One of the main arguments put forth by the copyright reformist camp is that the term of copyright has gradually been lengthened until now it's as long as life of the author plus 70 years. Incentives all the way to the grave and beyond, if you will; but this doesn't bode well for innovation and is increasingly problematic with more legal wrangling and wasteful rent seeking.

IP advocates like to analogize IP to physical property insofar as they can, while noting obvious differences too. See, for example, Frank Easterbrook's essay "Intellectual Property Is Still Property." (No link available, but it's reprinted in Adam D. Moore, ed., Information Ethics .)

Physical property, as everyone grants, has no term limit, unlike IP. Physical property also never enters the public domain, although it can be abandoned, and then re-homesteaded by a new owner. IP does enter the public domain though, after the expiration of a copyright (or patent).

Lysander Spooner , a 19th-century opponent of slavery and, eventually, of the U.S. Constitution, thought this was bizarre. In his uncompleted 1855 tract The Law of Intellectual Property , he argued for a perpetual right of property in ideas, and stated that it: "is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle , exists between the two cases" (p. 30). (Spooner's italics.)

So here's my challenge to lawyers such as Frank Easterbrook, Lawrence Lessig, and William Patry: if you really believe that IP is property and that IP holders' rights should be protected just as their rights in their material property are, why not overturn Sonny Bono and extend copyrights (and patents) indefinitely, as long as the underlying IP has not been abandoned by its owner(s)? So why stop a mere 70 years after an author's demise? Presumably this would also put an end to rent seeking and endless lawsuits.

Failure to do so strikes me as prima facie evidence (to quote my old monetary theory prof. in another context) that IP is not property, and in fact is just an old fashioned monopoly. In other words it's the monopoly formerly known as intellectual property. And where there's a monopoly, there's bound to be a gaggle of lawyers chasing from behind.

The United States Puritanical values collided with its neoliberal ideology in passing a law that prevented online gambling. Several companies -- Microsoft, Google, Yahoo -- just paid fined for posting ads for Internet gambling. Antigua and Barbuda protested since the US allows other forms of domestic gambling. They demanded huge compensation for their loss of business. The WTO judgment offers a much smaller amount, but it gives the country the right to violate intellectual property up to $21 million.

Kanter, James and Gary Rivlin. 2007. "In Trade Ruling, Antigua Wins a Right to Piracy." New York Times (22 December). link here

"Antigua and Barbuda won compensation from the United States on Friday in a long-running trade dispute about gambling, but the amount was far lower than the tiny Caribbean nation had been seeking. A World Trade Organization (WTO) arbitration panel granted Antigua's request to levy trade sanctions on U.S. intellectual property, for instance by lifting copyright on films and music to sell it themselves, prompting concern from Washington."

"The WTO panel said Antigua was entitled to compensation of $21 million a year from the United States for being shut out of the U.S. online gambling market. The ruling is only partial consolation for the former British colony, which built up an Internet gambling industry to replace declining tourism revenues, only to find itself shut out of the world's biggest gambling market."

"The award falls far short of what Antigua had demanded -- $3.44 billion in "cross-retaliation," allowing it to seek damages outside the original services sector. Washington had argued Antigua was entitled to only $500,000 in compensation."

Patent Troll still anonymous provides a rundown on patent suits for the year against large companies like Microsoft. He then summarizes the situation thusly, "Before I give the list, my conclusions: patent litigation is out of control. Out of the top third of the companies in the Fortune 100 sued for patent infringement over the last two years (plus adding in Apple and Google), these 35 companies were sued 500 times in that two-year period! That's an average of over 14 times per company."

For more details, go to the Tracker's website for Dec 21 2007 link here.

David Pogue ends his latest blog posting, saying "I do know, though, that the TV, movie and record companies' problems have only just begun link here. Right now, the customers who can't even *see* why file sharing might be wrong are still young. But 10, 20, 30 years from now, that crowd will be *everybody*. What will happen then?" His piece is an extended survey of various audiences, using a range of hypothetical situations involving copyright violations, ending with the question, how many in the audience see that practice as wrong. Very few of them do.

I speculate that economics teaching has succeeded in persuading most people that monopoly is wrong and that charging more than the marginal cost for an item is a violation of the free market.

Know hope!!!

Of all the arguments for IP, the argument that somehow existing inventions can be diffused more quickly if only someone has a monopoly over them is the one that has the least theoretical or empirical support. But the mere absence of facts is no bar to making the argument. Via Stefano Trento, here is an entire manual devoted to that proposition. To quote "It is well established that intellectual property advances product development because intellectual property provides incentives for R&D, commercialization, and product distribution." This is, of course, not well established, and while it is true that IP provides some incentives and disincentives for R&D, it is almost certainly not true that it provides incentives for commercialization and product distribution.

For some years now, we have seen the term of copyright protection extended in country after country. The latest to join this move has been South Korea, where the "copyright period for royalty payments will be extended to 70 years from the current 50 years after the original copyright holder dies, as a step to meet the requirements of the 'provisional' free trade agreement (FTA) between South Korea and the United States link here."

It is probably the case that few in South Korea opposed the copyright change, though publishers have complained about increased cost and complexity. To buy them off, the government has promised 160 billion won ($173 million) in aid. There remains considerable opposition to the overall FTA as a surrender of Korean sovereignty and a loss of competitiveness against the economic giant of the West. The strongest opposition is generated by farm groups who do not want to give up protection for their high priced farm sector.

Passage of the FTA remains problematic in both the US Congress and the Korean National Assembly. It will be interesting to see how the just elected conservative Grand National Party presidential candidate, Lee Myung Bak, handles the matter; he is generally thought to be pro-business and was elected on a pledge to get the economy growing faster. If the FTA is not approved, it is unclear whether the copyright extension will remain.

I didn't mention in my earlier post on the Patent Troll Tracker, but its author(s) remain(s) anonymous link here. A well-known patent attorney on the other side of the troll issue has offered a $5000 reward for the Tracker's identity and recently raised it to $10,000. The Tracker is clearly having some success in getting under the Troll's skin. But legally, as Techdirt's Mike Masnick points out, the Tracker has a legal right to remain anonymous. It undoubtedly makes his research easier.

The ever valuable Research on Innovation has its latest issue. There is a discussion of software patents: has the sky fallen? I'm not sure that it is a good argument in favor of patents that they don't cause the sky to fall, by the way. And there is a discussion of Petra Moser's latest research into 19th Century patents: what is striking is even where patents were available, they weren't so much used in that "golden age of patents."

You may be aware of various lawsuits against such major pirates as the Boy Scouts of America over violating copyright by singing songs around the campfire; via Christian Zimmermann the situation is apparently no better in Britain.

I recently mentioned the patent troll site link here. To give you a sample of its work, here is a paragraph posted today on patent suits filed and the number brought by trolls:

"Here are the cumulative statistics for the first 11 months of 2007, comparing the various districts. Note that I got an email from someone who had numbers run independently, and I am told I have undercounted the number of cases by X and the number of defendants in EDTX by Y. As I said above, this is really a judgment call. I may not have counted all of the bifurcated Judge Clark cases while someone else may have. Either way, even if my numbers are low, they are astoundingly high compared to history:

"ED Texas: 343 patent cases, 1,320 defendants sued (140 troll cases)

CD California: 251 patent cases, 647 defendants sued (17 troll cases)

D New Jersey: 176 patent cases, 329 defendants sued (13 troll cases)

D Delaware: 128 patent cases, 310 defendants sued (16 troll cases)

ND California: 127 patent cases, 240 defendants sued (19 troll cases)

ND Illinois: 125 patent cases, 231 defendants sued (23 troll cases)

SD New York: 95 patent cases, 244 defendants sued (13 troll cases)"