Writing in the Washington Post today, Monica Hesse relates that a number of commercial media have taken copyrighted material like amateur photos from social sites like Facebook and used them, for example, in their ads without seeking permission. Some are now being sued or being told to stop link here.

Hesse is able to show that the violations have been frequent and verge on the systematic. The companies doing it offer excuses that it was the fault of a low level employee or a rare and thus exceptional attempt to capture reality, but the frequency suggests it was policy. Hesse quotes Larry Lessig that this sort of behavior will stop and order prevail when the community becomes familiar with the law and the individual prosecutes violations. Hesse suggests instead "total anarchy".

I wonder whether use of "anarchy" here isn't right, given that individuals, particularly the young, feel pretty free about violating copyright, pleading either ignorance or assuming they are too small to go after link here. The law on fair use is often quite unclear, judging from the attempts of various groups to redefine it and the absence of court rulings or clear statute law link here. I feel like throwing up my hands and saying let's get rid of copyright but then I realize it isn't going to happen.

But then I remember that we did get rid of prohibition when violations became overwhelming. Is this comparable?

The New York Times has a short piece noting that the British violinist, Tasmin Little, has made available her next recording, The Naked Violin, free for downloading in order to make the music more popular link here. Little is quoted as saying, "Just the fact that people can listen to it on a computer means that hopefully, they won't feel a need to have an education or be from a certain sector of society." You can download it from tasminlittle.net.

Two more authors have started the free downloading of their work according to Mike Masnick who takes the view that "obscurity is a bigger threat to being read than piracy" link here. Good point. One variation on the theme is to include ads with the book's download, making it produce some immediate, even if modest, income link here.

This could be catching.

Jacqui Cheng writes that the Japanese government is proposing extensive invasions of privacy including e-mail and other media, TV, news, and websites link here. Included is the web address of Gyaku, a Japanese a non-profit media project, which provides great detail in English on what is planned link here.

An operative paragraph of concern to Americans according to Cheng reads: "Finally, the proposals meant to target copyright infringement through P2P are the most invasive of the three. Currently, Japanese copyright law bars anyone from uploading copyrighted material to public websites, but the Japanese Ministry of Education, Culture, Sports, Science, and Technology (Monbukagakusho) has agreed to take a look at the law to see if it can't be taken a step further. Proponents of a tougher law have suggested that all copyrighted media make use of a unique watermark, and that any media that doesn't bear this mark would be considered "illegal."

Given the American myth that copyright is such a boon to innovation and the success of IP owners in spreading the faith and mirror images of our law, we face growing encroachment on freedom and on technological progress. Reversing the restrictions becomes more difficult as more and more countries sign on. Our trade diplomats should be resisting this trend, not aiding and abetting it.

Today's Wall Street Journal has an interesting article about an upcoming case on patent licenses (p. B3A). Unfortunately, they seem to have omitted this page from the online edition, as various p. Bs are listed, but not B3A. The search engine failed to retrieve it, so apologies for not providing a link.

The suit is between Quanta Computer Inc. (allied with other Taiwanese computer manufacturers) and a South Korean firm LG Electronics Inc. LG licensed some patents to Intel in 2000, requiring that it tell its customers not to combine Intel chips with non-Intel components, which it did. Some of Intel's customers ignored the restriction, however, so LG sued them for infringement.

LG lost in district court (hooray!), which said that, since LG had granted Intel an unrestricted license to sell its technology, its patents were therefore "exhausted," and apparently (I haven't read the decision) had no further claims on Intel's customers. Unfortunately, the Federal Circuit Court of Appeals reversed the decision (boo!), claiming that the patents weren't exhausted because of the notification Intel had to send its customers.

As is usually the case in these matters, a slew of amicus briefs have been filed, and interested parties are lining up on both sides. (But who speaks for liberty and free markets, the unspoken third corner in this trianglar tussle? Well, this blog for one.)

On one side are the major patent monopolists and patent licensors Qualcomm Inc. and Wi-LAN Inc., which argue that an expansive interpretation of exhaustion could thwart their patent "rights" and restrict their ability to profit from their patents. On the other side are what I'll call minor patent monopolists, Hewlett-Packard Co., Dell Inc. and Cisco Systems Inc.--which are representing the interests of patent licensees in this case. They argue that a narrow interpretation of exhaustion could result in conditional license agreements that enable patentees to obtain royalties up and down the value chain--upstream and downstream from a patentee's customer(s). (That cheer you hear in the background is from the IP lawyers' bar. "You won the case? We win! You lost the case? We win!")

Jim Skippen, the CEO of Wi-LAN, a Canadian wireless patent troll, er licensor, says a broad view of the matter might induce patentees to foist high royalty demands on downstream licensees to compensate for not being able to license upstream firms, such as semiconductor and component manufacturers. Since upstream firms generally indemnify downstream firms against infringement liability, this could lead to conflict between the two groups.

Mr. Skippen is quoted saying: "What will happen is you won't be able to license down the chain so you'll go after the highest-value guy, and guess what, the component guys have all given indemnities."

But Mr. Skippen, what is the ultimate cause of the conflict, or to put it another way, who exactly are you trying to kid, kiddo? Who has the dirty hands here? Forget where the customers' yachts are, where are the customers' rights?

The article notes that "[t]he doctrine of patent exhaustion, also known as first-sale doctrine, is triggered when the first authorized, and unrestricted sale of a patented article takes place." Dell, HP, Cisco, and eBay Inc. jointly filed a brief arguing that it should be incumbent upon a patent holder to assess the economic value of its invention, and that its "first purchaser" should pay full royalty, and pass along the cost of a license to its customers.

A lawyer for IBM hopes the SCOTUS takes a "balanced" view of exhaustion. He says, "We don't think anyone [should] be able to sell, or license someone to sell, a product and then go out and tell the [licensee's] innocent customers who buy that product, "Gee, we got some more news for you, you need a patent license in order to do anything with that product."

The case will be heard Jan. 16.

Here is an interesting take on patent exhaustion with some basic history: The Patent Prospector.

Here is the Intellectual Property Law Blog on the case.

Here is the Wikipedia article on First Sale Doctrine.

Here is an article on pill splitting from Howrey LLP.

This stuff is giving me a headache already. Does anyone have an aspirin? Just don't split it--I don't want you to get sued by some IP legal hotshot for violating a patent, even though it's your property and your idea.

The series continues at the Wateringhole

Adam Liptak has an interesting Sidebar in today's NYT about the Attorney General of Oregon defending the University of Oregon's decision to fight an RIAA subpoena seeking the identities of students the RIAA suspects of sharing music. The University and Attorney General are saying that privacy protection for the University's students is more important than complying with the RIAA subpoena, particularly since this RIAA legal operation more resembles an extortionary shakedown in which violators of copyright are given the opportunity to settle (typically to the tune of three or four thousand dollars) rather than using actual judicial proceedings to determine the approriate compensations.

Writing in the Washington Post today, Marc Fisher observes, "Despite more than 20,000 lawsuits filed against music fans in the years since they started finding free tunes online rather than buying CDs from record companies, the recording industry has utterly failed to halt the decline of the record album or the rise of digital music sharing link here.

"Still, hardly a month goes by without a news release from the industry's lobby, the Recording Industry Association of America, touting a new wave of letters to college students and others demanding a settlement payment and threatening a legal battle."

He then goes to describe the case of "Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer." Howell is fighting the case.

The problem here is that plenty of legal precedent exists that what Howell did is within his fair use rights. Once again, the RIAA is trying to extend the reach of copyright, at which it has so far been very successful. But Fisher concludes by noting that the "RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed."

Know hope!

For some years now, we have seen the term of copyright protection extended in country after country. The latest to join this move has been South Korea, where the "copyright period for royalty payments will be extended to 70 years from the current 50 years after the original copyright holder dies, as a step to meet the requirements of the 'provisional' free trade agreement (FTA) between South Korea and the United States link here."

It is probably the case that few in South Korea opposed the copyright change, though publishers have complained about increased cost and complexity. To buy them off, the government has promised 160 billion won ($173 million) in aid. There remains considerable opposition to the overall FTA as a surrender of Korean sovereignty and a loss of competitiveness against the economic giant of the West. The strongest opposition is generated by farm groups who do not want to give up protection for their high priced farm sector.

Passage of the FTA remains problematic in both the US Congress and the Korean National Assembly. It will be interesting to see how the just elected conservative Grand National Party presidential candidate, Lee Myung Bak, handles the matter; he is generally thought to be pro-business and was elected on a pledge to get the economy growing faster. If the FTA is not approved, it is unclear whether the copyright extension will remain.