Mike Masnick takes up the question of the conflict between copyright and freedom of expression link here. I have to admit it came as a revelation to me. Is there any way to argue that copyright doesn't limit one's freedom of expression? If you think it does as I now do, then your argument conflicts with the First Amendment of the Constitution which says "Congress shall make no law... abridging the freedom of speech...."

This provision clearly conflicts with Article 1 Section 8 which gives Congress the power "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;...."

I am no lawyer, but since the first amendment was passed on March 4, 1789 after the Constitution was ratified on September 25, 1789, it would logically override that part giving Congress such power (for dates link here). Of course, there is never any certainty about how the Supreme Court may decide an issue.

Mike recommends a book which I haven't read yet, but his statement is pretty strong. He says David Lange and Jefferson Powell, the authors of No Law, "spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment." They apparently backslide in the second half.

I do take personal exception to Mike's comments on the State Department officials toadying to the IP interests. As a middle aged and fairly senior diplomat, I had to try to enforce our IP agreements with the Korean government. I had no option to express an opinion, but instead was told to enforce what I was told was the law.

Ron Coleman writes an essay well worth reading on how trademark law has morphed into perverse measures at the hands of IP attorneys and big businesses looking to protect their turf in response to overall changes in the IP landscape.

A small sample:

Many "IP enforcement" attorneys believe that while there is no shortage of bona fide infringement to occupy at least a large number of them, trademark law practice has, to a very large extent, descended to an anti-competitive methodology utilized by dominant market players not to prevent consumer confusion, as was its original rationale, but to reduce consumer choice and overall welfare by preventing competition. For them, the signal development enabling this "evolution" must be widespread acceptance, on extremely dubious authority, of the doctrine of "initial interest confusion" ("IIC") in trademark as a substitute for the traditional standard requiring that a finding of infringement be based on evidence of a "likelihood of confusion" between the plaintiff's trademark and the device, words, or other branding mechanism utilized by the defendant.

Access the entire article through Mr. Coleman's blog here:

http://www.likelihoodofconfusion.com/?p=6576

Read the details and context of his statement over at BoingBoing.net here:

http://www.boingboing.net/2010/09/13/jean-luc-godard-dona.html

When people get sued for online piracy, it is usually thanks to firms who troll on file sharing sites and analyze who is there, collecting IP addresses to build a case. The Swiss Federal Court has recently ruled that IP addresses are private and thus fall under strict privacy laws. This means they can only be used for criminal cases, whereas online piracy falls under civil law. This puts the incriminated firm, Logistep, out of business.

Note that the Swiss Federal Court is not a constitutional court in the US sense, as it only interprets federal law. Thus the Swiss Parliament could reverse this decision by adopting a law.

Hat tip: ars technica

The Economist takes a bleak look at the internet's prospects, seeing it fracturing because of national and language differences, and anti-competitive forces among service providers link here. It seems that there is little individual users can do about the first two, as the likes of China puts up barriers in the national defense interest or to reflect national differences in cultural norms on pornography, for example.

But we can do something about the drive to carve up the internet by patented technology or by rules that cement the powerful ISPs in place against possible competition by not mandating net neutrality or not mandating that big ISPs offer small ones open access to their networks at wholesale rates to restore competition. Indeed, based on the experience of other countries with the latter rule, it would be the best alternative.

In the end, the bleak look is softened by The Economist's usual on-the-one-hand-and-on-the-other outlook such as, 'Yet predictions are hazardous, particularly in IT." I wouldn't hold my breath unless the consumer is heard and is listened to.

Via Conceivably Tech, we learn that Microsoft was granted a patent for the shutdown procedure in Windows. If I understand it right, Microsoft is now the sole owner of the procedure asking whether you really want to close an application with unsaved data.

Note that the patent does not seem to cover the most annoying aspect of a Windows shutdown, the never ending Windows updates. I have not used Windows on my dual-boot laptop for months for precisely that reason... I am waiting anxiously to see that patented as well.

Night of the Living Dead: Reanimated is a mass collaborative artistic re-envisioning of George A. Romero's 1968 cult classic, Night of the Living Dead.

International artists and animators were invited to select scenes from the film and reinvent them through their artwork.

The full and complete re-imagined work is currently available:

http://www.notldr.com/next/main.html

http://www.amazon.com/Night-Living-Dead-Duane-Jones/dp/B003GUGB8G

A similar artistic endeavor was performed with Star Wars, but the Star Wars Uncut website lists a message which states: "We have a fully edited version of the movie produced, but we are working through the legal issues in order to bring that to everyone as soon as possible."

Why is this? Simple - One film is in the public domain, and the other isn't.

Conor Friedersdorf over at Andrew Sullivan's much-trafficked blog points to "an interesting post about craft cocktails and the impulse to protect certain recipes as intellectual property" as well as the reaction to the concept from a third blogger.

Read all about it and get the discussing links here:

http://andrewsullivan.theatlantic.com/the_daily_dish/2010/09/keeping-government-out-of-cocktails.html