William Patry has a good blog post on the attempts by record labels to legally attack sellers of promotional CDs, as well as pawn shop owners. Stores in Florida have to apply for a resellers' permit, take a thumb print of CD sellers, and make a copy of their drivers' licenses. They also have to wait 30 days before selling CDs.

Apparently the record labels claim the first sale doctrine doesn't apply because resale is proscribed by the license terms.

The comments are interesting, including Crosbie Fitch's. In their comments, Prof. Patry and copyright lawyer LKB note the Pro-CD v. Zeidenberg case (1996), which enforced shrinkwrap licensing restriction for a telephone directory CD.

Here is a 1998 comment on shrinkwrap licensing by copyright lawyer Pamela Samuelson.

Note her discussion of Judge Easterbrook's decision why copyright shouldn't override a shrinkwrap licensing agreement in this case--and a bit further down Bill Gates' dismissal of a question about "fair use" by a Microsoft summer intern.

"Fair use"--isn't that what slaveowners consented to when they let their slaves visit town once in a while?

And regarding Easterbook's third reason for ruling for Pro-CD--that it wouldn't be able to recapture its investment in the telephone directory data if users could upload the date for free: what if on day one slavery were legal; on day two a slaveowner invested in new slaves; then on day three the legal authorities ruled slavery illegal, thus making his slave investment worthless? Would Judge Easterbrook rush to the defense of the slave owner, citing his concern about averting a "market failure," which would occur if the value of slaves plummeted to zero?

(Never mind that his idea of "market failure" is not what economists conventionally mean by that term.)

As a neophyte in IP, I am repeatedly struck by the absurd level to which protection has been taken. Matt Yglesias has a short but striking example involving Senator Schumer's proposed copyright for fashion design and refers us to this website link here. Its authors point out, "To understand exactly how the Schumer bill would affect fashion innovation, it helps to review one basic point about copyright law: it does not simply prohibit "exact" copies. Rather, copyright law makes unlawful any use of a copyrighted work that results in a new work that is 'substantially similar' to the old."

Yglesias then goes on to compare the vitality of the cookbook industry based on the fact that recipes cannot be copyrighted, even while the cookbook can be link here. Without that, he suggests, "the bulk of the market would already be locked-down by older cookbooks, and to publish anything new you'd have to be prepared to lawyer up and fight off a thousand lawsuits alleging that your recipes are too derivative."

Part of the Pierce Law IP Mall

Old Texts and Articles

If anyone knows of others, please let us know.

Lawrence Lessig has a nice post (link here) on his blog -- and given how busy he's been lately, new posts are always welcome -- on the frequent disconnect between free market ideologues and network neutrality proponents over what could possibly be wrong with letting the big telecoms and cable companies have control over not just prices but content on the internet. In this case, the culprit is AT&T and their censoring of Pearl Jam.

The New York Times has a really crazy op-ed article today on the high cost of textbooks link here. The author, Michael Granof, a professor of accounting at the McCombs School of Business at the University of Texas, a textbook author, and the chairman of the university's Co-op Bookstore, claims that it is the second hand book market which keeps prices on new books high that is the only way publishers can recoup their costs. He also claims that the second hand text market is highly organized, competitive, and cheap. If that were true and the old and new texts were even just roughly equivalent, publishers couldn't sell many new texts. Granof acknowledges that text prices are very high and has some ideas for improving matters, as he notes publishers "try to discourage students from buying used books by bundling the text with extra materials like workbooks and CDs that are not reusable and therefore cannot be passed from one student to another." He would have publishers sell site licenses to the university planning to use the text and charge students appropriate fees. The real solution is that proposed by David Levine put the text on line and ignore the question of what publishers charge for hard copies. If anyone wanted a hard copy, he could pay to print it himself. That way, the author can alter the text as often as he wants, as intellectual honesty requires, as pedagogical effectiveness suggests, and as current developments in the discipline would seem to require. Granof has some justified criticisms of the Advisory Committee on Student Financial Assistance which was asked by Congress to suggest a cure for the problem of high text prices. His bottom line: "Unfortunately though, the committee has proposed a remedy that would only worsen the problem by doing nothing about the second hand book market."

Three rent seekers are suing Mark Zuckerberg, the founder of Facebook, claiming he stole the idea from them. Here is the story .

From the article by Jason Pontin:

But in the absence of any formal contract, the twins are, in effect, arguing that they have rights to Mr. Zuckerberg's imagination and experiences. In my book, that would be a constraint on the free marketplace of ideas.

Bingo! And as John Perry Barlow pointed out, ideas (or imaginations) are experiences. They can no more be owned than someone's labor (an activity) can be. If they can't be owned, how can they be ripped off? (The labor angle is important in refuting so-called Lockean claims for IP.)

The Berkman Center for Internet & Society, Harvard Law School, is sponsoring an online discussion group focusing on the history of what it calls intellectual property in the U.S.

Anyone at least age 13 can participate.

When I registered this was part of the page: ---

Here is Lewis Hyde's invitation to the reading group:

My own interest in this history began with the surprising lack of debate some years ago when copyright term extension was pending. There seemed to be almost no public sense of why it might matter to preserve a lively public domain. One was led to wonder if there weren't historical roots to the public domain's lack of presence in our political and economic discourse. If that is the case, might not an understanding of this history be a useful tool for those of us trying to shape current policy?

For a reading group I propose an initial meeting in February where we talk about the scope of our interests, and make a list of what we might read. I suggest one short first reading (Carla Hesse's "The Rise of Intellectual Property, 700 B.C.--A.D. 2000" (Daedalus, Spring 2002)). As for other readings, we will decide these together but at the moment my own list would include works such as Mark Rose's "Authors and Owners," Siva Vaidhyanathan's "Copyrights and Copywrongs," and Edward Walterscheid's recent book on "The Nature of the Intellectual Property Clause." Navigation Project Home Syllabus Readings / Resources Rotisserie Discussions Message Boards

You can click on a link here to register:

GrepLaw.org, History of Intellectual Property .

Here is where I found it:

The Invent Blog .

I wonder if a certain forthcoming book might be discussed at this site?

One of the grandest attempted thefts under the guise of IP has been the effort of SCO to hijack Linux. This seems to have come to an end: Groklaw, which has been following the case intently reports that the judge in the case has ruled that SCO doesn't even own the copyrights in question.

This is also a sad tale of a lawyer gone bad. David Boies who rose to fame by making a monkey out of Microsoft as a government lawyer, and who won our sympathy for defending Napster against the RIAA seemingly turned to the dark side - taking most of SCO's money on a worthless lawsuit that seems to have been designed mostly to bilk investors.

Just when you thought airline delays and dirty planes couldn't get any worse comes an article in today's Wall Street Journal that gives airline passengers hope: "Case of the Vanishing Airport Lines" .

Alaska Air created a check-in process eliminating lots of airline counters (see the graphic) that reduces waiting time. But sad to say it, they patented this 4-step business process.

Step 1: Bypass ticket counter and go to a self-service kiosk.

Step 2: Check in at the kiosk, get boarding pass printed at kiosk.

Step 3: Leave luggage at bag drop station where bags are tagged.

Step 4: Go to security screening.

What's novel and non-obvious about any of this?

Self-service kiosks? Nope.

Checking in at kiosk, getting a pass? Nada.

Leaving luggage with an attendant, who bags it? Nein.

Going to screening? Non.

Can you say "bogus patent"?

It turns out that the firm took out the patent not to keep competitors at bay, but to reward those employees who worked on this, supposedly.

Supposedly, since Delta Airlines has done something similar in Atlanta, after viewing AA's setup in Anchorage. Will AA sue? If not, what's the point of getting a patent to reward its employees? Where are the rents if other airlines aren't prevented from building similar systems? Are they saying they just want to waste their shareholders' money paying patent lawyers? Or maybe they are reluctant to sue because they think their patent would be challenged, causing further litigation and more hard-earned shareholders' money to wash down the drain. Especially since the legal climate seems to be shifting away from patent holders, at least a little bit.

In our book Michele and I point out how most modern IP law arose not from a problem that there was too little innovation and creation that needed to be solved, but rather that in a mature industry, aging firms no longer willing to compete in the market successfully lobbied government for protection from competition in the form of IP laws. Once again...the New York Times reports

Senator Charles E. Schumer, Democrat of New York, talked about a bill proposing to extend copyright protection to fashion that had been introduced in the Senate last week, mirroring one that has been under consideration in the House since April 2006.

As has been well documented - for example by Raustiala and Sprigman - there is both rampant piracy and rampant innovation in the fasion industry. There is no problem here for goverment to fix. There are firms that would like a monopoly so they can earn more money. Wouldn't we all like that?

You can find some further blog discussion by Sam Boyd and the invaluable Matt Yglesias.