a JSTOR "participating institution," and despite the fact that this article is so old, it is no longer subject to copyright.

What's more, by paying $34.00, I would take on some rather severe limitations under JSTOR's terms of service. I could not, for instance, turn around and make this public-domain article available from my own website.

You might ask, why can't JSTOR just make this stuff available for free? After all, JSTOR says its mission is "supporting scholarly work and access to knowledge around the world."

Why indeed, especially considering I CAN GET THE ENTIRE 475-PAGE JOURNAL VOLUME FOR FREE FROM THE INTERNET ARCHIVE and GOOGLE BOOKS. (That includes not just "Criminal Appeal in England," but also such scintilators as "The Late Lord Davey" by the Right Honourable Lord Macnaghten. All for the low, low price of FREE.)

And it's not just old, public domain articles. Current scholarship is increasingly being offered for free from journals' own websites as soon as it is printed. Not to mention the quickly accreting mass of articles on free-access sites SSRN and the Arxiv.

Maybe JSTOR seemed like a good idea when it was launched 16 years ago. But today, if other organizations are doing for free what JSTOR is charging for, then perhaps JSTOR should be dismantled or substantially reworked. JSTOR is a big enterprise, and I am not familar with all of its parts. It may be that JSTOR provides important services that otherwise wouldn't be available. I don't know. But I do know that, at least with part of its collection, JSTOR is playing rope-a-dope, hoping to shake money out of chumps too unlucky to know they could have gotten the same wares for nothing if they just had clicked elsewhere.

JSTOR should act now to make as much of its database free as it can, including all public domain materials and all copyrighted materials for which the requisite permissions can be obtained. It seems to me that the only reason JSTOR would not do so at this point is because JSTOR has become so entrenched that it's more interested in self-perpetuation than public good. And if that's the case, JSTOR may constitute a continuing menace to the preservation of scholarship and access to it – the very things it was founded to promote.

(Cross-posted on PrawfsBlawg.)

Bill Keller on Why People Write Books

The Great Fallacy
of Intellectual Property

Samuel Johnson famously said, “No man but a blockhead ever wrote, except for money.”

That sentiment is what underlies modern copyright law – the idea that creative labors won't be undertaken without a financial incentive. And it's copyright that allows that money to be collected. But as I've been arguing, that assumption was always wrong, and current trends in media on confirming that with each passing day.

Today in the New York Times, Bill Keller writes about how the pastime of book-writing continues to boom despite the new media explosion that seems to be making books increasingly irrelevant. Keller says this about why people write books:

Writers write them for reasons that usually have a little to do with money and not as much to do with masochism as you might think. There is real satisfaction in a story deeply told, a case richly argued, a puzzle meticulously untangled. (Note the tense. When people say they love writing, they usually mean they love having written.) And it is still a credential, a trophy, a pathway to “Charlie Rose” and “Morning Joe,” to conferences and panels that Build Your Brand, to speaking fees and writing assignments.

It's more confirmation that either Samuel Johnson was wrong or that the great mass of writers out there are blockheads.

The Ikea Effect and Locke's Theory of Property

I'm reading Predictably Irrational a behavioral economics popularization by Dan Ariely. I was struck by how much Ariely's exposition of irrational human attitudes toward ownership tracks John Locke's theoretical justification for private ownership of property. Ariely writes:

[T]he more work you put into something, the more ownership you begin to feel for it. Think about the last time you assembled some furniture. Figuring out which piece goes where and which screw fits into which hole boosts the feeling of ownership. ... I can say with a fair amount of certainty that pride of ownership is inversely proportionally to the ease with which one assembles the furniture ...
(Predictably Irrational, p. 175)

Ariely calls this the "Ikea effect." For me, living with a bunch of furniture I got from Ikea about 10 years ago, I would say the Ikea effect is that the more time I wasted assembling the furniture back then, the greater is my present-day desire to destroy it with an aluminum baseball bat. But anyway, check out what Locke says:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.
(Second Treatise of Civil Government, ch. 5)

Perhaps this suggests that Locke's theoretical justification may have been driven less by detached logic and more by intuition springing from irrational impulse.

(Photo and composite by me; Locke engraving from public domain. This post originally posted on PrawfsBlawg.

Facebook Deathwatch: Millions Fleeing FB

I predicted the demise of Facebook on This Week in Law with Denise Howell back in January (show no. 96, about 27 minutes in).

Oh, I sounded crazy back then.

But then, as I tweeted in on May 14, based on the feed I saw on my Facebook account, it looked like the demise of Facebook might already be beginning.

Now comes the news today, on CNN, that Facebook lost six million users in May. The CNN anchor had a social media expert on and asked him why this was happening. He advanced several theories. But I'll tell you exactly what's happening: Facebook is getting lame.

They've mucked it up with ads. And the interface is clunky and annoying.

In fact, Facebook got lame a long time ago, but now the lameness is so overwhelming, and the alternatives are far enough along, that the thing is finally gonna crumble.

Cover your head and run to a clear, open area.

Back in January, on TWiL, Denise brought up a recent news item – Facebook had started incorporating user's identity and content into advertising, called "Sponsored Stories."

Here's what I said:

Let me just state here, unequivocally, make a prediction: Five years from now, Facebook will be dead. It will be like MySpace. I think Facebook is headed straight into the toilet. It has become uncool. ... The Facebook that you see in The Social Network movie is not the Facebook that you see today. It will either have to change radically, or it will be replaced by something else. ... I just think they are going down."

I don't sound so crazy now, do I?

FAILppuccino: Starbucks' 10 Song Summer Mix iTunes Card Doesn't Work

 
 
So, my wife got a "free" card at Starbucks for a "10 Song Summer Mix" on iTunes. Now, I put "free" in quotes because it's only free after you buy a frappuccino. It's what my friend John Forbes Anderson used to point out was really, technically, better described as being "at no explicit additional cost."

So I tried typing in the redemption code this morning, and ... nothing happens. I looked around on the web to see if this was happening to other people, and the best source of information is the torrent of angry comments streaming into the Starbucks official blog post describing the promotion. It's a nationwide fail.

And I wanted to listen to that Death Cab for Cutie song ...

I'll bet that at this very moment, some enterprising consumer class-action attorney is putting together a complaint. Seems like some easy fees to me.

Moving from Typepad to My Own Server, Running WordPress

In the coming days or weeks, I'll be moving this blog from its current host, Typepad, to my own server account, running WordPress server software. I have nothing against Typepad. They've been fine. But when I started my newest blog, Blog Law Blog, I did it on my own server space using WordPress software, and I like that better. It also ends up being cheaper, although it requires a little more technical attention.

Pixelization will still be found at pixelization.org. I hope to work it so that all the old individual post and category addresses still work. I think I can handle that. I'm less certain I'll be able to make the old RSS feed URL work after the conversion. (I am my own tech support.) But I'll see if I can't figure that out as well.

And after I switch over, I'll probably do more frequent posting. I've been holding off as of late, knowing that each additional post is likely to add to the work of converting.

Image from the Smithsonian, via Flickr Commons.

Manuscript of Full "Incentive Fallacy" Article Posted

The Great Fallacy
of Intellectual Property

I have posted to SSRN an updated and greatly expanded manuscript explaining why the classic argument for intellectual property – that creative and innovative activity requires external incentives – is flawed. I've revised the title to "Intellectual Property and the Incentive Fallacy."

The paper incorporates several arguments I made in a series of posts I did here in December.

I'm pleased to say that the article has been accepted to be published by the Florida State University Law Review in 2012. Since the manuscript is subject to further revision, I continue to be grateful for any comments.

Jefferson's Letter About Ideas Being Free "Like the Air"

Thomas Jefferson's letter to Isaac McPherson of August 13, 1813 is one of the most famous writings on intellectual property. It contains this oft-quoted passage:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body.

When I looked for it, I couldn't easily find find a version of the letter that's highly suitable for printing and reading, so I've put the letter into two pdfs: one with typeset text, and another with images of the original pages, taken fron the files at the Library of Congress. These documents and others are available for free download from my Compendium of Intellectual Property.

WHAT?!? Copyright and the Royal Wedding

They look lovely, don't they? And now, I will, as I've been asked, provide this credit: Copyright 2010 Mario Testino.
ARRGGHHHHH!!

I watched some of the royal wedding this morning, and I must say, it made me feel all warm and fuzzy inside. It reminded me a lot of my own wedding. I mean, mine was a lot smaller, of course, but it was smiles and sunshine all around. And like today's wedding, it featured an exquisitely beautiful bride and a slightly funny-looking groom.

What a lovely day. Naturally, my thoughts turned toward intellectual property law.

It was at that point I was shocked to find out something that was WAY different with my wedding. I managed to negotiate MUCH better legal terms with our wedding photographer than Will & Kate did. Specifically, I had our photographer agree that my wife and I would be deemed the authors of all photographs, and all rights and copyright interests in the photographs were assigned to us in perpetuity. It was our freaking wedding, after all.

So how is it that Will & Kate left the copyright to their official pictures with their photographer?!? Persons using the photos for editorial use are required to include this credit: Copyright 2010 Mario Testino. THAT DRIVES ME CRAZY!!! I can't stand it when any wedding couple lets a photographer bully them around on rights issues. But for the British Monarchy to do this? It's positively disgraceful! It makes me want to BASH MY HEAD INTO A WALL! I mean I just can't freaking believe it!!!!!!!!!!

C'mon people, stop getting screwed around by photographers on rights issues! Have a spine!! And if you are heir to being the head of state of a commonwealth that embraces more than 100 million people spread around the globe, then WISE UP AND START RULING SOME BRITANNIA!!!

OMG, I am so worked up right now. I can't even begin to talk about how law professors habitually cave to student law-review editors by signing away copyright to articles. I would completely lose it and have a coronary.

[This post was re-posted from PrawfsBlawg.]

Public Domain Source: The CIA World Factbook

I remember the CIA World Factbook in the library of my elementary school. It seemed strange back then. Here was the CIA, the most secret agency of the United States government (no one in the 1980s, at least at my elementary school, was allowed to know about the NSA's existence), and they had published a book filled with information they'd collected. Looking over it in the school library, you had to wonder if it was your patriotic duty to close your eyes for the assessment of the Soviet Union. 

Today, the CIA World Factbook is on the web, and it is a great source of public domain material. And in terms of images, it can be a goto source for public domain flags and maps. 

Take a look at the page on the Czech Republic. There's maps, the flag, and 20 photos for you to use. There's also public-domain text about the country.

Especially helpful, the folks at the CIA have highlighted in plain language the public-domain status of the works.

If a copyright is indicated on a photo, graphic, or any other material, permission to copy these materials must be obtained from the original source.

Unless a copyright is indicated, information on the Central Intelligence Agency Web site is in the public domain and may be reproduced, published or otherwise used without the Central Intelligence Agency's permission. We request only that the Central Intelligence Agency be cited as the source of the information and that any photo credits or bylines be similarly credited to the photographer or author or Central Intelligence Agency, as appropriate.

Here's a graphic that I made to illustrate a blog post about Peru. I assembled it from a map and flag image, both of which are from the CIA World Factbook.

I know what you're thinking. If I've gotten information from the CIA, then isn't it my patriotic duty to keep it on the downlow where I got it from? No, apparently the CIA would appreciate the photo credit. You don't have to give it to them. But it would be nice. And hey, if the World Factbook is the only contribution to democracy that the CIA's made lately that they can publicly take credit for, why deny it to them?

Why Do I Put a Copyright Notice on a Paper that is Skeptical of Copyright Law?

Stephan Kinsella over at the Mises Economics Blog posted a link to my new draft paper, Intellectual Property’s Great Fallacy. (Thanks!) That paper argues that the essential bit of economic wisdom at the core of copyright – that external incentives are needed to spur creative labor – is wrong.

One commenter, Eliel Melton, made an interesting point:

I note with no small amount of cynicism that Professor Johnson elected to copyright this paper: © 2011 Eric E. Johnson

As Stephan noted, I didn't cause the paper to be copyrighted, the federal law did. Copyright applies by default under the current law. That's been the law since 1989. So putting a copyright notice on a paper does not cause copyright protection to arise. 

But that doesn't answer the question of why I put the copyright notice on the work. The copyright notice might seem to communicate an aggressive intent to enforce my copyright. And honestly, I think that is what many people mean to communicate when they put a copyright notice on their work. But there are some good reasons to put a copyright notice on a work even if you are something of an IP skeptic (as I am).

For one, a proper copyright notice with the year of publication will serve to establish, at some point in the future, that the work's copyright protection has expired. WIthout this, it can be difficult to determine with definiteness whether something has entered the public domain.

Also, by declaring the copyright holder, I provide follow-on users with some helpful information. If they want to ask permission to re-use the work, they know whom they need to contact. If they want to make a fair use of the work (that is, without asking permission), knowing the identity of the copyright holder allows them to gauge the likelihood of having to endure heavy-handed threats and spurious legal arguments. Sadly, in the real world, it is only rational to interpret your fair-use rights expansively or narrowly depending on the identity of the would-be plaintiff. (And, of course, your personal preferences for litigation thrill-seeking.)

I'm an intellectual property professor. If I took off on a baleful campaign of intimidation against someone making a fair use of my work, I think I would pay a dear social price at the hands of my colleagues across the academy.

There's also a question of making for an accurate record, for its own sake if nothing else. I personally find it frustrating that so many things lack a copyright notice these days, even though, as federal law requires, they are protected as copyrighted. Under the old law, the lack of a copyright notice did mean lack of copyright protection. You could rely on lack of notice to show that something was in the public domain. But now that the law's changed, all the new copyrighted stuff out there without a copyright notice serves to camouflage the material out there that is not copyright-protected because of a deficient notice. I understand that my decision to use a copyright notice will not lift the fog. Nonetheless, I don't like contributing to it. It's better, in my mind, to keep the record clear.

Court Strikes Down "Promotional Use Only—Not for Sale" Label. Is That Cassingle I Got in 1985 Finally Liberated?

Hush, hush! Keep it down, down! Record company "not for resale" labels aren't enforceable! Oh-oh-oh-oh-oh hush, hush!

The Ninth Circuit has decided that if you get unsolicited CDs through the mail, you can turn around and sell them on eBay. It's not copyright infringement, notwithstanding a label on the CD that says "Promotional Use Only—Not for Sale." 

The case is UMG Recordings Inc. v. Augusto, 9th Cir., No. 08-55998, 1/4/11). Here is the opinion [pdf], and BNA has a summary here. 

The long version of the legalese on the CDs said this:

This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws. 

Punishable under federal law? Well, I guess not!

I remember first spotting this issue when, as a kid, I had the sublime experience of winning a call-in radio contest on hit-music station FM 102 in Sacramento. I got a free cassette from the prize vault. I think it was a cassingle of Til Tuesday's "Voices Carry."

I remember seeing through the plastic swivel case there was a legend, stamped in shiny gold lettering on the printed insert (the "J-card"), that said the cassette was the "property of" CBS Records and I couldn't sell it.

At the time, I didn't see how I could win a prize and yet it would still be the property of the record company. But hey, I thought, that's legal stuff that is beyond me to understand. Of course, no, it wasn't beyond me. It was just a legal hail-Mary. It was just a promotional cassette that the record label gave to the radio station to make the radio station happy so that the radio station could give it to a listener to make listeners happy, but to try to avoid cannabalizing the record company's own sales, they did the embossed gold-lettering. To use the language of the 1980s, it was, legally speaking, "kind of lame."

The fact is, you just can't believe everything you read, even when it is printed in gold-embossed lettering.

Now UMG v. Augusto didn't decide the exact same question as my cassingle presented. In UMG, it was persuasive to the Ninth Circuit that the CDs were sent unsolicited through the mail. The court looked to the federal Unordered Merchandise Statute (39 U.S.C. §3009), which says that if you get stuff through the mail you didn't order, the company that sent it to you can't bill you for it, and you get to keep whatever it is as a gift. 

It's a timely decision, because this time of year all of Southern California is lousy with unsolicited "For Your Consideration" DVDs sent to academy voters. 

Now that I'm thinking about it, I'm not sure I got a cassingle. It might have been the whole album. But even if it wasn't a cassingle, it might as well have been. "Voices Carry" was the one good song. And besides, I like saying "cassingle."

By the way, the court said you can still pull this kind of shenanigans with software, subject to some limitations.

Posted to SSRN: Draft of Intellectual Property's Great Fallacy

The Great Fallacy
of Intellectual Property

In line with a series of posts I did in December, I have posted to SSRN a draft of a short essay I've written, Intellectual Policy's Great Fallacy.

Here is the abstract:

Intellectual property law has long been justified on the belief that external incentives are necessary to get people to produce artistic works and technological innovations that are easily copied. This Essay argues that this foundational premise of the economic theory of intellectual property is wrong. Using recent advances in behavioral economics, psychology, and business-management studies, it is now possible to show that there are natural and intrinsic motivations that will cause technology and the arts to flourish even in the absence of externally supplied rewards, such as copyrights and patents.

2010: The Year Apple Got Evil

Silicon Valley's Bad Apple

In 2009, I saluted Apple for 86ing DRM from the music it sold from its iTunes store.

Back then I was filled with warm and fuzzy feelings toward Apple. I had several iPods and Macs, and they were all super cool looking. Best of all, I was thrilled to be going DRM-free with my music and Microsoft-free with my operating system – all thanks to Apple.

But since then, Apple has gotten unmistakably, hmmm, what's the word for it? EVIL.

Here's a look back at 2010, the year of the poisonous fruit.

•   February   – Apple rejects app selling bathing suits to women as too sexual
•   March   – Apple is alleged to have pressured record labels not to cooperate with Amazon
•   April   – Apple sics R.E.A.C.T. force on Jason Chen
•   April   – Apple rejects gay-sightseeing app
•   April   – Apple bans political cartoons for "ridiculing a public figure"
•   May   – Apple forces fashion magazines to create censored "Iran editon" for iPad
•   May   – Apple officially becomes bigger than Microsoft
•   June   – Apple collects and shares iPhone users' exact locations
•   August   – Apple applies for a patent to secretly record your voice and heartbeat
•   September   – Apple sues an accessory maker for patent infringement for using recycled parts
•   October   – Apple prefers to kick GPL'd software out of its app store in order to keep DRM on all apps
•   November   – Apple forces toy company to stop making Steve Jobs action figure
•   December   – Apple has eBay halt auctions of Steve Jobs action figure

On TWiL #92 with Mark Lemley and hosts Denise Howell and Evan Brown

I'm on This Week in Law with Denise Howell, along with Evan Brown and Mark Lemley. It's episode no. 92.

You can download the audio or video, or you can get it as a podcast from iTunes. 

Is Intellectual Property Essential? Kevin Flynn Hackers vs. Walt Disney Backers

Part 5 of a series: The Great Fallacy
of Intellectual Property

In this series of posts, I'm arguing that the central economic theory of intellectual property law is wrong. That theory is that IP, or some other form of externally provided reward, is, as a general matter, necessary to encourage people to innovate and create.

What I'm arguing about here is the general case.

That is, to what extent does it make sense to adopt, as a starting assumption, the classical economic rationale for IP?

So to frame the issues, let's note that a couple of things should be abundantly clear and beyond debate:

1. There is some valuable creative/innovative activity that would not take place without external rewards.
2. There is some valuable creative/innovative activity that would take place even in the complete absence of external rewards.

Tron Legacy hero Kevin Flynn is an advocate of freeing software from IP protection. But you can bet Disney, which spent $180M to make the film, is no advocate of freeing movies from copyright.

Both aspects are exemplfied in some way in the new Walt Disney Studio's film, Tron Legacy.

[NON-SPOILER ASSURANCE: Info from the first five minutes or so of the movie is discussed here. (Far, far less than you would get from the trailer.)]

In Tron Legacy, the computer genius who created the Tron world, Kevin Flynn (played by Jeff Bridges), speaks of how information wants to be free. Decades later, his son heroically liberates his father's company's new operating system by posting it freely on the internet. 

Indeed, free software has accounted for billions of dollars worth of innovation – all of it produced without the external incentives offered by intellectual property rights. 

There's irony, however, to the fact that the movie delivers a high-5 to the concept of software freedom: The fact that Disney produced it.

Disney is one of the world's most ardent promoters of ever more expansive proprietary rights over intellectual assets. Disney is in large part responsible for getting Congress in 1998 to retroactively extend the terms of copyrights for movies and books that were produced as far back as the 1920s. 

While the extension of copyright was a windfall for lobbyist-wielding entertainment conglomerates, there's no doubt that going forward, big movie studios make the decisions they do based on copyright's incentives. Tron Legacy, for example, cost $180 million to produce. There is no way that Disney would have greenlighted the film without the assurance provided by copyright law that Disney could, assuming the film is a success, recoup its investment and garner a profit. 

Here's a short non-exhaustive list of valuable intellectual assets whose development almost certainly required the incentive of external rewards, such as those made possible by intellectual property rights.

• Virtually all large-budget major motion pictures
• Virtually all large-budget television series
• Many or most new pharmaceutical compounds (but not including additional forms of delivery of those compounds, such as extended release forms)

Now here's a short non-exhaustive list of valuable intellectual assets whose development, I think we can all agree, would have happened with or without the extrinsic incentives provided by intellectual property rights.

• The vast majority of photographs taken by individuals and posted to Flickr
• The vast majority of blogs
• A huge proportion of videos on YouTube
• A very large proportion of short stories and poetry
• A substantial proportion of documentaries and short-subject films
• Advertisements and commercials
• A very large proportion of patentable software technologies
• A very large proportion of patentable business methods
• Virtually all patentable surgical techniques

Now, that's not to say that creators of those categories of assets don't appreciate having intellectual property protection; it's just to say that the IP-enabled possibility of reaping extrinsic financial rewards was not a necessary encouragement for the people developing those assets.

And then there are examples of valuable intellectual assets that, it would seem, would not have come into existence but for the ability to opt-out of the intellectual property regime:

• Wikipedia
• Linux
• The catalog of GNU-GPL-licensed free software titles

So, the question to explore is: How should we characterize the general case?

That is, do people need the incentive of copyright or patent to create assets such as:

• Popular music compositions
• Popular music recordings
• Symphonic music recordings
• Novels
• Non-fiction books
• Inventions in the fields of electronics and computer hardware
• Advances in industrial machinery
• Advances in materials
• Recombinant DNA technologies / gene sequencing
• Fine art
• Fine photography
• News articles / conventional journalism

My argument is that it is erroneous to assume that most of the value to be found in the above categories of creativity and invention would not be created but for the extrinsic incentives enabled by copyright, patent, and other intellectual-property rights.

Who Has More Insight About Creativity and Copyright – Samuel Clemens or Mark Twain?

Part 4 of a series: The Great Fallacy
of Intellectual Property

Daniel Pink, whom I talked about in yesterday’s post, identifies what he calls the “Sawyer Effect,” named for Tom Sawyer’s famed manipulation of his boyhood friends into whitewashing a fence and paying for the privilege of doing it. Pink writes that “rewards can perform a weird sort of behavioral alchemy: They can transform an interesting task into a drudge. They can turn play into work.”

A passage from Mark Twain’s Tom Sawyer, quoted by Pink, illustrates the point nicely:

There are wealthy gentlemen in England who drive four-horse passenger-coaches twenty or thirty miles on a daily line, in the summer, because the privilege costs them considerable money; but if they were offered wages for the service, that would turn it into work and then they would resign.

So what are the implications for IP policy? The Sawyer Effect would seem to suggest that copyright, for instance, by providing financial rewards for activities like creative writing, may actually work to extinguish the motivation to write.

This is particularly tickling, because Samuel Clemens (who, of course, wrote as Mark Twain) was a big booster of lengthened copyright terms. Clemens argued before British Parliament and the U.S. Congress in favor perpetual copyright.

I want [the authors' trade] to be represented and protected and encouraged. They are all worthy, all important, and if we can take them under our wing by copyright, I would like to see it done. I should like to have you encourage oyster culture and anything else.

So who should we believe? Twain or Clemens? If you look at the science, it supports the Twain view. Besides, Twain wrote with a novelist’s deep candor.

Clemens, as he admitted, had an “extraordinary interest” in the copyright-extension bill he testified in favor of.

How the Reward of Intellectual Property Might Inhibit Creative Labors

Part 3 of a series: The Great Fallacy
of Intellectual Property

In this series of posts, I’m taking on what I'm calling the great fallacy of intellectual property law – the idea that IP rights are needed to provide financial rewards that are necessary to induce creative and inventive labor.

It is increasingly clear, based on social science research, that intrinsic motivation is generally more important than extrinsic motivation when it comes to tasks that are creative in nature. That puts IP on the sidelines. 

But there's something even more astounding: It turns out that there is good evidence that extrinsic rewards can actually be detrimental to creativity. That is, they can do more harm than good. This is the conclusion reached by writers in the fields of business-management, psychology, and economics.

In the book The Social Psychology of Creativity, Teresa M. Amabile of Harvard Business School makes the general claim (at p. 91) that, absent a few special cases:

[T]he intrinsically motivated state is conducive to creativity, whereas the extrinsically motivated state is detrimental. 

That is a stunning claim when considered in the context of our history of our IP policy. But there’s a lot of evidence supporting it.

Edward L. Deci, Richard Koestner, and Richard M. Ryan conducted a meta-analysis ([pdf]) that looked over a slew of research. Their bottom line?

Careful consideration of reward effects reported in 128 experiments leads to the conclusion that tangible rewards tend to have a substantially negative effect on intrinsic motivation, with the limiting conditions we have specified. Even when tangible rewards are offered as indicators of good performance, they typically decrease intrinsic motivation for interesting activities.

How well intellectual property – as one kind of extrinsic reward – fits into this picture is something that begs for some deep thinking and some empirical research as well. But the scientific research in its current state certainly suggests that, at a minimum, it is erroneous to work from the starting assumption, as IP does, that financial rewards are a necessary inducement to creative labors.

The Drive to Create and Invent

Part 2 of a series: The Great Fallacy
of Intellectual Property

A growing literature, primarily from social scientists, shows that for creative labor, intrinsic motivation – as opposed to extrinsic motivation – is the most important stimulus to action.

At this point, such research has scarcely been cited in legal scholarship about IP. Yet the implications for intellectual property policy are enormous. Copyright and patent laws aim to provide creators and inventors with extrinsic motivations. But this new scholarship from outside the legal academy suggests that, as a general matter, it is simply wrong to assume that extrinsic motivation is necessary for creative and inventive activity.

An excellent introduction to this work comes from lawyer and business-writer Daniel H. Pink. In his popular book Drive, Pink surveys the literature and explores the implications for modern business-management thinking.

Pink doesn't write about intellectual property. His intended audience is business people – particularly those managing employees who are called upon to engage in creative, innovative work. But most of what Pink says has tremendous implications for intellectual property policy.

“Too many people hold a very narrow view of what motivates us,” writes Pink. “They believe that the only way to get us moving is with the jab of a stick or the promise of a carrot. But if you look at over 50 years of research on motivation, or simply scrutinize your own behavior, it’s pretty clear human beings are more complicated than that.”

Pink explains that beyond primal urges and responses to rewards and punishments, we have what he calls “a third drive.” He explains, “We do things because they’re interesting, because they’re engaging, because they’re the right things to do, [and] because they contribute to the world[.]”

These claims are both banal and revolutionary.

On the one hand, it is entirely obvious that people are motivated to undertake creative endeavors by something other than extrinsic rewards and punishments.

On the other hand, in the context of economics and business-management discourse, these contentions are positively heretical. In conventional economic models, money is understood to be the universal currency for all wants and desires. And in the business world, it is rare to regard employees as being inherently motivated to do challenging, brain-intensive creative work.

This strain of thinking – that extrinsic motivation is needed for creative labor – not only dominates thinking about management and economics, it dominates discourse about intellectual-property policy as well. The very underpinning of IP law is the idea that the heavy hand of the courts is necessary to allow creativity to thrive. Pink's book, and the literature he cites, suggests that may be wrong.

The Main Theory of Intellectual Property is Wrong

Part 1 of a series: The Great Fallacy
of Intellectual Property

The whole idea of intellectual property is that people won't create or invent things if other people can then swoop in and make copies.

So, for example, the thinking goes like this: Why would any novelist go through the trouble of writing a novel if, as soon as the first copy is released, everyone and anyone could simply make copies of the thing without paying so much as a dime to the writer?

This perceived problem – the ability to copy – is what intellectual property law is intended to remedy. Susceptibility to copying is a particular economic conundrum for inventions, works of art, books, music, and other intangibles. Other goods aren't susceptible to copying. If I sell you a bushel of wheat, and if you want more, you'll have to buy more. You can't simply copy the first bushel that you purchased. But artistic works and technological inventions are what economists call "nonrivalous and nonexcludable." That just means that more than one person can use the good at the same time, and you can't do much to stop them. Unless, for instance, there's a law. In which case you can take them to court.

Now, while I say this is "the whole idea of intellectual property," it's true that sometimes people have made arguments for copyright, patent, and other forms of intellectual property that don't come down to this economic rationale. But those are mostly rare exceptions. The real driver of intellectual property law, especially in the United States, has been the idea that if copyists can take a free ride on the creative and inventive labors of others, then people will generally stop bothering to create and invent.

This is the classic economic argument for intellectual property law. And it makes perfect sense. But it turns out to be wrong. Even wildly wrong.

For a variety of different reasons, it is now possible to say – with confidence – that the classic economic rationale for intellectual property law is in error. The reason we can say this now (and maybe could not have said so with conviction not so many years ago) has to do with recent history and recent scholarship. Between what we are seeing taking place on the internet and what we have learned from new academic research, especially in the field of behavioral economics, we can now say that the field of intellectual property law has long been laboring under a false assumption.

I'll explain more in subsequent posts.

I'm on This Week in the Law Today, Netcasted Live

Today I will be on Denise Howell's This Week in Law show.

It's live at 1 p.m. Central (11 a.m. Pacific and 2 p.m. on the East Coast)

You can suggest topics on Twitter with the hashtag #twil86 or on Denise's Facebook page.

By the way, Denise Howell was one of the first five or so people to start a law blog (Bag and Baggage).

Gulp! Gurgle! It's a Trademark Claim to Copyright!

The absurd expansion of intellectual property law has reached a new level.

It's now feeding on itself.

U.S. Copyright Group and Media Copyright Group are two outfits that are trying to do a volume business in taking legal action against alleged internet pirates and then getting quick, low-dollar cash settlements.

In a delicious plot twist, U.S. Copyright Group is now threatening Media Copyright Group with a claim for trademark infringement over the group's name! U.S. Copyright Group wants $25,000 to drop the matter.

Media Copyright Group has responded by charging U.S. Copyright Group with fraud on the trademark office.

BTW, what a silly trademark complaint. How weak is it to claim that another business named "Copyright Group" will confuse potential customers? But hey, it's irony, it's karma, and it's great stuff. 

The whole thing reminds me of a book my kid likes, Ten Sly Piranhas: A Counting Story in Reverse, by William Wise & Victoria Chess. It's about a school of conniving piranhas that inevitably gobble each other up:

And with a gulp, and a gurgle — there was only one ...

Nate Anderson of Ars Technica is on the case.

(Ha'p: Hollywood Reporter, Esq.)

The Hazards of Inferring Law from Economics

Not long ago I bought a copy of a microecon textbook – Microeconomics (7th ed.) by Robert S. Pindyck and Daniel L. Rubenfeld. I've been leafing through it as a reference. I'm very fond of textbooks in general, and this one is inviting and fun. It's packed with bells and whistles: Definitions in the margins. Thought-provoking example boxes. And full-color printing on every page. Even if there is no reason to use color throughout, the book proudly indicates its polychromatic potential on every page with a tiny version of the book's motif of wildly eccentric interlocking rings that look like a rainbow experiencing a blow-out. 

Here is one substantive thing I've found in the book that I thought was pretty funny. In discussing information economics and signaling in job markets, the authors write:

Why don't firms simply hire workers, see how well they work, and then fire those with low productivity? Because this policy is often very costly. In many countries, and in many firms in the United States, it is difficult to fire someone who has been working more than a few months. (The firm may have to show just cause or provide severance pay.)

It's easy to imagine why Pindyck & Rubenfeld might say this. Using basic economic reasoning, you can simply infer that there are substantial legal costs incurred in randomly firing people. That just makes sense.

Yes, but it's wrong. 

Firms in the United States enjoy nearly unfettered discretion to fire whomever they choose, whenever they choose, for whatever reason they come up with. Check that — they don't actually need a reason at all. It's called the "at-will employment rule," and it's the law of the land pretty much everywhere in the U.S. (Montana is an exception — kind of.) What that means is that firms generally do not need "to show just cause or provide severance pay," as Pindyck & Rubenfeld posit.

Other countries are certainly different. And in the U.S., the at-will rule does not generally apply to unionized workers, who have collective bargaining agreements that typically impose legal hurdles to facile firing. But the analysis Pindyck & Rubenfeld were using specifically had to do with white collar employees — the kind of employees who are rarely unionized. 

Now in the interests of being complete, I should say that it is sometimes possible for employees to allege an implied-in-fact contract or an implied duty of good faith that would serve as the basis for a lawsuit when fired. But those kinds of cases are extremely difficult to win.  Let me emphasize: extremely difficult.  In the great majority of situations, a worker has absolutely no chance of winning a lawsuit or even of finding a lawyer who will be willing to take the case. 

Severance pay, as a general matter, is simply not required by law. Firms might hope that severance pay will head off costly, if ultimately unsuccessful, lawsuits. And no doubt that's true to an extent. But the cost of severance pay is huge compared with the generally tiny legal risk. And the cost of keeping on unproductive workers exceeds the legal costs of firing them to a colossal extent.

What do we make of all this?

The question posed by Pindyck & Rubenfeld suggests that in the absence of legally imposed costs, it would be within the interest of firms to rapidly hire, try out, and fire people. Yet they don't. And if you take a look at the law, you see that legally imposed costs are minimal. 

So, why do firms balk at firing people more readily?

The answer is not economics, it's psychology and morality. Bosses don't like firing people. Period. Everybody knows that. The fact is, managers often don't act in the best interests of the firm. They often do not even act in their own best interests. And that is especially the case when it comes to issuing pink slips. Firing people sucks. Managers will generally avoid doing it, and, when they must do it, they will seek ways to make it more pleasant.

That's not a revelation, of course. Non-economists understand this well. What is interesting is to see how economists are so prone to shoehorning an economic explanation into a situation where it doesn't fit.

The impulse is so strong, economists may even perceive legal barriers where they do not, in fact, exist.

Free, Downloadable Statutory Supplement for Antitrust

For my Antitrust, Bankruptcy & Consumer Law class, I have produced a statutory supplement, which I have made freely downloadable from SSRN, in case it may be of use to people outside my class.

It includes the Sherman Act, the Wilson Tariff Act, the Clayton Act, the Robinson-Patman Price Discrimination Act, and a portion of the Federal Trade Commission Act.

Here it is: Antitrust Statutory Supplement (2010 Edition)

Fair Use and Reposting Articles About You

Under most circumstances, there is no good argument that reposting an entire newspaper story on the web qualifies as fair use under U.S. copyright law. This is something I have noted on Blog Law Blog in connection with the Righthaven litigation – a zero-warning copyright-infringement lawsuit campaign seeking nuisance-value settlements from bloggers and others who have reposted material from the Las Vegas Review-Journal. 

That being said, the Righthaven litigation has caused me to think about one particular set of circumstances for reposting whole newspaper articles that should generally qualify as a fair use. Those circumstances are when the article directly concerns the person (or entity) reposting it, and the article is not made available online so that the person about whom it was written can deeplink to it.

So, for example, if a newspaper writes an article about you, and then no longer makes that article freely available online, it seems to me there are strong reasons it should be a fair use for you to repost that article in its entirety on your website where people can view it without paying a fee or registering to get a password. To me, this rationale should apply even if you do not comment on the article – a common touchstone for fair-use analysis.

This is a fact pattern that has come up in the Righthaven litigation multiple times – a person or organization reposts an article directly concerning that person or organization. In fact, this is a well-established custom in many arenas, and it is a standard practice for many entities. It is often done through an agent, such as a publicist. The ubiquity of the practice suggests a belief among practitioners that it is not wrongful. Established customs do not always indicate widely held community values, but they often do. Here, I think the custom of entities reposting articles written about them reflects a culturally ingrained sense of fairness – one that copyright law ought to appreciate.

I do not know of any cases that support this view of fair-use doctrine – although I haven’t looked for them. But a lack of precedent wouldn’t mean that the fair-use doctrine should not be applied in this manner in appropriate cases. Fair use is meant to be flexible. The list of examples of fair use and the statutory list of factors to be considered in fair-use determinations are not intended to be exclusive.

When I was in journalism school, I recall one of my professors saying a newspaper can be thought of as “a community talking to itself.” If that is true – and I think it is – then the person being talked about has a strong personal interest in allowing that conversation to continue. Reposting a story ensures that.

We should bear in mind that a newspaper does not just write about stories of interest to the public, a newspaper actually infuses stories with public interest by the act of writing and publishing them.

We know that the First Amendment extends broad rights to newspapers to publish material about private persons where the topic or person is one of public interest. By the same token, private persons ought to have broad rights to republish material from newspapers when that material is written about them.

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material. In the great social contract that allows such unfettered freedoms to the press, a limited reposting right could well be considered the benefit of the bargain for the person subjected to the glaring light of the media.

(Originally posted, in a slightly different form, on Blog Law Blog.)

New Millennium Media Carnage

Regretful reality-show participant Charles Ommanney, with then-wife Catherine Ommanney, on the set of "The Real Housewives of D.C."

A couple of fascinating and sad stories from the New York Times on the human toll taken by today's media, in particular, reality television and user-posted photographs.

Sarah Wildman: The ‘Housewives’ Husband Who Wishes He Said No

Brad Stone: Policing the Web’s Lurid Precincts

Righthaven Has a Major Card to Play in Nevada Senate Race

Steve Green of the Las Vegas Sun reports that the Las-Vegas Review Journal, via its plaintiff stand-in, Righthaven, has sued the Nevada Republican nominee for U.S. Senate, Sharron Angle, for reproducing material from LVRJ newspaper stories on her website. Angle is running against Senate Majority Leader Harry Reid.

The lawsuit seeks $150,000 in damages plus the surrendering of the candidate's domain name, sharronangle.com.

This shows you how far Righthaven and the Las Vegas Review-Journal have strayed from ordinary, civil behavior. This is a newspaper we are talking about, suing a candidate for office. And not just that, but suing that candidate because of the content of her communications to the public.

If Angle is forced to give up her domain name and cough up $150K in damages, that could easily be the difference in a closely contested election. (And apparently, the race is currently close.)

What happened to reporting on the story, not becoming part of it?

There is some indication that the Review-Journal, which previously used Righthaven to file a lawsuit against the Nevada Democratic Party, was bowing to pressure to be more non-partisan in its carpet-bombing litigation activities. Steve Friess, a blogger and columnist for a rival media outlet, the Las Vegas Weekly, used a series of screenshots on his blog to document Angle's copious borrowing, egging the Review-Journal on. Friess doubled the dare by calling R-J publisher Sherman R. Frederick and chief editor Thomas Mitchell "full-throated Sharron Angle supporters and Ahab-like Harry Reid haters."

"Righthaven must sue," Friess wrote. "It took effort to find the cat blogger, but this one was on a major candidate's site, there in plain sight. If they don't sue Angle, they provide dozens of infringers with a clear example of the company's inconsistency in defending its copyright."

So now they've sued.

But in my view, filing the complaint really doesn't prove much. The real question is how aggressively will Righthaven pursue the case?

The plaintiff-side lawyering in this case could actually make a big difference in how the Senate race plays out. As a tea-party candidate coming from outside the Republican mainstream, running against a powerful incumbent, Angle is already at a disadvantage in terms of cash and political allies. That makes her website and what money she has all that much more important to her. The attorneys fees in defending against Righthaven could significantly affect her ability to buy television ad time and otherwise get her message out. And during campaign season, every day and every dollar counts.

That means that Righthaven/LVRJ has much more leverage in this litigation than they do in most of their lawsuits, which have been settling for pennies-on-the-dollar nuisance-value amounts. Will the Review-Journal and Righthaven pull punches and sit on the complaint without turning up the heat in court? Or will they move things along procedurally and use their leverage to demand a big payoff?

Here are some more questions: Is it fair for Righthaven/LVRJ to use the leverage that exists because of the tempo of the campaign? Is it fair for them not to?

This is a real mess. From the perspective of integrity and the public trust, I think this is a very sorry position for a newspaper to be in. The Review-Journal never should have involved itself in the Righthaven scheme. I wonder if that is dawning on them now.

(Reposted from Blog Law Blog)

Free, Downloadable Casebook for Torts

This week I posted Volume One of a freely downloadable casebook for torts. After using three different casebooks over the past three years (I like changing things up), I decided to create my own for this year. It's available as a pdf through SSRN.

Not only should all instructors and students feel free to download this casebook and use it for free, but if any instructor out there would like to customize it, add to it, delete from it, etc., let me know, and I will be happy to give you the original document to work from. So, in an informal sense, it's open source. 

This casebook is extremely basic. There are no notes, no questions, no problems, and no exercises. Volume One only has cases, plus one statute. The value of the work is solely in terms of the editing. With no bells and whistles, it's not for everyone. But if you tend to use a casebook only for the cases, then mine might be worth checking out. 

At our school, torts is a two-semester sequence. So I've divided the casebook into two chunks, with the first volume corresponding to what I will teach in the first semester, which is negligence and liability relating to health care. I plan to complete a second volume for Spring 2011, which I will also make freely downloadable. Volume Two will include intentional torts, strict liability, economic torts, dignitary torts and a few other subjects.

I only have one request if you do use my casebook in your class: Please send me a note to let me know. I would be gratified to know that the work has proved useful for another instructor. 

A few notes:

I was inspired in part by Tom Field's downloadable Fundamentals of Intellectual Property: Cases & Materials, which I use in my survey class on intellectual property. Wonderful text.

The casebooks I used in the past three years were all very good. I should especially mention the book by John C. Goldberg, Anthony J. Sebok, and Benjamin C. Zipursky from Aspen Publishers, which uncovered some especially good recent-era cases that I used in my own compilation. If you are looking for a full-service torts casebook, Goldberg-Sebok-Zipursky is excellent.

I also should give a shout out to James Grimmelmann, who introduced me to one of the cases I used, Boyd v. Racine Currency Exchange, by way of nominating it in response to my call on PrawfsBlawg for the most screwed victims in caselaw history.

(Reposted from PrawfsBlawg)

Featured Free Source of Media Workparts: Pacific Media

Here's a site that has a wealth of sound effects that you can add into your multimedia project: Pacific Digital Media's Free Sound Effects.

They aren't public domain, but Pacific Digital Media has a generous blanket permission for re-use:

TERMS OF USE: You may use the sound effects on this web site free of charge in your video, film, audio and multimedia productions but DO NOT re-sell them, post on a web site for download, or link directly to individual sound files. If you use these sound effects, please consider linking back to this site but you don't have to.

I love sound effects. On this site, if you press the play buttons, as opposed to clicking on the text links, you can play multiple sounds at the same time. 

Here, if you are at the office, try this: Turn up the volume on your speakers, go to this page of miscellaneous sound effects, and start pressing all the play buttons you can. Have fun freaking out your officemates! 

Try starting with cards shuffling, champagne bottle pop, dogs barking, wind chimes, and squeeze toy, with lots of door knocking. Once you think you've got your office neighbors' attention, push it to the limit with "Hair Mousse," "Velcro Strap Pull," "Striking a Match," "Firework Explosion," "Sea Lion 1" and "Sea Lion 2." 

Awesome!

5,000 Konomarked Photos on Flickr

As part of my konomark project, I have been amassing a collection of photos I've taken on Flickr, which I have konomarked, to let people know that I am generally willing to share them for free, and that they are invited to ask me for permission to use them in their project. 

In this day and age of harsh copyright law, konomark is a way being overtly neighborly on the internet. I've described more about my konomark project on PrawfsBlawg.

I'm pleased to report that at this point, konomarked photos on Flickr now number in the thousands. There are now about 5,000 konomarked photos on Flickr that I have uploaded, plus dozens more from a few other Flickr members. 

If you are looking for photos to use in your project, search on Flickr for photos tagged with "konomark" along with whatever subjects you are interested in. There are photos from all over the United States, as well as a few from Japan and Canada. There are landmarks, vehicles, signs, abstracts, urban scenes, rural scenes, and much more. 

If you have photos on Flickr, and you would like to let other people know that you are generally happy to share them for free, tag those photos with the word "konomark" and put the following explanatory text in the description of the photos:

This photo is <b><a href="http://www.konomark.org" rel="nofollow">KONOMARKED</a></b> ("Most Rights Sharable"). If you would like to use this image without paying anything, e-mail me and ask. I'm generally willing to share. <i><a href="http://www.konomark.org" rel="nofollow">KONOMARK</a> - Most Rights Sharable. Just ask me.</i>

Google Nabs EFF Lawyer Fred von Lohmann

THR, Esq. has reported that Google has grabbed star public-interest copyright lawyer Fred von Lohmann from the Electronic Frontier Foundation to join up as senior copyright counsel. Previously, I linked to one of von Lohmann's posts on the EFF Deep Links blog about how music bloggers can keep from getting into trouble with litigious record companies. Google is usually on the public-interest side of copyright battles. Indeed, in my opinion, Google has done more than anyone else in contemporary times to push back against the unceasing expansion of copyright entitlements. But it's a mistake to think that Google is a charitably minded do-gooder. Google pushes back against copyright because it's usually in its interest to do so. But make no mistake, Google is ready to assert copyright in dubious ways when doing so is in itself interest. (See, e.g., the Google Books settlement, my takes here and here.) In 2005, von Lohmann wrote a blog post for EFF in which he described his "conversion moment." It was in 1994 when he read John Perry Barlow's essay, The Economy of Idea, which includes this passage, quoted by von Lohmann: "The greatest constraint on your future liberties may come not from government but from corporate legal departments ... " Google's a fantastic company, and I congratulate von Lohman on his new job. There's no shame in working for a for-profit company - I've done a lot of that myself. And there's absolutely nothing wrong with moving from public-interest work to for-profit work. None at all. But von Lohmann is the latest in a string of public-interest-minded IP lawyers that have been hired by Google. And that gives me pause. They can't all go. We still need great public-interest copyright lawyers. Now more than ever.

Please Help, if You Can

I'm reading Larry Lessig's new book Remix. He discusses the differences between commercial economies and sharing economies. He explains that friends do favors for one another in a sharing economy, and corporations and customers use cash as the medium of exchange in a commercial economy. He points out that if a friend missed lunch with you, it would be very odd for that friend to offer $50 to make it up to you. Okay, I buy that. But then he says this:

[I]t would be very odd if ... McDonald's asked you to "help out" by promising to buy hamburgers at least once a month .... "helping out" is not just rare in a commercial economy. It is downright weird.

Well, then, what are we to make of this ad in the current issue of the ABA Journal:

 

It reads:

If a trademark is misused it could come undone. If you didn't know zipper was a trademark, don't worry, it's not. But it used to be. It was lost because people misused the name. And the same could happen to ours, Xerox. Please help us ensure it doesn't. Use Xerox only as an adjective to identify out products and services, such as Xerox copiers, not a verb, "to Xerox," or a noun, "Xeroxes." Something in mind that will help us keep it together.

Dude, I'm sorry, but what the #@!& do I care if Xerox loses its trademark registration to "xerox"? Wow. I've got other stuff to care about. Like the lives of individual mosquitoes.

I only wish Lessig were right.

Now before you send me e-mail or respond to this post explaining to me why companies with borderline generic (or completely generic) trademarks engage in educative advertising campaigns, please stop. I know. (See Du Pont v. Yoshida, 393 F. Supp. 502, 527-28 (E.D.N.Y. 1975) (dubiously holding that "Teflon" was saved from genericide, in part, by Du Pont's diligent educational campaign).) Look, it is one thing to tell people that this way or that way is the right way or wrong way to use a word. But it is quite another thing to attempt to appeal to people's sense of right and wrong and ask them to altruistically "please help" a publicly traded corporation in its self-serving pursuit. 
Honestly, speaking, it's unbelievable. What a bunch of weasels. I'm going to go downstairs and xerox something on the Canon photocopier right now just to do it.

[Cross-posted on PrawfsBlawg.]

A Compendium of Media & Entertainment Law Materials

 I've put together a compendium of materials for courses on media law and entertainment law, and I've put it up on the web so that other teachers can make use of it. These are materials that I've used, or plan to use, in my own courses.

There are some judicial opinions in there. Judicial opinions are the staple of law-school reading. But the best parts of the compendium are the documents that are not judicial opinions. 

I'm a strong believer in assigning readings other than judicial opinions. So my compendium includes contracts, demand letters, and various litigation pleadings. These documents are especially valuable reading in entertainment law and media law, where industry custom, intimidation tactics, creative lawyering, ignorance, bullying, and fear all combine to play a role that rivals that of the law itself.

In the compendium, you will find a recording contract and a management deal for Mötley Crüe, scarily one-sided agreements for reality television participants (including Kid Nation), a television distribution deal, dressing-room requirements rider, endorsement deal, and cease-and-desist/demand letters written on behalf of Lindsay Lohan, Jennifer Aniston, and Catherine Zeta Jones. There are also some complaints, and the difficult-to-classify agreement between Britney Spears and Kevin Federline over their fake wedding ceremony.

If you use any of these materials in your class, I'd be grateful if you dropped me a note to let me know.

The Hollywood Reporter, Esq. is Back

The Hollywood Reporter is one of the two big trade papers in Hollywood, the other being Variety. A while back, The Hollywood Reporter debuted an "Esq." website feeding Hollywood legal news. I loved it. Then it went away in August 2007. 

Hooray! THR, Esq. is back, and it's very active. 

When they took it away, It was as if some judgment had been made that lawyers aren't the most important cadre of professionals in Hollywood! As if! The lawyers are at the absolute top of the period. Or, at least they are right there after the agents, producers, directors, CSAs, studio executives, actors, accountants, talent managers, DPs, editors, stunt coordinators, grips, gaffers, set decorators, dialog coaches, therapists, plastic surgeons, baristas, and writers. Well, maybe not the writers. Everyone gets more respect than the writers.

At any rate, the new THR, Esq. is fabulous stuff. And they have Pixelization listed in their list of links in the right-hand column. Thanks! 

The renewed THR platform is even better than the original. The content is excellent. 

For instance, they have a whole category devoted to Marty Singer, whose firm, Lavely & Singer, are the litigators-to-the-stars that write H-town's best nastygrams (a few of which you can find here). 

Of course they have a category for the Pellicano scandal, and Lindsay Lohan.  

Other good categories are standards and practices, the talent agencies act, and that never-ending font of billable hours: sex-tapes.