Click here to see and hear Weird Al Yankovic's "Don't Download This Song." It's great!

Hat tip: Roderick Long

From the Associated Press today:

Every day, millions of students taking online college courses act in much the same way as their bricks-and-mortar counterparts. After logging on, they move from course to course and do things like submit work in virtual drop boxes and view posted grades - all from a program running on a PC.

It may seem self-evident that virtual classrooms should closely resemble real ones. But a major education software company contends it wasn't always so obvious. And now, in a move that has shaken up the e-learning community, Blackboard Inc. has been awarded a patent establishing its claims to some of the basic features of the software that powers online education.

The patent, awarded to the Washington-based company in January but announced last month, has prompted an angry backlash from the academic computing community, which is fighting back in techie fashion - through online petitions and in a sprawling entry for the online dictionary Wikipedia that helps make its case.

Critics say the patent claims nothing less than Blackboard's ownership of the very idea of e-learning. If allowed to stand, they say, it could quash the cooperation between academia and the private sector that has characterized e-learning for years and explains why virtual classrooms are so much better than they used to be.

Read the rest here.

A Wall Street Journal ($$) editorial today warns that an obscure section of the old Smoot-Hawley tariff permits American companies to strike against their competitors by having the government block imports that allegedly infringe their patents. The Journal sees a threat to the mobile networks that depend on imported telephones. Here are some excerpts:

The peril comes from the International Trade Commission (ITC), an obscure federal agency that typically deals with trade but suddenly is telecom central. There are currently cases before the ITC affecting virtually every mobile-phone operator in the country and most of the largest handset makers in the world. Ericsson and Samsung have filed complaints against each other, and Qualcomm has sued Nokia. Broadcom, a chipmaker that owns patents for mobile-phone technology, has filed against Qualcomm, which supplies chips used in new phones sold by Verizon and Sprint.

All of these companies are seeking an edge against their rivals via "exclusion orders," which would ban the import of products said to violate U.S. patent (yes, patent) law. Depending on how the cases are ultimately decided, millions of cell phones could be barred from the U.S. market at a cost to the phone makers and network operators of billions of dollars.

The ITC was established in 1916 as the U.S. Tariff Commission. Smoot-Hawley gave it the authority to review claims of "unfair trade practices" based on patent infringement. If a company with U.S. operations believes a competitor is importing a product that infringes on its intellectual property, it can bring a Section 337 claim to the ITC. An administrative law judge then hears the case, and he can issue an exclusion order barring imports of the infringing product for the duration of the patent. The order is also subject to the review and approval by the six-member, bipartisan ITC board.

Incredibly, all of this takes place separately from normal judicial proceedings on patent infringement or validity. Most of the cell-phone cases mentioned above are also in court on patent-infringement grounds, but these cases can take years and are subject to lengthy appeals. The ITC tries to discharge Section 337 cases in about a year, and will not wait for the courts. Once the ITC votes on the judge's order, there is only one avenue of appeal: The President has 60 days to override the ITC's order. If he doesn't act, the import ban takes effect....

The big picture here is that the ITC has emerged as the patent bar's venue of choice to evade this year's Supreme Court decision in eBay. That ruling raised the bar on permanent injunctions in patent-infringement cases. But the ITC isn't subject to eBay, remarkably enough, so lawyers and patent holders have descended on the agency for a quick protectionist hit.

Oh, what a tangled web we weave....

The New York Times reports that Major League Baseball claims to own the commercial use of baseball statistics. If MLB prevails, unlicensed commercial fantasy-baseball operations would have to cease operation. Says the Times:

The dispute is between a company in St. Louis that operates fantasy sports leagues over the Internet and the Internet arm of Major League Baseball, which says that anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license. The St. Louis company counters that it does not need a license because the players are public figures whose statistics are in the public domain.... The case is scheduled for jury trial in United States District Court in St. Louis beginning Sept. 5. CBC and Major League Baseball Advanced Media filed motions for summary judgment that the court could rule on in July.

MLB already licenses operations that use player photos and team logos. But according to the Times:

Major League Baseball Advanced Media, which runs its own array of fantasy games on the league's portal, MLB.com, has decreased its number of licensees from dozens in 2004 to 19 last season to 7 this year, focusing on large multimedia outlets like CBS SportsLine and cutting out many of the four-figure licenses that had covered smaller operators' use of only names and statistics. CBC, which had a license from 1995 to 2004, filed suit to confirm that it has the right to use those limited materials freely.

Interestingly, baseball once took a different position:

When several major leaguers from the 1940's and 50's sued Major League Baseball over use of their names and statistics in materials like promotional videos and game programs, baseball argued that such use was protected by the First Amendment.

Is any comment necessary?

Cross-posted at Free Association.

The maker of the BlackBerry wireless e-mail service, Research in Motion (R.I.M), has more patent troubles, and it's fighting back. I don't want to go over the full case against patents, or intellectual property (IP) rights in general, but I do want to restate a powerful argument made by others, such as N. Stephan Kinsella. Some pro-IP folks think it is self-evident that if someone originates an idea he has a natural right to control the manufacture and sale of devices that instantiate that idea. After all, he thought it up. He exerted creative effort. Property rights are said to flow from that creative exertion.

It can't be. No ownership rights flow from thinking, regardless of how important thinking is to production. Ownership flows from other factors, and there are no gaps in the emergence of property rights that have to be filled in by creative thinking. Using Occam's Razor, we just don't need mental effort to justify property rights.

To see this, imagine that Howard Roark's evil twin enters your land without permission and uses your building materials and tools to create an acclaimed and original architectural marvel never seen before. Does this Roark have any rights whatsoever to the building? Of course not. Not even a scintilla of a claim. Why not? Because he didn't own the land or the materials. No degree of creative genius could transfer ownership to him. (And he could not gain ownership by mixing his labor with already owned things.) The real owner has every right to destroy the building without paying Roark a penny.

On the other hand, if Roark had legitimately owned the land and materials, the creation would clearly be his. His prior ownership of the elements of his creation would be sufficient to justify his ownership of the building. Thinking up the ideas embodied in the product adds nothing as far as his property rights are concerned. Prior ownership or original appropriation of unowned resources is not merely necessary to property rights in a product, it is sufficient.

The point is not that thinking is unimportant, only that it is irrelevant to the generation of property rights.

Cross-posted at Free Association.

From today's New York Times:

Do not bother hitting the "reload" button or clearing the cache in your Web browser it will not help. Tuesday's hauntingly familiar headlines about a patent-infringement lawsuit against BlackBerry maker Research in Motion are, in fact, new. The lawsuit, filed by software company Visto, seeks to shut down the popular (and, for some, near-addictive) BlackBerry wireless e-mail service less than two months after a similar suit from patent holding company NTP was settled. . . . There is an important difference between the NTP suit and the latest suit against Research in Motion. Unlike NTP, an entity that lacked business operations, Visto actually competes with Research in Motion, as Forbes.com points out.

Visto co-founder and senior vice president Daniel Mendez was quoted saying, "We're not seeking a royalty, we're seeking an injunction."

Keith Olbermann reported last night on MSNBC's "Countdown" that the new owner of 85 percent of Elvis Presley Enterprises intends to start licensing Elvis impersonators. No license, no impersonation. (Read about it here.) If this stands, it means that no one will be free, without permission, to dress in a particular way, grow one's hair and sideburns in a particular way, wear a particular kind of sunglasses, and sing particular songs in a particular style in public. "If we were going to do a show that was based on Elvis impersonators, then obviously it wouldn't make sense to have unauthorised Elvis impersonators," Robert Sillerman said.

Does someone want to argue that IP doesn't entail the violation of individiual liberty?

My latest column in The Freeman, the magazine I edit, summarizes Michele Boldrin and David K. Levine's chapter on the world pharmaceutical industry in their book, Against Intellectual Monopoly. The column is here (pdf).

From CNET News.com:

For the last few years, a coalition of technology companies, academics and computer programmers has been trying to persuade Congress to scale back the Digital Millennium Copyright Act.

Now Congress is preparing to do precisely the opposite. A proposed copyright law seen by CNET News.com would expand the DMCA's restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers....

The 24-page bill is a far-reaching medley of different proposals cobbled together. One would, for instance, create a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding copyright law, who have been backing federal legislation that veers in the opposite direction and permits bypassing copy protection for "fair use" purposes....

But one of the more controversial sections may be the changes to the DMCA. Under current law, Section 1201 of the law generally prohibits distributing or trafficking in any software or hardware that can be used to bypass copy-protection devices....

Smith's measure would expand those civil and criminal restrictions. Instead of merely targeting distribution, the new language says nobody may "make, import, export, obtain control of, or possess" such anticircumvention tools if they may be redistributed to someone else.

The bill would permit wiretapping in investigations and civil forfeiture penalties. The full article is here.

According to the Boston Herald, Royal Philips Electronics has filed a patent application for a device that would permit broadcasters to stop television viewers from channel surfing to avoid commericials. The channel would freeze up for the duration of the ads. Sounds pretty bad. But have no fear. According to the Herald, "The company also said it had no plans to use the technology in any of its products."