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Against Monopoly

defending the right to innovate

IP Outrages

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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ACTA Treaty Draft Text Released

And, in the words of Groundhog Day's Ned Ryerson, "It's a doosy".

As noted previously (see Stop the ACTA (Anti-Counterfeiting Trade Agreement)), this treaty was being negotiated in secret and is an attempt to extend the reach of the west's horrible and draconian IP (patent and copyright) regimes to other countries. As I noted, the

ACTA is also similar to another arcane law, the Digital Millennium Copyright Act (DMCA), which, under the guise of protecting "property rights," snuck in provisions that criminalize even the mere possession of technology that can be used to circumvent digital protection systems (see, e.g., my post TI Uses Copyright Law to Attack TI Calculator Enthusiasts). Likewise, under the guise or protecting property rights in inventions and artistic works (patent and copyright), it "seeks to provide legal authority for the surveillance of Internet file transfers and searches of personal property". As one group notes, "ACTA goes way, way beyond the TRIPS (the copyright/patent/trademark stuff in the World Trade Organization agreement), creating an entirely new realm of liability for people who provide services on the net". More invasion of personal liberty and property rights in the name of false, artificial property rights.

The draft text has now been released, under pressure from the European Parliament (see Declan McCullagh's post, ACTA treaty aims to deputize ISPs on copyrights; see aslo Michael Geist's analysis of the draft text). As I suspected, the text (available here) reveals, as McCullagh notes, that ACTA "seek[s] to export controversial chunks of U.S. copyright law to the rest of the world," such as the DMCA's "'anti-circumvention' section, which makes it illegal to bypass copy protection even to back up a Blu-Ray disc" (see, e.g., my post TI Uses Copyright Law to Attack TI Calculator Enthusiasts). This is a horrible US law that was snuck in the DMCA that may now become part of other countries' laws. It prohibits not only copyright infringement but also makes it illegal to sell devices that could be used to circumvent encryption of DRM'd information.

Now, the DMCA also contained a "safe harbor" for ISPs that probably would not pass now (since it gave ISPs an exemption for liability that turned out to be broader than initially realized when the DMCA was enacted in the 1990s). I was concerned that ACTA would contain the anti-circumvention provisions but not the ISP safe-harbor rules--but some version of this does, at least, seem to be contemplated in the ACTA text (see pp. 20-21).

In any case, this horrible treaty needs to be stopped.

The Patent, Copyright, Trademark, and Trade Secret Horror Files

As noted here, "Ayn Rand's newsletters used to end with a "Horror File" of monstrous but true quotations."

Along those lines, it's time to collect some choice trademark horror stories in one place. The main post will be here, on the Mises Blog, but I'll cross-post the initial post here too. But look there for updates (or to add suggestions in the comments). (Update: I have modified this post to also include outrageous examples from patent, copyright, and trade secret law. See below.)

Trademark

As noted in Trademark versus Copyright and Patent, or: Is All IP Evil?, it's not only patent and copyright that are unlibertarian and unjust. Modern trademark law is as well. I deal with tradmark rights on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, extensions of trademark law--rights against "trademark dilution" and cybersquatting, etc.--are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution.

But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of "consumer confusion" is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark "owners" to sue "infringers" (except perhaps as proxy for customers, when consent can be presumed or proved--as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer's right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that "knockoffs" are usually not a violation of anyone's rights: the buyer of a $10 "Rolex" is almost never defrauded--he knows what he's getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.

The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.

In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):

Patent

Taken (in part) from my article Radical Patent Reform Is Not on the Way, Appendix: Examples of Outrageous Patents and Judgments:

Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice): The Supreme Court, in the 1882 case Atlantic Works v. Brady, 107 US 192, itself lists examples of patents issued to "gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge … the simplest of devices." These included
  • a particular doorknob made of clay rather than metal or wood, where differently shaped doorknobs had previously been made of clay;
  • making collars of parchment paper where linen paper and linen had previously been used;
  • a method for preserving fish by freezing them in a container that operates in the same manner as an ice-cream freezer.
  • rubber caps put on wood pencils to serve as erasers;
  • inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser;
  • a stamp for impressing initials in the side of a plug of tobacco;
  • a hose reel of large diameter so that water may flow through the hose while it is wound on the reel;
  • putting rollers on a machine to make it movable;
  • using flat cord instead of round cord for the loop at the end of suspenders;
  • placing rubber hand grips on bicycle handlebars;
  • an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.
Below are a few notable or recent examples of large, significant, troubling, or apparently outrageous injunctions, damages awards, and the like:

Copyright

Some of these are also listed in Reducing the Cost of IP Law: See also:

Trade Secret

Even trade secret law, the least objectionable of the four main types of IP, has been corrupted by the state.

[Mises; SK]


   

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