A claim arguing both copyright infringement and moral rights infringement looked for $27 million in damages. (Plus, amongst other things, the goods and services tax on the monetary awards.) By the end, the Honourable Mr. Justice Russell of the Federal Court of Canada determined that the defendants' copyright misdemeanor was confined to posting the plaintiff's work on their website, without his consent. Justice Russell did not conceal his opinion of the plaintiff's conduct; "The evidence adduced concerning infringement of copyright suggests that the Plaintiff's claims are disproportionate and opportunistic."

It reads like a work of fiction; a long-time business association that went sour, third parties caught in the crossfire, and a proposed corrective that involved transacting funds in a Caribbean country of the plaintiff's choice. The effort to secure significant statutory damages earned some choice words from Justice Russell, "There is no evidence of any market for the Report and the conduct of the Defendants during the proceedings has been consistent with parties simply trying to resist the Plaintiff's inflated demands for $27,000,000.00."

The $500 awarded to the plaintiff is the minimum permitted for statutory damages by Canadian law. The claims for punitive and aggravated damages were unsuccessful.

Indeed. Hopefully, this will get even more people to start to contemplate the bigger picture here:

http://claytonecramer.blogspot.com/2010/07/outrageous-lawsuit.html

[H/T: Instapundit]

Details here:

http://www.wired.com/threatlevel/2010/07/copyrightfiltering-scribd/

The fact that the lawsuit was dropped does not diminish the illustration of how insane the copyright lawsuit industry has become. Its own logic begins to fold in on itself.

The New York Times has a good short article on the growth of patent trolls (which it terms as non practicing entities or NPEs) link here. The story hangs on the suit against EBay for $3.8 billion by XPRT Ventures which goes unmentioned thereafter.

It then describes the basic patent troll model: "The basic idea is that an investment firm buys a pre-existing patent for, say, $2 million. It then sues perhaps a dozen companies that use technology potentially overlapping the patent. Each firm that fights may end up paying $500,000 or more to defend itself and could also face penalties. The alternative is to settle for, say, $1 million or so. If just three firms pay up to avoid a battle, the patent owner makes big money."

The EBay example is not particularly apt here since it is for so much money that EBay is likely to fight it. But the story provides the excuse for the article which goes on to cite the rise in the number of such suits, 500 last year or six times the number in 2001.

The article then switches to a "new" business response to the patent troll threat, the counter-troll that acquires patents to sue or cross license other firms by which its member companies might be sued for infringement. Thus for a generous annual fee, it seems to offer some insurance against loss.

Its exemplar, roughly two year old RPX, has an extensive website link here, a puff piece, and Google adds little more. However, the Times piece reminded me of ten-year-old Intellectual Ventures about which we wrote link here and which now has a Wiki write-up link here . I checked quickly for officer names of the two but found no overlap. I do note, however, that IV has some big corporate subscribers including Microsoft, Verizon (also "insured" by IV), and Intel.

Thus the "counter-troll" model seems to have proved so attractive that it has spawned a rival. Here is another reminder of how patents enrich the big oligopoly companies and exploit the consumer while providing no benefit to the inventor in whose name patents are issued.

Reposted with permission from Creative Commons:

ASCAP's Attack on Creative Commons

The American Society of Composers, Authors and Publishers (ASCAP) has launched a campaign to raise money from its members to hire lobbyists to protect them against the dangers of "Copyleft." Groups such as Creative Commons, Public Knowledge, and the Electronic Frontier Foundation are "mobilizing," ASCAP describes in a letter to its members, "to promote 'Copyleft' in order to undermine our 'Copyright.'" "[O]ur opponents are influencing Congress against the interests of music creators," ASCAP warns. Indeed, as the letter ominously predicts, this is ASCAP's "biggest challenge ever." (Historians of BMI might be a bit surprised about that claim in particular.)

As a founding board member of two of those three organizations, and former board member of the third, I guess I should be proud that a 96 year old organization would be so terrified of our work. And I would be if there were anything in this fundraising pitch that was actually true.

But there is not. Creative Commons, Public Knowledge and EFF are not aiming to "undermine" copyright; they are not spreading the word that "music should be free"; and there is certainly not yet any rally within Congress in favor of any of the issues that these groups do push.

I know Creative Commons best, so let me address ASCAP's charges as they apply to it.

Creative Commons is a nonprofit that provides copyright licenses pro bono to artists and creators so that they can offer their creative work with the freedom they intend it to carry. (Think not "All Rights Reserved" but "Some Rights Reserved.") Using these licenses, a musician might allow his music to be used for noncommercial purposes (by kids making a video, for example, or for sharing among friends), so long as attribution to the artist is kept. Or an academic might permit her work to be shared for whatever purpose, again, so long as attribution is maintained. Or a collaborative project such as a wiki might guarantee that the collective work of the thousands who have built the wiki remains free for everyone forever. Hundreds of millions of digital objects from music to video to photographs to architectural designs to scientific journals to teachers lesson plans to books and to blogs have been licensed in this way, and by an extraordinarily diverse range of creators or rights holders including Nine Inch Nails, Beastie Boys, Youssou N'Dour, Curt Smith, David Byrne, Radiohead, Jonathan Coulton, Kristin Hersh, and Snoop Dogg, as well as Wikipedia and the White House.

These licenses are, obviously, copyright licenses. They depend upon a firm and reliable system of copyright for them to work. Thus CC could have no interest in "undermining" the very system the licenses depend upon copyright. Indeed, to the contrary, CC only aims to strengthen the objectives of copyright, by giving the creators a simpler way to exercise their rights.

These licenses are also (and also obviously) voluntary. CC has never argued that anyone should waive any of their rights. (I've been less tolerant towards academics, but I have never said that any artist is morally obligated to waive any right granted to her by copyright.)

And finally, these licenses reveal no objective to make "music free." Nine Inch Nails, for example, have earned record sales from songs licensed under Creative Commons licenses.

Instead, the only thing Creative Commons wants to make free is artists free to choose how best to license their creative work. This is one value we firmly believe in that copyright was meant for authors, and that authors should have the control over their copyright.

This isn't the first time that ASCAP has misrepresented the objectives of our organization. But could we make it the last? We have no objection to collective rights organizations: They too were an innovative and voluntary solution (in America at least) to a challenging copyright problem created by new technologies. And I at least am confident that collecting rights societies will be a part of the copyright landscape forever.

So here's my challenge, ASCAP President Paul Williams: Let's address our differences the way decent souls do. In a debate. I'm a big fan of yours, and If you'll grant me the permission, I'd even be willing to sing one of your songs (or not) if you'll accept my challenge of a debate. We could ask the New York Public Library to host the event. I am willing to do whatever I can to accommodate your schedule.

Let's meet and address these perceived differences with honesty and good faith. No doubt we have disagreements (for instance, I love rainy days, and Mondays rarely get me down). But on the issues that your organization and mine care about, there should be no difference worthy of an attack.

Meanwhile, you can read more about Creative Commons here, and support its response to the ASCAP campaign here.

Even the Wall Street Journal is stepping in -- even if it is the Weekend Journal.

Woodlief, Tony. 2010. "Curse of the Greedy Copyright Holders." Wall Street Journal (9 July). http://online.wsj.com/article/SB10001424052748704608104575220551906611796.html?mod=ITP_weekendjournal_6

"When I asked to use a single line by songwriter Joe Henry, for example, his record label's parent company demanded $150 for every 7,500 copies of my book. Assuming I sell enough books to earn back my modest advance, this amounts to roughly 1.5% of my earnings, all for quoting eight words from one of Mr. Henry's songs. I love Joe Henry, but the price was too high. I replaced him with Shakespeare, whose work (depending on which edition you use) is in the public domain. Mr. Henry's record label may differ, but it's not clear that his interests -- or theirs -- are being served here. Were they concerned that readers might have their thirst for Mr. Henry's music sated by that single lyric? Isn't it more likely that his lyric would have enticed customers who otherwise wouldn't have heard of him?"

As you know we welcome comments. However the comments sidebar is getting taking over by gratuitous exchanges of insults rather than intellectual commentary on whatever side or point. I've tried not to moderate the comments beyond removing obvious spam. Heated exchanges are one thing but constant exchanges of insults are something else. I think interested readers are starting to feel discouraged by the tone of some of the comments, and some have complained. Let me start by requesting especially Lonnie, "nobody" and "none of your beeswax" to dial it back. If provoked don't respond, please try to stick to the intellectual point. If necessary we (the editors) will start removing posts that are designed to offend rather than inform. If you think another commentator is out of line, please don't respond in the comments, just let one of us know so we can take appropriate action.

Thanks,

David

Talking Points Memo tells us that Nevada Senatorial candidate Sharon Angle, running against Senate Majority Leader Harry Reid, has sued him for violating copyright link here. He had posted her old website after she took it down and rewrote her old far-right positions used to win the primary, in favor of more moderate ones.

Reid did take down the copy, after stating that he had made his point about her retailored views.

This interesting abuse or misuse of copyright law again shows an old fox obeying the law but getting what he wanted, including great publicity in a campaign where it is not all that easy to get news coverage.

CMR International, a firm that tracks that performance of the pharmaceuticals sector, released a rather depressing report on research and development productivity last week. The report will set you back $10,000, but highlights have been made public:

- A total of 26 new molecular entities (NMEs) were launched onto the global market in 2009, an increase on 2008's 20-year low of 21. But the number of launches last year was still only a little more than half the peak level in 1997.

- The number of experimental drug projects terminated at the final Phase III stage of development had doubled in the period 2007-2009 compared with 2004-2006.

- Total global R&D expenditure dropped by 0.3 percent in 2009, after a 6.6 percent rise in 2008 and rapid growth seen in earlier years.

- Pharma is having a tough time selling its new drugs: New drugs launched within the last five years accounted for less than 7 percent of industry sales in 2009, down from 8 percent in 2008, highlighting the big problems that companies are having in trying to reinvigorate their portfolios.

Matt Mitchell draws our attention to

Stevens "concurring" opinion in Bilski, especially part VI. It is a pretty good summary of why patents are bad, generally. He confines his argument to business method patents, but they are easily extended in most cases.

The relevant part starts on page 41, after he makes a fairly unspecific defense of patents generally. In many sentences in the rest of VI you can just delete "business" or "business method" and reach the same conclusion as Stevens.

For instance, on the disclosure case for business method patents, I have replaced the specific use of terms realating to business methods with the general word "innovations." It is remarkably still a fairly lucid case, using only a find/replace on Stevens' argument:

"Nor, in many cases, would patents on (innovations) promote progress by encouraging 'public disclosure.' Many (innovations) are practiced in public, and therefore a patent does not necessarily encourage the dissemination of anything not already known. And for the (innovations) practiced in private, the benefits of disclosure may be small: Many such (innovations) are distributive, not productive - that is, they do not generate any efficiency but only provide a means for competitors to one-up each other in a battle for pieces of the pie. And as the Court has explained, 'it is hard to see how the public would be benefited by disclosure' of certain (innovations), since the nondisclosure of these (innovations) 'encourages businesses to initiate new and individualized (innovations),' which 'in turn, leads to a greater variety of (innovations).'"

There are lots of other examples in the "concurring" opinion.

Decision is kind of bad news, though. Thought they would end a lot of goofy patents.