While this story is by no means over, it seems to suggest a bit of blue sky is about to open for those opposing the RIAA demands for rich compensation from those convicted of music piracy. In the case of UMG v. Lindor, the defendant argues that the penalty allowed under the law is excessive, $750 a song, unconstitutionally far exceeds the actual value of what was stolen which she argues is about 70 cents a song. The judge has ordered the plaintiffs to report their actual expenses incurred and they have responded that they can't except at great expense. Eric Bangeman offers a good discussion of the legal issues involved link here.

I suppose that if the per-song penalty is set low enough, the RIAA and its members will not have much of an incentive to sue it would cost too much. But that is probably why the final outcome will depend on the result of appeals.

As reported in the New York Times, a judge in the Niagara Falls, New York, city court, more or less went beserk when a cell phone rang in his court. After threatening to jail everyone in his presence (except of course the court emloyees) unless the owner of the phone 'fessed up, he impertinently inquired of the defendant in front of him, Reginald Jones, if he knew who owned the phone. When the perplexed Mr. Jones answered that he did not, the judge scuppered his plan to release him, set his bail at $1,500, and ordered him into custody.

Here is the story.

The judge is going to be removed, so there is some semblance of justice here.

In a free market court system (see David Friedman, The Machinery of Freedom; William Woolridge, Uncle Sam the Monopoly Man; and Murray N. Rothbard, For a New Liberty), the judge would be fired and good luck to him obtaining work as a judge again. And it wouldn't require a government commission to do it--at taxpayer expense, thank you.

Why small businesses might prefer open source/free software.

The free software movement is one of the bright lights in the darkness of modern copyrights and patents. For an outsider (I actually write and distribute software under the GPL, so I'm not strictly speaking an outsider), the movement often seems caught up in making distinctions that seem almost trivial - "open source" versus "free software" or "intellectual property" versus "copyright and patent." Richard Stallman, one of the leaders of the movement, especially prefers that we be precise in our terminology. Anyway I'm not posting to complain - I'm posting to remind us all that they are right and seemingly subtle distinctions matter.

I was reminded of this in a long email from Chris Anderson (as usual I am horribly slow to actually get around to posting - the email is from September 20) pointing out some imprecision in our book. In particular he raises the issue of whether the Solaris operating system is actually open source. But I thought especially interesting his discussion of star office:

like the open solaris project, the open office project is an open source version of a proprietary product from sun micro systems. sun opened up the source code that star office is built on, but the star office product contains fonts, clip art, and other stuff that is owned and licensed by sun. so, sun still sells star office and solaris, and sun donated most of the source for those products to the community, and subsequent proprietary versions of both products are based on those open source codebases, but star office is not open source in the way that gnome office or Koffice are in that you can just download the working version fully branded. you can download open office free in an easily installed format for a number of operating systems for free and are free to distribute it as you like.

The point is an important one: you can download open office for free and make changes to it and redistribute it. You can download star office for free, but you cannot make changes to it or redistribute it. This is not a trivial difference.

This is a few days old, but I don't think anyone posted about it: the catfight between NBC and Apple over online music distribution. Mauro Mello Jr. calls our attention to a nice article. Will the music industry ever stop cutting its own throat?

I had corresponded with Tom Bell a while back, and he sent me some interesting stuff I've been planning to post almost forever. Justin finally beat me to the punch, so let's see if I can't get caught up. Tom summed up what he does pretty well:

By way of background, I am a law professor who has long had an interest in IP policy. You can find my print publications at tomwbell.com and my blog posts at agoraphilia (a sort of catch-all blog, hosted by my friend, economist Glen Whitman), techliberation.com (dedicated to technology and telecommunications policy), midasoracle.org (focusing on prediction markets), and money law (where I and other legal academics apply quantitative tools to our profession).

I'm on sabbatical, this semester, and aim on finishing a book called, "Intellectual Privilege: Copyright, Common Law, and the Common Good." From the title alone, you can guess something of the line of argument I plan to take. Judging from your academic papers, and your blogging at "Against Monopoly," I imagine that you'll find my approach to copyright agreeable.

We had some interesting discussion of my observation that lawyers often are quite skeptical of IP. I found Tom's response quite interesting:

I don't doubt you're right that lawyers--or at least legal academics--prove more skeptical of IP than economists. And you may well be right that it's because people who work in the law know its limits so well. But I'd peg as a contributing cause something less commendable: a distrust of market processes. Among legal academics, at least, I find any invocation of property rights likely to raise skeptical replies. I guess I'm an odd bird in that regard, as I very much like property rights--*in tangibles.* Indeed, my criticisms of IP turn in part on my concern that they do not qualify as property rights, really, and that they might even weaken support for the real and chattle property rights that I so profoundly respect.

This story

By changing the word 'a' to 'the' and adding the phrase 'purchasable through a shopping cart model,' lawyers for Amazon.com have apparently managed to reinstate two of CEO Jeff Bezos' 1-Click Patent claims that were rejected a month earlier. 'Patent Owner's Rep was informed that the proposed addition to the claims appear to place the claims in condition of patentability,' writes the USPTO in its Ex Parte Reexamination Interview Summary of the 11-15 conference call that was held with five representatives of the USPTO and patent reformer Amazon.

from Slashdot wasn't the most promising start of Thanksgiving. But appearances can be deceiving. Peter Calveley, the New Zealander who filed the patent challenge (with our support I might add), writes in to call attention to a post on his blog explaining why this is defeat for Amazon - or what is more salient, victory for the rest of us. The key point is the blocking technology point. Amazon's original claims were so broad they blocked the use of one-click for practically anything to do with making a purchase. The revised claims are specifically in the context of the shopping cart model - Peter points out that in the future innovation in payments systems will not be in the context of a shopping cart model.

Two small stories in the NYTimes report on more silliness in the IP field link here. In one, "Louis Vuitton, the luxury goods maker, has won a French lawsuit that contended that a music video by Britney Spears violated counterfeiting laws." What did Spears do? In a video "Ms. Spears appears in a pink Hummer; one shot shows fingers drumming on a dashboard upholstered with what looks like a Vuitton design, embossed with the LV logo." She should have used a Renault.

In the other, "the Red Hot Chili Peppers are suing Showtime Networks over the new television series "Californication," which is also the name of the band's 1999 album and one of its songs." What next?

These make me think these suits are mainly brought for the publicity they get.

Mike Masnick picks up on what is wrong with copyright law we are all constantly infringing link here. The story is so well told, I won't try to repeat it but it makes clear what a travesty that law and its interpretation and enforcement have become a total embarassment. Read it.

Tom Bell has a great work-in-progess book on Intellectual Property (which he convincingly argues should be renamed Intellectual 'Privilege' and not be confused with 'property').

Read it here.

Hat tip: Larry Lessig.