It has never been clear to me how the growing criticism of copyright and patent law is faring. Not well, I would judge by the lack of coverage in widely read journals. At the same time, we are seeing more like this enteraining op-ed piece, titled "Fair Use, Art, Swiss Cheese and Me" in such widely read journals as the New York Times.

In this case, the author, a lawyer, meanders from a story of a photograph of himself which was transformed by another artist-photographer by putting a slice of cheese over his face. He then contrasts it with a case where a judge has repeatedly found such use violates the original photographer's copyright. He concludes that no harm was done to him or the photographer since the market for the original photo and the "altered" one was distinct and different; its creator lost nothing as the market for the original still existed, unchanged.

To riff on this story, the moral is that if no harm is done another party, no right has been violated. But the point of copyright and patents goes farther: it is to foster innovation. In this case, it appears that the judge construed copyright to be nothing more than the grant of the right to limit innovation.

AEI held a session on patents and patent reform building off Launching the Innovation Renaissance. Alex Tabarrok was one of the speakers, taking for his title "Most Innovations in Most Fields Are Not Patented." You can listen to a YouTube of part of his talk and see some related YouTubes at the end. His title says it all link here and link here. The entire conference is to be posted here

Via Ed Lopez (somewhat tardily, sorry, Ed): Botas Picudas Mexicanas y Tribal

Brian Kahin Senior Fellow of the Computer and Communications Industry Association (members of the lobbying organization include Microsoft and Google, but apparently not Apple) gets it. Best quote? Noting that governments now own patents they themselves issue:

Markets for government granted rights to stop commerce -- in which governments themselves are major players, using government-granted rights to stop others from using government-granted rights to stop commerce...

from kottke.org

"I invented nothing new. I simply assembled the discoveries of other men behind whom were centuries of work. Had I worked fifty or ten or even five years before, I would have failed. So it is with every new thing. Progress happens when all the factors that make for it are ready and then it is inevitable. To teach that a comparatively few men are responsible for the greatest forward steps of mankind is the worst sort of nonsense." -- Henry Ford

The front page of today's NYTimes carries Daniel WAKIN's story on making sheet music available for download on the internet link here(log-in required). It is quite a saga. The site is the International Music Score Library Project or imslp.org. It was started by Edward W. Guo, a music student, computer geek, and now a law student. It makes tens of thousands of scores free to download.

It started with scores that were out of copyright but has expanded to those made available under Creative Commons license. Guo was sued in 2007 by a commercial publisher of scores in Europe and had to close for a time because he didn't have the resources to fight. His solution is ingenious. He set the website up in Canada where copyright is less onerous in a separate corporation to remove personal responsibility and disclaims local legal responsibility. He warns downloaders that they are responsible for complying with their local variants on copyright. The organization is now run largely by volunteers. It arranges low cost printing services in addition to free downloads.

The economics of this is that the old line music publishers are about to become largely technologically unemployed, as their business will be increasingly reduced to publishing current works or copyrightable corrected versions of those out of copyright. Wakins quotes both Guo's public service logic in promoting a much cheaper innovation and the defense of music publishers that their profits helped induce publishing new music. That excuse sounds pretty feeble.

The Facebook story has attracted a lot of attention (for example, link here at Wikipedia). The boy genius programmer and now billionaire, Mark Zuckerberg, remains in the news with the Winklevoss legal suit link here. They want to reopen the negotiated settlement they accepted some time ago for several millions, thinking that they might now get billions, given the rise in Facebook's stock price.

Their claim for any cut, much less a bigger one, seems questionable, given their argument that Zuckerberg stole their idea while he coded for their idea (actually a dating site rather than the social network that Facebook has become).

I wasn't aware that an idea was property, much less protected property, so I suppose that Zuckerberg capitulated rather than carry on fighting to avoid unnecessary unpleasantness. He must regret that decision now.

In any case, the real story with Facebook is how this kid created this major success story in websites. The idea for it is a tiny part of the total. The real genius was in creating the organization that has gone on to be so hugely popular -- finding the right people to staff it and the financing for a really expensive investment -- to become the major public spokesman for the company, to get the technology right, and to make most of the many difficult decisions along the way. Unless he had a guiding partner, he has to be considered brilliant.

This is a case in point, supporting the thesis of Techdirt's Mike Masnick that concept always plays second fiddle to execution. Someday, the story on how it was done will have to be written in a lot more detail than we have been given so far. It should be a great read.

It also seems to be a lesson in how intellectual property rights can get abused by the threat of legal proceedings that lead the party in the right giving up.

Gene Quinn, along with his site IPWatchdog.com, has been a stalwart defender of the current patent system. The honest impression that I have gotten in the past while reading his posts is that he has elevated the importance of the patent industry (and the economic benefits it has given to a discreet class) over actual innovation. Regular readers of this site might recall him being singled out by Stephan Kinsella [ http://www.againstmonopoly.org/index.php?perm=593056000000001821].

Imagine my surprise when I came across the following posts at Quinn's IpWatchdog site this past week:

http://ipwatchdog.com/2010/12/14/patent-trolls-innovation-vampires-suck-life-out-of-economy/id=13797/

http://ipwatchdog.com/2010/12/09/intellectual-ventures-becomes-patent-troll-public-enemy-1/id=13711/

http://ipwatchdog.com/2010/12/08/copyright-trolls-the-meaner-stepsister-of-patent-trolls/id=13695/ (This post is admittedly written by a guest to Quinn's site, but it is still nice to find him hosting such views).

I don't want to make too much of this. I (and I suspect other contributors to this site) still have profound disagreements with Quinn's perspective. But it nonetheless seems to mark something of a positive shift in thinking, or at least rhetorical emphasis. Even if it turns out to be slight, it is still a positive development which I welcome. A simple recognition of the harm that patent trolls cause shouldn't be difficult to admit to - even for those who are stalwart supporters of the remaining aspects of our current patent system. It is somewhat amusing to see his commentators accuse him of going over to the "dark side" and espousing "pure, unabashed anti-patent rhetoric", and then read Quinn having to defend even this reasonable and narrowly-tailored critique which he has authored.

Quinn himself admits: "I know that over the last several years I have not been one to want to jump up and down over the problems created by patent trolls..."

I hope that this will mark the opening of a more constructive dialogue. If these posts of his are any indication, then we actually share the same broad goal of maximizing innovation. Before now, I honestly wasn't sure he placed that goal as the prime directive.

So in the hopes of building further bridges of peace, love and understanding, here is a parting thought for now which I hope Quinn chews on further -

True "innovation" can't be thought of merely as the creation of a new invention, but rather, the placement of that new invention into the hands of wider society. There is no actual innovation until the practical benefits of an invention are widely disseminated for use by the general public (or as large a group as the nature of an invention practically allows for) which in turn allows them to build further on it.

I don't wish to start a philosophical conundrum akin to the question of "does a tree falling in a forest make a sound if nobody is there to hear it?" But from my perspective, a ground-breaking invention is not "innovation" if it is kept under wraps by a small secret society or elite oligarchy. The term "innovation" inherently connotes the fact that its benefits are shared by as much of the public as practically possible. The next step is debating what system would maximize that.

The gulf in views are still vast, but if we can agree on what "innovation" actually means and can also agree that maximizing it should be the primary goal IP regimes (as opposed to placing economic considerations for certain IP players as a primary end unto themselves), then we will be well on our way towards a more constructive dialogue.

From a representative of a large multinational to the inventor of graphene: "We are looking at graphene, and it might have a future in the long term. If after ten years we find it's really as good as it promises, we will put a hundred patent lawyers on it to write a hundred patents a day, and you will spend the rest of your life, and the gross domestic product of your little island, suing us."