Larry Seltzer writes a provocative piece in Byte entitled "Is this Patent full of crap?" (link here)

The ideas are those of patent lawyer Andrew Schulman, but the story is full of insight on a patent lawyer's thinking and offers real clues into why the patent system is such a mess--complexity compounded, full of precedents that ordinary humans will find puzzling at best.

This encourages innovation?

Recommended reading.

While waiting in my doctor's office with nothing to read, I picked up a copy of the Washington Lawyer, the journal of the DC bar. It had a long piece on the "March Toward a National Digital Library" by Sarah Kellogg that I think worth reading. And pondering. It is online here .

A lot has been happening, but it remains slow going as the lawyers and the interest groups continue to try to find a workable deal on the remaining issues. Still the author is hopeful. But she also notes that we have had the technology to digitize print matter since 1971 when Project Gutenberg published it first e-book. Forty years. Think about that.

We as citizens with the largest stake in the public interest can take a much more jaundiced view of what has to be considered a national and global failure. The existence of the internet and the actual digitization of so much material that remains locked up is a national disgrace. At this point, keeping this material under lock and key is a tribute to the copyright monopolies that have been established and then extended in time and coverage due to their political power. The deadweight cost to human kind of these monopolies is staggering.

Why is it that there is no national clamor to end this nonsense?

The Supreme Court has found Congress can extend copyright protection to works that had previously been in the public domain link here. The decision was 6-2 with one recusal. The story is covered here and here, but focus should be on the two dissenters who held that Congress had exceeded its authority when judged by the constitutional provision that copyright was justified when it served "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."

The Court majority dismissed the minority view by saying that the current copyright interpretation is settled law and they won't change it. This keeps the arts in a box where the current copyright holder has a monopoly extending beyond his lifetime. Most often they are held by a corporation which creates nothing.

This is another step in the process of extending the reach of intellectual property law to suppress new creation and extend monopoly, to the cost of the public. One begins to wonder if this will ever change for the better.

Thomas Lin writes at length about the scientific process, peer review of results, and publication of scientific papers link here.

The concern remains that the results of research financed by the public's taxes are not available free. The science establishment turns out of be conservative, however, and is sticking to the tradition of time consuming peer review and publication in the established journals. The results are still appropriated by the journals and published at great expense but considerable profit and public access is correspondingly limited.

Still, some signs of progress are reported as taking advantage of technological changes, most importantly in the growth of the internet and the emergence of the “open web”. Open access sites include the Public Library of Science (PloS), GalaxyZoo, ResearchGate, arXiv, and ScienceOnline.

Tne traditional journals have seemingly struck back, supporting the Research Works Act now in Congress which would protect the traditional publishers through restricting access to papers and data.

Lin, however, seems convinced that the times are a changing and that access will be more open, costs reduced, the scientific process speeded up, and advantage taken of the technological changes in communication.

Writing in the New York Times, Randy Kennedy reports on a court decision that would make it illegal to use most work of others still under copyright as the basis for new works which "transform" the original link here.

"The decision, by Judge Deborah A. Batts, set off alarm bells throughout Chelsea and in museums across America that show contemporary art. At the heart of the case, which Mr. Prince is now appealing, is the principle called fair use, a kind of door in the bulwark of copyright protections. It gives artists (or anyone for that matter) the ability to use someone else's material for certain purposes, especially if the result transforms the thing used or as Judge Pierre N. Leval described it in an influential 1990 law review article, if the new thing "adds value to the original" so that society as a whole is culturally enriched by it. In the most famous test of the principle, the Supreme Court in 1994 found a possibility of fair use by the group 2 Live Crew in its sampling of parts of Roy Orbison's "Oh Pretty Woman" for the sake of one form of added value, parody."

There is lots more in the article about what is allowable as being legally transformative. The line between what is not allowed will remain in dispute until copyright is once again shortened to a reasonable period. I would argue that anything more that 10 years is excessive because the present discounted value of the income stream arising therefrom approaches zero and no longer constitutes an incentive to create as required by the constitution for copyright.

Matt Yglesias link here picks up a story on patents from Steve Landsburg link here.

The patent covers a "portable electronic device with graphical user interface supporting application switching". The effect of the patent seems to preclude any other smartphone maker from doing the same thing.

Landsburg avoids coming to a judgment about this patent, and asks the readers to argue the question. Yglesias has a more reasoned judgment:

"Sometimes critics of over-patenting lean too heavily, I think, on the idea that these abusive patents are somehow overly broad or trivial but I don't think that's the real issue here. The issue is that there's just no sound public interest case for granting monopolies over certain features to the first-to-market firms in this industry. Apple has already gained a very large competitive advantage from the fact that they were the first people to deploy a working touchscreen smartphone and even without patents clearly has a strong financial need to continue investing in improving its product lest lower-margin Android-powered phones eat away at its profits."

But I don't think that goes far enough in this case. We now have an industry dominated by two or at most three huge firms (counting Google). The many small firms are sources of innovation but are simply bought up by the biggies when they are very innovative and successful. The lawyers are running rampant.

The big three should be broken up as dangerous with their dominant market power.

These were collected in the course of other research by Azeen Ghorayshi and put online as a slide show by Mother Jones magazine link here.

My favorite is #6 in the slides called "method of concealing partial baldness" patented on May 10, 1977. Here is the illustration for the patent which should have been denied on the grounds that it was already in wide use among the balding. .

Really makes me feel confident of the wisdom and judgment of the patent office and it has been that way for years and years. What happened to good sense.

Matt Yglesias takes up the patent issued Google on its driverless car link here.

But that characterization isn't quite right. In fact the software patent is on the method allowing the control to pass back and forth from machine control to human control. More precisely, "the use of a predefined landing strip" or "programming a predefined route into a vehicle, or having a computer control an autonomous vehicle that follows a route based on information stored in the computer".

Matt notes that the world gains from this in terms of safety and efficiency. However he questions the patent grant on the grounds that another monopoly has been established by stealth. Fortunately, the patent will be worthless once the world switches to full time computer control of the car. But in the meantime, we will all pay in higher prices.

Matt Yglesias had two good blog posts on copyright yesterday, making a quite telling argument I had not seen before. The first post looks at the nature of "theft" implied by the use of the term piracy link here. He basically argues that it is not the usual form in which I deprive you of your property when I take an object and that therefore we can be much more relaxed about it.

The second looks at who benefits from copyright protection for things on the internet and whether it makes much difference in the incentive to create link here. Most violations occur on the internet where the returns to the creator for the high earning books and movies have become enormous; that constitutes, if anything, an incentive to produce less.

In short, why should public moneys be spent to guarantee ever higher, not to say exorbitant, returns to copyright owners? This is not the sort of argument lawyers will find attractive, but why trust their judgement since they are big gainers from enforcing prosecution. Better not to have the public pay for enforcement and make the lawyers earn their generous take.

Our former fellow blogger, Larry Lessig, has a new book out and it has been reviewed today in the New York Times link here .

The review is favorable, arguing that the book is on the side of the public interest, but at the same time, critical because it concludes the proposed cure for bad law flowing from special interest money in policy making is unlikely to succeed--the interests on the other side just have too much at stake.

In the end, the book implies that the cure for what ails the body politic will be found in voter education and that will involve a long wait.