via Melody Walker: a nice article in Business Week about law professor John Duffy. He seems to be of two minds about patents: he wants everything to be patentable but better standards of non-obviousness. I'd agree with the latter.

I wrote here on 6/14 "And once again we come up with the question posed by copyright, giving publishers and owners a claim on an income stream that would not otherwise have existed. There is no clear public benefit from paying them. The owners will provide no service to receive this bonanza. Nor is the public interest protected to achieve the lowest possible price, consistent with providing the service, the marginal cost to the provider." I return to Google today, focusing once more on the proposed settlement (as no doubt I will again as more of the details emerge on the proposed settlement the feds now have under review). This essay was prompted by David Carr, writing in the NYTimes link here.

The dilemma has several aspects. One is the gain from making so much written human effort readily available on the internet, both conveniently and hopefully, at modest cost. Against this is the cost that consumers will have to pay Google for access, the amount of which is still unclear. And the fact that Google will end up with a monopoly at selling access to these books, with the minuscule exception provided by borrowing the copy from a library which provided Google the chance to scan it in the first place.

That monopoly will exist by virtue of the government agreed terms now proposed by Google. No other companies willing to scan and offer public access will be in a position to compete unless they can undercut Google's resale prices and Google has the advantage of first-to-market. Libraries for the most part seem to have got little for providing access--those that provided the books for scanning and their members get free access to the Google files. In the end these institutions were funded by the public through taxes (our money) in the first place, so this seems like a clever move to capture the return from a public investment.

But the deal is still subject to government approval. Will the government try to renegotiate the deal? Hopefully yes. The cost, of course, is the delay is making access publicly available. To me, that is a small price to pay.

As an opponent of copyright, however, I would like to see the whole deal and copyright itself abolished. That is unlikely. How about a deal in which unregistered copyrights beyond five or ten years old, automatically expire. And an expiration date on all other copyrights of ten or twenty years. Not very realistic politically, but unless we find some basis for compromise, I suspect we will get no real welfare-increasing improvements.

More later.

By Alistair Kelman...

Once upon a time, there was a little red hen who scratched about the barnyard until she uncovered some willow bark. She chewed on this and found that it could reduce her arthritic pain. "Ah"she said "There is a compound in this willow bark which could be helpful in eliminating pain. Who will help me extract the compound and turn it into pain killing tablets?"

for the rest here and follow the link.

One of the things I get depressed by is the growing spread of IP protections around the world. Here is another one involving South Korea and Russia. "South Korea and Russia have agreed to launch a fast-track patent review process in November to speed up the process of securing intellectual property rights protection for companies and individuals, officials here said Tuesday." link here The story reports a similar fast track procedure for reviewing and granting patents that Korea has with Japan, with the US, Denmark, Britain, and prospectively with Canada and Germany, Ukraine, Belarus, Azerbaijan and Kazakhstan.

Fast-tracking sounds good, like greater efficiency in government, but the downside is that there is no fast track for reversing patents once granted. It provides patent holders with a long stream of monopoly profits and fees from licenses. Never underestimate the power of a big patent troll up against small entrepreneurs and inventors.

A report by Joe Mullin on the sad plight of Fotki and other photo-sharing sights being targeted by patent-wielder FotoMedia. When will IP supporters realize asserting patents is, in the words of the Fotki's Igor Shoifot, "evil."

[Cross-posted at StephanKinsella.com]

Dan Cohen had a frustrating time with his Kindle and iPhone relating to DRM. He tells about it here and here.

The "bottom line":

You are able to redownload your books an unlimited number of times to any specific device.

Any one time the books can be on a finite number of devices. In most cases that means you can have the same book on six different devices.

Unfortunately the publishers decide how many licenses, that is devices, a book can be on at any one time. While most of the time that will be five or six different devices there will be times when it's only one device.

At the present time there is no way to know how many devices can be licensed prior to buying the book. [Emphasis added.]

I guess we shouldn't be surprised.

Paul Krugman has an interesting post on his blog this morning about the monopoly positions that large health insurance companies like Blue Cross/Blue Shield enjoy in states with small populations. He hypothesizes that the reason Senators from those states tend to oppose the public option in the health care reform legislation is a direct response to the rent-seeking activities of the incumbent monopoly providers in these states.

Jim Lindgren has an interesting post over at Volokh.com concerning the legal battle over a book that may or may not be characterized by some as an unauthorized sequel to "Catcher in the Rye".

Be sure to read it here.

This case brings up a number of issues:

First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.

For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.

I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.

Second, this case also illustrates just how slippery (and I would argue, unsustainable) current fair use concepts are that try to differentiate between "criticism", "parody" and academic explorations of previous literary works versus competing concepts such as "satire" and unauthorized "derivative works" that may contain some vestiges of the previously mentioned fair use categories.

How will "Coming Through The Rye" be classified if it functions as both a "derivative work" of "Catcher in the Rye" as well as literary criticism and history concerning the creation of the same?

Third, this case seems to be another instance of where the judiciary throws out their usual rules regarding prior restraints against free speech when it comes to mere (unproven) allegations of IP infringement. Courts will not allow prior restraints in libel cases. They didn't even allow it in the famed Pentagon Papers case which involved allegations of breaches of national security. But when it comes to protecting IP whenever somebody shouts "copyright" - judges too often seem to ignore free speech concerns.

Eugene Volokh wrote a great law paper on this issue. I'd advise checking it out here:

http://www.law.ucla.edu/volokh/copyinj.htm

I remember once being lucky enough to come across a copy of "The Wind Done Gone" during a time when a federal judge had enjoined its publication through a temporary restraining order - essentially declaring it unlawful to own and distribute due to copyright complaints from the Margaret Mitchell estate. I purchased it, and secretly horded it away as though I was living through some twisted version of "Fahrenheit 451". I thought it might remain on the list of "banned books" in the U.S. As it turned out however, the copyright case over it was settled, and the book was eventually "allowed" to published.

Perhaps the proper solution is the same one utilized in "Fahrenheit 451". When a rebellious populous was faced with a nation of "firemen" whose job it was to burn all books, each person was given the task of committing a book to memory in order to orally recite it later to others, thus circumventing the state by placing the books in the one area it could not reach - the human mind.

On second thought, that won't work. Current copyright laws prevent the unauthorized "performance" of copyrighted works - including recitals.

Beware the current crop of "firemen" looking to set the nation's Rye fields ablaze....

This is partially a bleg: does anyone know what the Google book settlement means? It is asserted that Google gets preferential treatment. So my questions:

1. Could I file a class action lawsuit against Yahoo claiming to represent copyright holders and settle with them for a nominal sum - promising them all existing copyrights in exchange for 0.0001% of their revenues? It seems as though it would be difficult for holders of orphan copyrights to opt out of the settlement?

2. Can the Author's Guild and the team of lawyers that ripped off Google on behalf of a bunch of copyright holders who will never see a penny of the settlement money legally offer a less generous arrangement to Yahoo?

3. Why on earth do we allow class action lawsuits anyway, given that the only beneficiaries are the lawyers that file them?

Popular music and DJ artist Moby has called for the disbanding of the RIAA in light of its legal victory over file sharer Jammie Thomas-Rasset - subjecting her to an outrageous (and possibly unconstitutional?) fine of $80,000 per song.

Read Moby's thoughts here.

If you are one of the few who are still unfamiliar with Moby's work, I'd encourage you to check it out. He does some sublime stuff - especially his tracks that showcase his ability to remix older (presumably public domain?) works into new dance beats.