Intellectual Property Reform
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the respective Writings and Discoveries."
U.S. Constitution, Article I, Section 8
Intellectual property. It’s a topic that affects the economy of our nation and the world as a whole, responsible for billions in unnecessary costs, reduces competition, stifles innovation, and brings us a more painfully costful Obamacare than we might like. I hold it as one of the aspects of law most desperately in need of reform in this country. Especially in the realms of healthcare, education, and technology. If there is one portion of my campaign that I wish to see implemented over all others, it would be IP reform, for IP reform will bring about many other changes to our national economy and even our national mentality.
Copyrights, patents, and trademarks play an important role in our society. Copyright keeps me from copying a Stephen King novel verbatim and selling it as my own; patents ensure that a pharmaceutical company like Pfizer can create new medicines without needing to worry that a competitor will just ripoff their discovery, stealing market share and profits without the cost of doing the research; trademarks allow Apple to stop other companies from creating a really bad smartphone, calling it an iPhone, and selling it under the Apple name for profit by proxy. All of these at face value are legitimate uses of IP law. These safeguards grant innovators protections under the law through the guise of “promoting the progress of science and useful arts.”
Unfortunately, America, the system has become perverted, polluted, and abused by those fearing competition, those incapable of innovating, and those who want to make a lot of money very quickly. I will tackle all three of these issues, but as I do so, realize they are all related to a degree and, again, please keep in mind the concepts I’ve laid out about our nation’s economic makeup.
Because of the sheer volume of content covering IP reform, this page is divided into numerous sections. The initial sections cover examples of industries that have and/or do misuse copyright and patent law to stifle innovation, eliminate competition, and generate profit at the expense of regular consumers. The section that follows then discusses current copyright myths. And the last section covers potential solutions to this problem that plagues most every aspect of our life without our conscious awareness.
The Entertainment Industry (music / video)
Any discussion of IP law- especially copyright- in relation to the entertainment industry needs to mention the Recording Industry Association of America and the Motion Picture Association of America. The RIAA and MPAA are the behemoths of the sector, the goliath middlemen standing between consumers and the content creators. They served as gatekeepers for what music got produced, which artists were chosen, what films came out, etc. They are fiercely overprotective of their content, their members and, most importantly, their profits. Prior to the internet, they felt every advancement in technology would be the death of their respective industry. For the RIAA, it was the record player that would kill music, then radio, then cassette players/tapes, then CD's once the first CD burners came to market, and finally the mp3. For the MPAA, it was Betamax, then VCRs, then DVD burners and DVR services all spelled death to the TV and movie industry. The thinking was that if people can obtain content, play content, or share content without having to pay for it, then no one would buy that content and, thus, all the musicians and actors and producers would not be able to make a living.
What the entertainment industry failed to do is embrace free market capitalism. With emergent technology, consumer demands changed. Record players allowed families to listen to music on their own time, outside of live performances; radio did the same while offering more variety in programming; cassettes then gave people a small form factor to save and transport their desired music wherever they went; CD's took up a lot less space than tapes and had a much better sound quality; finally with the mp3, a single device the size of a tape could hold thousands of songs, giving consumers access to possibly their entire music library with ease. The same thing occurred with the transition from Betamax to VHS to DVD and DVR. Consumer demand was for content, then portability, then quality. Those demands still exist. From a capitalism perspective, supply and demand dictates that where there's demand, there should be supply as customers are ready for the content.
Enter the age of the internet, where digital format, ever increasing storage space, and (theoretically) fast internet connections mean supply levels on created content approach near infinity. Demand is also at very high levels. When the internet was starting to bloom back in the early 2000's during the age of Napster, the smart business decision would have been to figure out a way to give would-be customers what they wanted: all music, all movies, and all TV for low price. Instead, the entertainment industry fought tooth and nail- and still does- to keep people from "stealing" content, ignoring the fact that you can't "steal" digital material because "theft" in legal terms means the physical transportation of something from one place to another. Consumers want the content and, as recent history has shown with iTunes, Pandora, Spotify, Netflix, Hulu, Amazon Prime Video, and more, consumers are more than happy to pay for it. But the industry still does not want to fill the demand.
The end result is consumers finding ways to partake in content that is made available to them from less legitimate sources. Billions in revenue lost to the RIAA/MPAA because they felt that control over their content was more important than their customers. Netflix currently has a market cap of more than what the entire movie industry generated in revenue in 2014. The demand is there. The supply is plentiful. And the organizations controlling content don't want to create customers; they want to make money.
When neither organization controlled access to their content on the internet, they turned to the federal government for more regulation. Not regulation on their industry, but regulation against consumers- everyday Americans like you and me. The 1972 Copyright Act was amended by a Republican Congress and President Bill Clinton, a Democrat, with two pieces of legislation. One was the No Electronic Theft Act (NET Act) which allowed from criminal prosecution of copyright infringement even with there was no monetary gain or commercial benefit. The second was the Digital Millenium Copyright Act (DMCA), a much hated law by technologists everywhere. The DMCA criminalizes production and/or dissemination of anything that would circumvent measures controlling access to copyrighted works. In other words, it is illegal to rip your movies from DVD/blu-ray to your computer, phone, or tablet. It also increased penalties for copyright infringement on the internet, with statutory damages now set to the range of $750 to $150,000 per infringement. In the case of digital content, the entertainment industry views a single view/download as an infringement, so technically civil suits for non-criminal infringement could generate verdicts in the trillions of dollar range. In Capitol Records v. Jamie Thomas-Rasset in 2007, precedent was set so infringement need not even occur; the very notion that something is "made available" can now constitute copyright infringement.
Clearly no one writing these laws and ruling on these cases understands technology.
With the legal system on their side, the entertainment industry took the litigation path. They sued and threatened to sue anyone they could uncover for copyright infringement going so far as to sue grandmas for downloading "gangster rap" (which they didn't), and even dead people. Copyright + not understanding technology + ridiculous statutory damages = the new business model.
All of this wouldn't be a problem if they were sincerely concerned about the members of their organizations creating the content. But history says they are not. Back in 1999, the RIAA tried to make all of their musician's music "works for hire" the moment they signed a deal with one of the labels under the RIAA umbrella. A Congressional staffer added language in the dead of night (literally) without discussion amongst other members of the House Courts & Intellectual Property Subcommittee. Said staffer then got a job with the RIAA thanks to the revolving door problem. From what I understand, when artists found out about this clause, they were rightfully irate with the RIAA. The change was subsequently dropped, but the organization is looking out for their profits first and foremost, spinning every report on the state of the music industry to make it look grim, even as the industry as a whole sees increased profits, more musicians than ever, more variety in music, and a much much lower barrier to entry in the market.
The MPAA has a similar problem. They claim that downloaded content has cost the industry billions. Not only billions, but 750,000 lost jobs, a number of extreme incorrectness. The source of the incorrectness goes all the way back to 1986 when Commerce Secretary Malcolm Baldridge estimated the number of jobs lost to counterfeit goods at "anywhere from 130,000 to 750,000." Furthermore, the MPAA is taking credit for any industry they might engage in, thus the number of lost jobs includes the potential lost jobs at the flower shop down the street because they might buy flowers from there at some point. And to top it all off, the MPAA suffers from an accounting problem which prevents them from turning a profit, which in turn means they cannot pay out royalties like they should. Case in point - the actor that portrayed Darth Vader in the Star Wars movies has not seen any residuals for Return of the Jedi because the movie still hasn't turned a profit. Harry Potter and the Order of the Phoenix pulled in over $938 million in revenue, but a leaked Warner Brothers accounting statement shows the movie as suffering a $167 million loss. Hollywood accounting is done in the form of shell corporations and large fees to keeps most movies from turning a profit. This is not looking out for your content creators, it's looking out for your bottom line.
And abuse of copyright law is the means which they keep content in check, keep progress from happening, and keeps content rightfully out of the public domain.
The Healthcare Industry
Healthcare costs are going up significantly, whether you blame Obamacare or not. The premise of the Affordable Care Act is a good one: it supports the notion of our unalienable Right to life and the pursuit of happiness, especially. But healthcare expenses are still a problem, both to our federal budget and personal income. And I think IP reform can help bring some of those costs down.
When a pharmaceutical company gets a patent on a new drug, they are usually able to recoup research and marketing costs and make significant profit. This is because, in the laws of supply and demand, they can artificially control the supply side through the patent monopoly and lack of competition. The result is extensive markup of drug costs because, honestly, they can. One example is a drug, Makena, used to help prevent premature births amongst pregnant women. It had been used for years by pregnant women facing a high chance of premature birthing, but at a cost of about $10 per dose with around 15-20 doses needed, it cost about $200 for treatment.1
Then a company, KV Pharmaceuticals, came in and was granted a patent on Makena retroactively by the FDA. Afterwards, the price went from $10 per dose to about $1,500 per dose, meaning full treatment would cost anywhere from $25-30,000 on average on a drug that cost less than $200 to produce per treatment course.2 Competition in the market went away, innovation certainly did not occur, and KV Pharmaceuticals wanted tremendous profits because of it.
Drug maker Gilead came out with Solvadi, medication for hepatitis C, last year. The price? $1,000 per pill and roughly $84,000 for a total treatment.3 It's expensive, but there are other drugs that compete with it. Take Viekara Pak made by Abbvie and even HCV’s drug, Harvoni. You can get Viekara Pak for… about $83,319 for a full treatment.4 Or maybe Harvoni for… $94,500 for a 12 week regimen.5 Do these prices depress anyone else? I understand that research and development costs money, truly I do. But should there be a limit on what pharmaceutical companies charge for their drugs?
The capitalist mind says “no, absolutely not.” As a capitalist, you think that the price is determined by the free market. You charge what people will pay for it. If people will pay $90,000 for the drug, you charge $90,000. But we really don’t pay. Our health insurance does. And high cost drugs create high cost payouts for our insurances companies, which of course will pass on the premium increases to us, the consumers. One study found that senior citizens on Medicare Part D could see premiums go up 8% this year because of the price of Solvadi by itself.6 And it’s been projected that California’s Medicaid spending on Sovaldi and accompanying drugs could potentially outpace what the entire state spends in a year on education for every in Kindergarten through 12th grade.7
How is this possible? Especially when the drug is sold near cost in third world impoverished countries? Drug patents last 20 years, so that’s 20 years of market monopoly for treatments. Then we have the concept of “exclusivity” which the FDA has the ability to grant, offering up to another seven years of exclusive marketing rights. After these term lengths, generic drugs, far far cheaper versions of medication, can come to market. For example, Lipitor was a huge money maker for Pfizer to the tune of around $10 billion per year until its patent expired in 2011.8 They then went on to slash R&D spending and tasked its scientists to work on only the most profitable prospects for FDA and patent approval.9 Here again we see the problem of placing shareholder value as the pinnacle of corporate purpose.
To combat the decline in profits thanks to a loss of monopoly status, drug companies turn to “evergreening” which is when they take an existing drug and change it slightly in order to get a new patent, continued exclusivity, or both. The basic function of the medicine in question usually doesn't change, just a small feature. For example, it might be able to be absorbed by the blood a little easier than before. Is such a small change, nothing really innovative, worthy of additional protections? According to the drug companies and their representative law firms, yes. Any change is viewed as incremental improvement and, thus, worthy of another 20 years of monopoly status. Others, including foreign countries, feel that is not the case.10
These small, incremental changes should not be worth an entirely new patent. If you manage to cure cancer with a pill, fantastic. If you then make it so that pill gets absorbed through your stomach twice as fast, also fantastic, but it's still the same basic medicine curing cancer in the form of a pill. Granting additional patent monopolies for such minor changes would bloat our already bloated patent system.
Fixing patent issues with pharmaceuticals would go a long way to lowering the overall cost of healthcare and balancing budgets at all levels of government.
The Technology Sector
Software and technology deals with IP issues every single day. The very nature of a computer and the internet involves copying. For a computer, phone, tablet, or other connected device to load a webpage, play a video, stream music, or load photos, it first needs to copy the content from the source location(s) to its current location. Your browser may cache content, storing it locally for faster retrieval in the future. Every single modern web browser comes with a built in browser debug tool for developers that allows individuals to find URL's for the source material. Network capture programs used for network monitoring and security can capture packets with data. At the end of the day, if content exists in a digital format accessible on a computer, there is absolutely nothing you can do to prevent others from obtaining a copy of it.
This goes against copyright law. The DMCA forbids circumvention, yet it's really really really difficult to build and fix a website without a debugger. It's also a security risk to ban network monitoring software that can capture packets. Software cannot run without being copied. It might be installed onto a hard drive, but then it gets copied into RAM where the CPU can process it. Computers constantly move content into and out of RAM because that's faster than reading directly from a hard drive. There have been court cases where a company sued because someone created software that modified the behavior of a program running in RAM, a program the user bought and owned.11
In addition, thanks to the Ninth Circuit Court's decision in Vernor v. Autodesk in 2010, copyright has destroyed the first sale doctrine with software.12 Autodesk argued in the case that the software users bought and owned physical copies of was not real ownership, rather a license, like a perpetual rental. This meant the user could not resell the software, going against the first sale doctrine. It mattered not if the user paid for and owned a physical copy; if the agreement inside the package says the software is licensed and not owned, the user really does not own it and it's considered copyright infringement to resell the software. The Supreme Court was given an opportunity to hear an appeal and denied it, leaving such a bad precedent in place where copyright trumps not only first sale doctrine, but ownership as well.
Coding and software development also faces copyright and patent hurdles. Thanks to the US Patent and Trademark Office approval of many vague technology patents13, it has becomes mathematically impossible for a software developer to not infringe on a patent.14 Based on the number of patents granted, firm sizes in the industry, and other pieces of data, researchers estimated that 2,000,000 patent attorneys, working full time, would be necessary to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn't; there are only 40,000ish registered patent attorneys and agents in the United States.15 The threat of being sued if your company becomes successful is very real because of this.
Then there is the API issue. Google and Oracle are currently litigating over whether API's are copyrightable.16 In recent years, Lodsys, a company with a patent on in-app purchases and "certain types of interactive chat, user feedback forms, and survey features", began suing developers that used the API's provided by Apple in their apps for patent infringement. Apple licensed the patent from Lodsys for use in their API's which developers can use (and should use) free of charge to build applications. Lodsys decided that profit can be had from suing companies using the legitimate functionality given them by another company.17 It doesn't hurt that the average cost of litigation is over $1 million, making settlements of tens of thousands of dollars more plausible.18
Software patents need to be eliminated, ownership needs to be restored, and IP law cannot continue to stifle innovation in one of the most important, growing sectors of our economy.
The Agriculture Industry
Farming is big business and extremely important to our nation's economy. And, thanks to patents and copyright, potentially more expensive and burdening than ever before.
One company stands at the forefront of the IP war that has been waged against farmers in recent years: Monsanto. This isn't about whether their RoundUp and RoundUp Ready products are any good; rather this is a complaint over their IP aggression and the Supreme Court’s siding with the company in matters of copyright and patent law.
Consider Monsanto and DuPont Pioneer (a DuPont subsidiary). Monsanto has a patent on their RoundUp Ready seeds which it sells to farmers. DuPont created a product called Optimum GAT soybeans, something you may not have heard of because it’s never been released to the public. For all intents and purposes, the product was brought forth for research purposes. Monsanto sued and won a case of patent infringement, much thanks to current IP law disallowing use of patented items for educational and experimental purposes by anyone who may have any hint of commercial purpose. Coupled with the DMCA’s anti-circumvention clause, it’s not surprising this happened. What is surprising is that the verdict issued against DuPont was for $1 billion. That’s $1 billion for something never brought to market, something that incurs no loss to the patent owner. Monsanto argued that the use of their seeds in DuPont’s labs and Pioneer’s test fields gave these companies an “improper head start” in making genetically modified seeds. Judge Webber agreed with that.19
DuPont could have setup a lab in a foreign country and conducted this research for far, far less while escaping such a harsh verdict. Even here in the U.S., 35 U.S.C. section 271(e) offers a research exception for the type of activity DuPont engaged in, but with pharmaceuticals. That exception doesn’t apply to genetically modified food products. Which sucks. Now, that was 2012. In 2013, Monsanto and DuPont made up and struck a licensing deal for $1.75 billion. But the problems with Monsanto don’t end there.
They have some very strange rules concerning their RoundUp Ready seeds. For example, if you buy such official seeds as a farmer, you are expressly forbidden from re-using seeds yielded from RoundUp Ready crops. However, you are allowed to take those seeds yielded from the RoundUp Ready crops and sell them to, say, a grain elevator for use as commodity seeds without restriction on the sale.
Bowman v. Monsanto is a court case focusing on one Vernan Bowman who bought RoundUp Ready seeds. He planted those seeds without issue, so no breaking of the Monsanto user agreement there. However, he did buy commodity seeds from a grain elevator, seeds which included RoundUp Ready seeds amongst other seeds. During harvest of those commodity seeds, Bowman was able to determine which of those plants yielded these “second generation” RoundUp Ready seeds, saved those, and then replanted them. In other words, he bought some seeds from a grain elevator, planted them, found RoundUp Ready crops in the batch, saved seeds yielded by those crops, and then replanted said seeds. Which is where Monsanto comes in and claims patent infringement.
One would think something like patent exhaustion would take place after you plant the first batch of RoundUp Ready seeds. In LG v. Quanta from 2008, the Supreme Court firmly held that a patent holder cannot demand licenses from all levels of a supply chain.20 However, in the case of Bowman v. Monsanto, federal courts said that exhaustion does not apply because Bowman planted new seeds and were, thus, infringing. In other words, even if you legally purchased those seeds and harvested new seeds, seeds never created nor owned by Monsanto, you are liable for patent infringement.21
The Supreme Court in May of 2013 weighed in an upheld this ruling. Monsanto even had the federal government file briefs in their favor. Via the ruling, the Supreme Court claims that patent exhaustion doesn’t apply because the second generation seeds in question are “copies” of the official seeds sold by Monsanto. Instead, they said that exhaustion only applies to a particular item sold and not to reproductions.22 That may be, but it goes against the entire purpose of farming and nature, which is reuse of seeds from a crop. You plant a crop, get a result, replant for more result. Can you imagine how horrible farming would have been for humanity if crops did not yield seeds? The Supreme Court ignores this act of nature, even though they firmly believe that patents on genes are invalid because they occur in nature.23 This strange dichotomy is really confusing and it doesn’t look like the High Court will clarify anytime soon.
On top of the seed issue, we have copyright being used to destroy the very idea of ownership with farm equipment. John Deere, in a letter to the Copyright Office, essentially said that farmers do not own their tractors.24 The amount of code that is used to make modern tractors work makes it so that farmers receive an "implied license for the life of the vehicle to operate the vehicle."25 Basically, you bought it and have no right to it other than driving. Here the DMCA works its magic because farmers are not allowed to attempt self-repair or use repair diagnostic equipment on their own tractors because doing so would be circumvention and, thus, a violation of the Copyright Act.
The Fashion Industry
Between 2007 and 2010, there was talk of fashion copyright and bringing forth legislation to protect designers from knockoffs and copies. But miracle of miracles, this never came to pass. Sure, some fashion designers lobbied for copyright protection on their clothing, most likely because it would be an additional revenue stream via litigation and a monopolistic hold on a particular design. And seriously, how many truly different jean designs are there? What’s truly remarkable is that the fashion industry has actually succeeded without copyright protections for the last 70+ years.26 Designers have come to the realization that people may not be able to afford that expensive Armani suit and, thus, purchase a cheaper option, even if it is a knockoff.27
it’s precisely because of the lack of copyright on clothing that we have such a vast array of options, a multitude of designs of varying degrees of expense.28 Those designs then get to market much faster, thanks to competition. Without the monopoly of copyright, designers are forced to live creatively, dabble in the realm of possibility in search of the next big thing. And as for counterfeits, they create a virtual market segmentation- the original Rolex versus the knockoff you can buy on the corner in New York City for $20; a segmentation which increases the value of the original, uncopied products. Rolex, Prada, etc are all held in high esteem in part due to all the knockoffs that exist for those who cannot afford the originals.
Now, there is a problem with counterfeits using the company name. If someone counterfeits an Armani suit and uses the Armani name, that is a problem. But that’s a trademark law issue, one area of IP law that doesn’t have near the amount of problems that copyright and patent law does. Trademark exists for consumer protection, so they know they are purchasing an item that is what they think it is. So in that regard, trademark protection on fashion brands remains perfectly acceptable. And lack of copyright on fashion design keeps spurring innovation and competition in the multi-billion dollar industry.29
The Auto Industry
Again, thanks to the anti-circumvention parts rules the DMCA, automakers have had monopolies on the diagnostic codes and information in the onboard computers of your cars- a big deal considering how technologically advanced cars are getting these days. By keeping these codes under lock and key, they stifle competition amongst independent car repair shops lest those shops violate the law with circumventing technology. This has been happening for quite awhile, and will continue for the next several years. Copyright is meant to incentivize, not lock up, and that’s likely why the constituents of Massachusetts voted for the right to repair back in 2012 with over 80% of voters in favor of the referendum.30 With other states having similar type laws, the Alliance of Automobile Manufacturers and Association of Global Automakers finally agreed to use Massachusetts’s law as a standard model for all 50 states. Under this proposed change, automakers would make their diagnostic codes and repair data available in a common format by the time 2018 car models come out.31 This will give us car owners more choices for car repair and lower cost. Competition wins again thanks to the removal of copyright anti-circumvention burdens. Though, for the next few years, your car repair may still be quite expensive at the dealership. So please drive carefully.
But just like with the agriculture industry, the auto industry feels that ownership of a car does not mean ownership of all part of the car. In a letter of comment to the Copyright Office for a circumvention exception, General Motors petitioned to not allow exemptions for vehicle software diagnosis, repair, or modification.32 They claim that locking people out prevents folks from making their cars go faster or run afoul of emissions. Those things happen anyway and are already illegal; cops pull over speeders and the DMV checks emissions regularly. What they don't tell you is that some chips can be modified to get better gas mileage amongst other things. The lock out just ensures dealership monopoly practices and hinders competition. Even with the repair standard mentioned earlier, this is a problem.
I don't know if it's trademark infringement for referring to the Super Bowl here. I think my use of the term is normative- that is, identifying what I'm talking about, but the NFL (like most sport leagues) is insanely notorious and overzealous in their IP protection. Back in 2007 they sent cease and desist letters to a church hosting a Super Bowl party because it was called the "Fall Creek Baptist Church's Super Bowl Bash."33 And when it comes time for football, you will hear plenty of ads and promotions from businesses offering deals for the big game without actually calling it the Super Bowl precisely because of copyright and trademark law.
The NFL has also issues DMCA takedown notices on very short clips on YouTube, citing copyright infringement. They even had a video of their own copyright notice you hear during games taken down- you know, the whole “private use of audience, any use without explicit permission blahblahblah” bit. That video was a very clear piece of educational fair use as the uploader was a law professor using the clip to demonstrate to her students that copyright owners were claiming rights beyond copyright.34 The NFL is not alone in abusing DMCA takedown notices to remove content from YouTube and the internet. It’s a quick and easy way that requires no due process. Guilt before innocence. Fair use be damned.
How about the time Major League Baseball thought it had copyright over player names and stats? No, seriously, they thought that player stats- you know, the publicly available batting averages, hits, walks, WHIP, etc- were owned by them and in the early 2000’s tried to sue fantasy baseball companies who refused to get licenses for that data. Again, copyright used as a monopoly in an attempt to get money where money isn’t deserved. Thankfully, MLB lost every court case and the Supreme Court refused to hear their appeal, which is why it’s safe for me to talk about Victor Martinez’s .335 batting average from last season without needing to worry about being sued for copyright infringement, something that could have been possible 15 years ago.35 The NBA also faced this challenge, but that dispute was settled back in the late ‘90s.
The Myths and More Problems
Some of you may recall a paper the Republican Study Committee put out back in late 2012. It was written by a RSC staffer, Derek Khanna, under the names of Representative Jim Jordan and RSC Executive Director Paul Teller. You may recall this paper because it focuses on three myths of copyright law and then on how to start fixing this.36 It was a brilliant paper, very much needed at a time when IP law was really messing with our economy under our noses. To see such a brilliant paper come from the conservative GOP was surprising, but the contents were good enough that many technologists troubled by IP law- including myself- were seriously considering supporting the GOP in future endeavors. However, a day later, the RSC pulled the paper, disavowing it entirely. Paul Teller, the RSC Executive Director, sent out an email telling everyone the paper was published without adequate RSC review and lacked perspectives held by all RSC members in the conservative community.37 I don’t buy this reasoning for a minute. If it was true, then the RSC is incredibly disorganized and in need of a cleaning because such papers don’t just magically appear on the organization’s website. It most likely went through the same review process every other paper goes through before getting posted. And then when organizations who erroneously depend on our copyright laws to survive got wind of it, they lobbied hard for its removal. A couple weeks later, Mr. Khanna was fired. Was he a scapegoat? Who knows.
Here's a link to the paper if you are interested in reading it. No one in government wants to touch it, but I'm not one to back down or cower simply because the paper might irritate some lobbyists. Consider the three myths laid out:
MYTH #1 -- the purpose of copyright is to compensate the creator of the content.38
This myth is a misconception and false. As the passage at the top of this page says, the purpose of copyright as described in the Constitution is to promote the progress of science and useful arts via limited monopolies to authors and inventors. There is no compensation mentioned. A limited monopoly is so that the rights holder might have time to do something meaningful with their creation, to spur productivity and innovation. If they can make some money on it, good for them, but that is not the purpose at all. There is no language on compensation. In fact, given how much the GOP argues against entitlement, they should be very much against this idea of IP law having the purpose of compensating creators. So why aren’t they?
MYTH #2 -- copyright is free market capitalism at work.39
Considering what I've said and written concerning American capitalism, I hope those who have been paying attention can immediately see why I feel copyright is not free market capitalism at work. It violates all tenants of free market capitalism as it is a government granted monopoly. Free markets are about competition, supply, demand, and all other factors that make our world go round. Nowhere in free market capitalism does it say monopolies over content are important or even needed.
MYTH #3 -- the current copyright legal regime leads to the greatest innovation and productivity.40
Our Founding Fathers were aware of copyright issues. Very much so considering Britain was accusing the colonies regularly of copyright infringement on British literature- which the colonies did. In fact, the Founding Fathers were quite skeptical in their support of copyright and patents. Thomas Jefferson felt that the instant an idea was divulged it became public, but public in such a way as to not diminish the individual who came up with it in the first place.41 He likened it to the air in which we breathe and move being incapable of confinement or exclusive appropriation. James Madison was worried that granting IP monopolies might produce more evil than good.42 And Benjamin Franklin went so far as declining patents because he felt that since we enjoy the inventions of others we should be glad to have the opportunity to serve others with our own inventions.43 Our forefathers had the insight and wisdom to know that IP monopoly terms were dangerous, but also that they were needed to incentivize. Again, they needed to incentivize, not to compensate via perpetual rent-seeking. Thus, they decided on balanced terms which they felt achieved just that.
The original length of copyright monopoly under the Copyright Act of 1790 was 14 years, plus another 14 years if the creator was still alive. So 28 years maximum. Today, copyright goes life of the author plus 70 years, or 120 years after creation for corporate authors. In other words, the entire Harry Potter series won’t enter the public domain for another 120 years, assuming J.K. Rowling lives to be 100. Furthermore, important works of culture will be locked behind copyright protections for most all of our lifetimes. Case in point, Dr. Martin Luther King Jr.’s speeches. Fantastically important to our culture and our history, and it is currently illegal under the copyright act to disseminate any of those works. This is why the movie Selma had to change Dr. King’s speeches, because the King estate had copyright control over Dr. King’s words.44
Madison’s fear of the bad coming out of these government granted monopolies has come to fruition and now needs to be addressed.45 Current IP law has created a culture of corporate welfare, entitlement to those who create not for the promotion of science and useful arts, but for profit. What sucks is that we can’t even know how badly our IP law hurts innovation because, as the RSC paper states, we simply don’t know what isn’t able to be produced right now based on the current system. Those in favor of strong or stronger IP law would say that nothing is being hindered; just pay a licensing fee. Sure, unless you’re a young musician trying to remix several songs at $100,000 per song. That’s unobtainable. The entire DJ and club scene thrives on mixing and remixing. It’s an industry worth hundreds of millions of dollars, maybe billions, and it suffers because of copyright. Other industries suffer from this problem as well with organizations like Intellectual Ventures scooping up patents and licensing them out. It just points to the problem of IP as a business model- and a piss poor one at that. Sure, you can make money and screw over others and do all the things evil corporations do, but that is the antithesis of what our Founding Fathers wanted and what benefits us Americans as a whole.
The RSC paper mentions discouraging added-value industries, like commentaries and interactive media. As we get closer to widespread augmented reality and virtual reality via devices like the Occulus Rift and Microsoft HoloLens, we’ll encounter and entirely new set of copyright problems as those devices copy and supplement the viewed world with additional information. And don't forget about 3D printing. If I print a copy of a toy in plastic, is that a copyright violation (currently, seems to be)?
The RSC paper also targets copyright as censorship where people issue DMCA takedowns on unfavorable reviews or memos that they don’t wish the public to view. The attack on transparency is very real. Imagine if lobbyists claimed copyright on presentations they gave Congress to prevent we, the people, from seeing how skewed and incorrect their talking points were. It’s borderline criminal.
The RSC paper gives four potential solutions: statutory damages reform, expanded fair use, punish false copyright claims, and heavily limit the terms for copyright and create disincentives for renewal. I’m in favor of all of these and more.
The first change needed is statutory damages reform. That our Copyright Act coupled with modern technology gives the potential for trillions of dollars in damages- more than the entire United States GDP- for non-criminal infringement is preposterous. My smartphone should not make me liable for billions in damages. The courts have found our current amount of “up to $150,000 per infringement” to be excessive even when the juries on such IP cases have not, so why not change this?
What to set the bar to would need to vary. A digital song in mp3 format that costs $0.99 on iTunes should not ever be worth $150,000 per infringement for sharing in a non-criminal fashion. How that’s not a due process violation, I don’t know. But at the same time, if you infringe upon a piece of software that costs $20,000, having a penalty of $500 per infringement doesn’t make sense either. What we need is a ratio or formula that can be applied universally which determines value. Or maybe different ratios for different industries. The end result of this reform would be twofold: to bring some sanity back to damages for infringement in a digital age where copying is required by nature of the computer, and to keep litigation from being the business model of those who have such government granted monopolies.
Capitalism and the purpose of business are not about IP monopolies. They’re about competition, innovation, and marketing, which, again, I discussed in my speech on capitalism. As such, the second change needed is just as the RSC paper states: expanded fair use. Too many organizations are trying to stifle fair use, be it videos of our children singing songs to journalists reporting on a leaked government memo. Fair use is intrinsically tied to our First Amendment’s freedom of speech and freedom of expression. From music to movies, fan fiction, reverse engineering, and more, fair use expansion will further help us promote science and useful arts. Drug companies may dislike the notion that other companies might reverse engineer their work, but they also get equal opportunity to reverse engineer other companies’ works as well in their quest to understand and innovate. The result for consumers is more safety and freedom, the result for business is more insight and competition, and the result for our country is advancement of culture. Everyone wins, except those who don’t want any fair use. But screw those guys who don’t want to contribute to society in a manner that directly violates our Constitution.
Criminal infringement is a very different story. Infringement for resale and profit is very different than downloading or sharing a creative work. Criminal infringement needs to be included in this reform to balance out the tort reforms being suggested. As such, because it is criminal behavior like downloading a computer game and then reselling thousands of copies on the black market, let us have stiffer penalties for that. Increased punitive damages, potential jail time, and other ideas I’d be opened to. It is criminal after all.
I also think punishment of false copyright claims is a must, like the RSC paper states. If anyone can request a DMCA takedown of anything on the internet with no repercussions, how would the internet survive? False claims and continued false claims occur, such as photographer David Slater insisting he owns the copyright on a selfie photo that a monkey took with his camera, even after the U.S. Copyright Office specifically called out the photo as an example of something in the public domain.46 It’s a legal burden of proving innocence rather than guilt because the takedown assumes guilt by default. Even if you counter it with fair use reasoning, it’s no guarantee your work won’t be hindered through cease and desist notices or even a costly legal battle.
I also find the reduction of copyright terms coupled with a disincentive to renew as spelled out in the RSC paper to be a great idea as well. In today’s society where technology and content changes in an instant, I would suggest 14 years for copyright like the Founding Fathers came up with, plus a potential for 14 year extensions, but the extension would come with a burden. This burden could be something like higher taxes on revenue generated over the extension or something more benign like mandatory free access and full use for any educational body. The RSC paper suggests renewal charges based on revenues generated by the copyright during the first free term which could be a good idea for upfront cost versus taxes. Plus who likes paying taxes?
This point on copyright extension is very important because the next extension is set to be voted on in 2018. The next President will deal with this issue.
On top of these points which the RSC paper and I agree on, I would suggest other points.
To begin, we need to raise the bar on “significant differences” when it comes to the U.S. Patent and Trademark Office issuing new patents. This will combat problems like evergreening of pharmaceutical drugs. Likewise, a review of what can be patented, in general, needs to happen as plenty of patents, especially in technology, are being issued when “prior art” can clearly be found. Case in point, Amazon received patent 8,676,045 which is essentially a patent on photographing things against a white background, something that photographers have been doing since photography was invented.47 How could they get that? Because the Court of Appeals for the Federal Circuit- which the Supreme Court has smacked down a number of times now for their handling of IP related cases- determined that one rule for the “obviousness” of a patent would be that the obviousness would be written down somewhere. If it wasn’t written, it could not be obvious. Thus Amazon’s patent for photography against a white background from a certain distance is considered non-obvious, which is hogwash and why I say new rules are needed for the USPTO when it comes to granting patents in the first place.
Next I would give back to taxpayers. Any document produced by government or a government entity immediately goes into public domain. There should be no copyright on that created by government.48 None. Our taxpaying dollars go to those who produce that work, which in a way makes it a work funded by the American people. Thus it needs to be freely available and accessible from a copyright perspective. National security is another matter so of course documents of a clandestine nature won’t be affected by this, but national security is a another topic entirely.
I would also give back to taxpayers in the form of patent freedom. When government gives out grants- and it gives out lots of them, over $75 billion each year from what I understand- those grants are sometimes used by businesses or universities to create new inventions, new medicines, and more. Currently under the Bayh-Dole Act of 1980, organizations making use of taxpayer money to develop products for sale or licensing can retain those rights with minimal effort. They can do this because, prior to the act, the Federal Government retained control of all inventions/discoveries and was responsible for licensing to others. That is one case where big, bloated, inefficient government sucked, but the response to that government problem was to allow businesses to use their paid-for inventions and profit from a government granted monopoly, essentially going to the opposite extreme. This proposal aims to end that. Because it is taxpayer money, if you create something copyrightable or patentable, we need to balance out the purpose of our IP law- namely to promote the progress of science and the useful arts- with your ability to make money.
Two solutions come to mind. The first is that any creation or patent derived from taxpayer money immediately goes into the public domain. You can make a product and sell it, but others will be able to as well. The public helped pay for it after all. But this may seem unfair because the creator did the work of creation and everyone else is just making use of that work. Like Benjamin Franklin said, we make use of the IP of others daily, even unconsciously, in our quest to exercise new ideas and creations.49 It should be available for all. However, I do appreciate the level of skill and effort required to create and thus, for a second solution, I could easily see a shortened patent or copyright term for government funded research. Five years would be a good start, with no term extension possible.
I also want to say that such research conducted by universities that gets published in various academic journals should also be made freely available to the general public. In today’s era of obscene academic journal pricing, knowledge is kept behind paywalls that hinder the progress of science and the useful arts. It’s a huge pain in the ass for me to go to a university and get a friend to give me wifi access so I can download academic articles for my own research and education instead of paying upwards of $100 each. $100 for sometimes four pages, pages which may have been funded by taxpayer money in the first place. That needs to end as well. Students will prosper and non-students will have access to more educational material than ever before.
Another change needed to the system is the creation of a database of copyrighted works that requires mandatory signup. I know, this is more government and that’s an immediate turn off to many of you. However, this is not some bloated agency, but rather a system that would be setup and managed by the Library of Congress. In today’s age of internets and technology, the lack of such a database creates more headaches than it should. So I propose that all copyright registration and renewal could be done online, via the Library of Congress for a fee of $1 for registration and $1 for renewal. Prior to 1976, copyright protection required creators to register and renew with the Library of Congress. Then that “formality” was eliminated for… well, I have no idea why. But the result is that we now have an orphaned works problem. Thousands upon thousands of books, films, art, and more created in the mid-20th century rot away because no one can figure out who owns the copyright on the work, thus making digitization and immortality, more or less, impossible. Well, not impossible, but legally super dangerous because of the exact problems I’ve been outlining this entire page. Say you find a book written in 1936. You can’t find the book on Amazon, you can’t locate the author or even the publishing house. It’s a great book, but falling apart. Do you scan it digitally? I would, but then five years from now I might get a nasty lawsuit for copyright infringement, which is why these changes are needed and why a database of copyrighted works would save universities and libraries and thousands of others the headache and confusion over what’s legally allowed and what is legally unwise.50
The next solution requires a change to the DMCA’s list of exemptions. The entire anti-circumvention clause needs to be removed or altered extensively to grant more freedoms. Not only is it a matter of fair use and convenience, like if I want to rip a movie I bought to my computer to then transfer to my tablet and phone which I’ve also jailbroken or if a library wants to archive pieces of our nation’s great cultural heritage, but it’s also a matter of security. Technology is advancing whether we like it or not and with those advancements comes new security risks, even from benign sources. You might recall back in the early 2000’s when Sony BMG installed rootkits disguised as “copy-protection schemes” on user machines via music CDs, provided a failure of an uninstaller, violated copyright law itself by using open source code against licensing terms, and resulted in a class-action lawsuit.51 Were it not for security folks poking around trying to discern what was happening, the rootkit may have remained and, worse, kept user’s system vulnerable to security breaches. Imagine if that happened at a government agency where an employee wants to listen to their favorite artist on their computer. Suddenly, there’s a network threat, all in the name of copyright (that actually happened on computers run by the DoD).52 Because of the DMCA’s overly broad anti-circumvention clause, researchers cannot do their job.
Security research and vulnerability discovery is about circumvention. That’s how security breaches happen; they circumvent safeguards to access protected things. Thus any security researcher worth their salary needs to be free to conduct their research without threat of censorship and/or lawsuit courtesy of the DMCA.
Fixing the DMCA’s anti-circumvention clause will also give those with disabilities legal avenues to take in content. Currently, because of such clauses, people who are blind cannot remove digital locks on ebooks they have legally purchased for use with screenreaders and read-aloud functionalty because, that’s right, the audio of the book is protected by copyright.53 Even though you own the ebook, you don’t own the ebook in spoken format. This isn’t purely an ebook problem either; the MPAA also pushed the Obama Administration to take a tough line on negotiations to a World Intellectual Property Organization treaty on copyright exceptions for the blind.54 They wanted to strip all references of fair use and impose new financial liabilities on libraries that serve blind people.55 Yes, they wanted obscene statutory damages for libraries that serve blind people. How freaking cold and heartless is that? The MPAA is actively trying to keep disabled individuals from enjoying their content, actively trying to keep them from spending money on content they want to experience. What a crock! And this is why the anti-circumvention change is needed.
We also should eliminate software patents and eliminate copyrightability of programming API's. Many pieces of the software world exist and occur because that's the logical way things have been named and used over the course of the last 20-30 years. Concepts like linked lists, stacks, heaps, hashmaps, and more. From the API perspective, claiming copyright on an API could mean that LinkedList is what you call a linked list in Java, LinkedStuff might be what you call a linked list in C#, ConnectedList might be what you call it in Objective-C, etc. Different words for the same thing. Furthermore, the danger with software patents is that they grant absolute monopolies on ideas and algorithms that may not be all that different than what already exists. All software does is execute mechanical or electromechanical actions in the digital realm. The logic involved with conditional statements and orders of operations is so widely used and repeated by all developers that granting a patent on one method would have potentially catastrophic effects on every other developer, especially- as mentioned earlier- since it's already mathematically impossible to verify you code against all software patents currently in existence. If you are a giant company with money and lawyers and a huge software patent portfolio you typically favor software patents because these patents let you extract monies for other companies and protect you from would-be lawsuits. "You don't sue me, I won't sue you" type arrangements. Most startups in the tech sector do not have that backing. It's not equality of opportunity in the slightest and it should be eliminated.
Finally I want to add some kind of fee shifting mechanism to the legal process. When court costs in civil IP cases can easily break $10,000- and that’s the ridiculously low end since typical defenses end up costing $1-2 million in legal fees, non-practicing entities and entities looking for easy money need to have their abuses curbed. These NPE's make use of vague and/or broad patents to encourage others into settling since those legal fees are so high even for a defense; settling for $5,000 is a lot cheaper than going to court for potentially hundreds of thousands in legal fees that one may not got back if they win. One way to counter this trend is fee shifting where the prevailing party is entitled to legal fees. This way, you better be sure you’re suing someone for real IP infringement before you actually do so. The cost otherwise would could be great. On the flip-side of this argument, a company with a sure-fire win could sue and then hire tens of millions of dollars worth of lawyers to "prosecute" the case, which is overkill. Perhaps there can be a measure of due process in fee reimbursal much like there can be in statutory awards.
All these possible solution, yet the Obama Administration and the GOP Congress have been complete failures when it comes to IP law. President Obama has stated in a couple State of the Unions his desire to reform, but has done absolutely nothing to move that forward. Many Democrats are pro-IP law anyway, including Senate Minority Leader Harry Reid. So with Democrats staunchly opposed, why aren’t Republicans swooping in to do what the American people want? Because we, the people, do want these reforms. We need these reforms. Our nation and the world will be better because of it. So why hasn’t the GOP taken up that mantle? The party is eager to get new, young voters. I guarantee you that if the GOP did take up serious IP reform, the kind I’ve been discussing at length on this page, hundreds of thousands if not millions of individuals would switch allegiance. I probably would have.
But the GOP does not. They will not. When they tried with the release of the study by Derek Khanna in the RSC, they immediately retreated from it. And thus, America, our two party system fails. Our demands are not met, our representatives don’t seem to want to represent us in this matter and lobbyist and organizations worth less overall than Apple, Google, or Microsoft makes in a single quarter are screwing us. Copyright industries con us and we need to wake up to this fact.56
IP reform is about innovation, advancement, and bettering ourselves and others-
- It will give more access to educational materials to everyone, it will allow for more widespread entertainment,
- it will allow for greater enjoyment of technology,
- it will return ownership of our legally purchased content to us,
- it will allow older firms to spend more on research and development instead of lawyers and patent protections,
- it will force lazy, stagnant firms to either innovate or vanish,
- it will remove the element of fear from technology startups,
- it will create job growth because of the opportunity to innovate and compete- and remember, I’m all about equality of opportunity here,
- it will help take care of the income inequality problem because wealth concentrations by wealthier firms will need to be used to innovate and compete with smaller firms,
- it will help lower the cost of healthcare by providing cheaper medicines and generics sooner, which also lowers government spend on healthcare via Medicare, Medicaid and the like,
- it will allow our security researchers to do their job properly,
- it will give farmers one less thing to worry about,
- it will stimulate the economy which will result in more money being spent on innovative goods and services which, fortunately and unfortunately, results in more taxes being collected to help us reduce debt and curb deficits without additional taxes,
- and so much more.
The increase in business dynamism would be noticeable within a couple years, tops. The economy would change and explode as if it got hit with a shot of adrenaline. I just know it would.
However, there is a catch here. In the nature of being completely honest, I must cover the downside. And the downside is that people may lose jobs. Companies may go out of business. There are firms that exist solely to leverage IP law for profit, not contributing anything to society, and they employee individuals who may or may not agree with that line of thinking. But a job is a job. And I would not be surprised to see those people get fired, which is tragic and no fault of anyone’s except upper management with piss poor business models. This may also negatively affect the stock market as a number of stocks, especially pharmaceuticals, have forward earning projections based off of revenue from drug patent monopolies. Firms may pull their investments and valuations may crash. But again, America is not about supporting piss poor business models. We’re about innovation, progress, hard work and success. Equality of opportunity.
If there is one core piece to my entire campaign, it is our nation’s unalienable Rights and freedoms. If there is one thing I can contribute to our society over the life of my campaign, it would be to defend those Rights and freedoms and ensure that all Americans realize they deserve life, love, liberty, honor, the pursuit of happiness, and humor to the fullest. But if I could chose the next big part of my campaign? It would be IP reform.
IP reform touches so many parts of our nation- economically and socially; changing that would be a huge catalyst for advancement and bettering everything else. Millions upon millions of Americans want it and neither party wants to listen. Our pleas fall on deaf ears to the market thanks to the “maximization of shareholder value” principle I’ve discussed. And I’m tired of knowing it’s mathematically impossible for me to not infringe on someone’s software patent, thus making it seem futile to start my own company.
If you want more of the same, more of leaders who won’t listen to you, more of leaders who cater to lobbyists, more of leaders who favor really bad business models, then don’t vote for me. I’m not the guy you want. But, if on the off chance you do want to see much needed reforms, please keep me in mind as a Presidential candidate you might want to support.
- See 17P & Makena: Exploiting Premature Birth For Billions In Profit for more information and a larger history on Makena's use with premature births.
- See We all pay for $1,000 a pill drug.
- See Gilead, Abbvie Price War May Reach Fever Pitch In Europe for more info along with some interesting cost analysis on the drugs and the hepatitis C market in general.
- See The Cost Of A Cure: Medicare’s Role In Treating Hepatitis C.
- See The fiercest debate in healthcare is about a $1,000 pill. It also eclipses spending state parks and emergency drought response.
- See Drug Firms Face Billions in Losses in ’11 as Patents End.
- Ibid. Consider the meaning of slashing research and development at a time when your patent monopoly wears off. It makes it more difficult to come up with new treatments and new revenue streams.
- See A license to steal: India Skirts Patent Laws to Help Companies and Poor.
- See MDY Industries, LLC v. Blizzard Entertainment, Inc. The software was a bot program- something that automates tasks a real person might do in an online gaming environment. Moral dubiousness aside, the idea that copyright infringement is occurring because the bot software reads addresses and "controls" characters in a violation of the EULA. The court also ruled that game purchasers are licensees and not owners of the software in question, a problem we keep coming back to in the IP world.
- See Guess What, You Don't Own That Software You Bought. The case ruling can be found here.
- See USPTO Urged To Limit Vague Software Patents, Curb "Trolls."
- See Scaling the Patent System.
- You can search for the number of registered patent attorneys and agents on the USPTO's website through this url. I entered "US" for country and got ~42,000 results.
- See Supreme Court won't weigh in on Oracle-Google API copyright battle and Oracle's Java API code protected by copyright, appeals court rules.
- See Patent troll Lodsys sues mobile game makers, despite Apple's Intervention and Apple asks patent troll Lodsys to leave iOS developers alone and Patent trolling firm Lodsys now targeting big retailers and Patent troll Lodsys also threatening Android devs and Patent troll Lodsys chickens out, folds case rather than face Kaspersky Labs as examples of copyright for profit down the supply chain.
- See Managing Costs of Patent Litigation. As the article points out, the extra hurt comes from NPE's who rely on litigation as a business model.
- See Monsanto wins $1b verdict on RoundUp Ready Seed Patent.
- See Supreme Court Decides Quanta v. LG Electronics.
- See Monsanto Wins Patent Dispute Against Farmer Who Bought Legal Seeds.
- See Monsanto Wins Case Of Seed Patents, Planting Your Own Legally Purchased & Grown Seeds Can Be Infringing.
- See Supreme Court blocks patenting of genomic DNA.
- See We Can't Let John Deere Destroy The Very Idea Of Ownership. In the article is a link to the comments sent to the Copyright Office concerning ownership and IP circumvention on tractor software.
- Comments made to the Copyright Office in response to not allowing DMCA circumvention by "owners."
- In the 1930s, the fashion industry took it upon themselves to try and copyright their designs which led to strong-arming stores into not selling competitor products. The Supreme Court would push the kibosh on that, but those in the industry shouted doom and gloom. $200+ billion valuations worldwide would seem to disagree with that negative thinking.
- It should be pointed out that Giorgio Armani is aware of the copying habit in the industry- usually termed “referencing”- and feels that such copying is a good thing. It shows him that they’ve created a product people want and want to copy. See 10 Questions for Giorgio Armani for more.
- See Why That Hoodie Your Son Wears Isn’t Trademarked. Many articles and studies have been done surrounding copyright on fashion designs which show that lack of copyright has brought about much more innovation and cheaper products than might otherwise have come to pass.
- See Thou Shalt Not Knock Off.
- See Motor Vehicle Owner's Right to Repair Act.
- See Automakers agree to 'right to repair' deal.
- Comments made to the Copyright Office in response to not allowing DMCA circumvention by "owners."
- See NFL Thwarts Church's Plan to Show Super Bowl.
- See NFL Continues To Help Professor Demonstrate How Copyright Owners Abuse The DMCA.
- See Fantasy Sports Win Rights to Player Names, Statistics.
- See Republican Study Committee Intellectual Property Brief. Since the paper was retracted, the only place to find it online is via a google search to locate other sites that might have saved the document. Imagine if the RSC claimed copyright on the paper and issued DMCA takedowns to get it removed from the web. This might have been a very different endnote.
- See That Was Fast: Hollywood Already Browbeat The Republicans Into Retracting Report On Copyright Reform.
- Republican Study Committee Intellectual Property Brief.
- See The Writings of Thomas Jefferson. See also On The Constitutional Reasons Behind Copyright And Patents. The full quote from Jefferson is as follows-
Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
- See Aspects of Monopoly One Hundred Years Ago. The essay was supposedly unpublished by our Fourth President, James Madison, as a paper entitled “Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments.” One quote in particular surrounding the granting of monopolies follows-
But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.
- See Memoirs of Benjamin Franklin. Franklin discusses an idea he had for a better open stove wood fireplaces to warm rooms. Such new fireplaces proved popular and Franklin declined a patent. His recollection of the matter follows-
… To promote that demand [for the improved fireplaces], I wrote and published a pamphlet, entitled “An Account of the new-invented Pennsylvania Fire Places; wherein their construction and manner of operation is particularly explained, their advantages above every method of warming rooms demonstrated; and all objections that have been raised against the use of them, answered and obviated.” This pamphlet had a good effect; governor Thomas was so pleased with the construction of this stove as described in it, that he offered to give me a patent for the sole vending of them for a term of years; but I declined it, from a principle which has ever weighed with me on such occasions, viz: That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.
What’s interesting is that in the next paragraph, Franklin mentions that an ironmonger in London took his idea, got a patent in Britain with some small changes, and made a small fortune from it. But he didn’t care as Franklin claimed no desire for profits. He was just happy that so many fireplaces could be used in Pennsylvania, saving the inhabitants a lot on wood.
- See Paraphrasing Selma for more info. The King Estate's previous licensing agreements and copyright law prevents such treasures of American society from being as widespread as they could be, unfortunately.
- See Aspects of Monopoly One Hundred Years Ago. Of particular interest is this quote-
Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight.
- See Compendium of the U.S. Copyright Office Practices, page 64 for the explicit monkey photograph callout.
- See US Patent Office Grants ‘Photography Against A White Background’ Patent To Amazon.
- Both Georgia and Mississippi have threatened individuals with making free and publicly accessible the laws of the state. Because the laws of states are typically a mess to read, some individuals have taken it upon themselves to make them more reader friendly, annotations and all. Now, because the annotations are included with the law, copyright questions come in to play. Does the private company compiling the annotations in the first place own copyright on the laws? Some legal experts claim it is, but then Mississippi also claims that the annotations are part of the law, which would mean they should be in the public domain. None the less, both states (and likely others) have gone after individuals for reprinting and distributing the laws of state, words which should never be held under lock and key. See Mississippi The Latest State To Claim Copyright Over Official Compilation Of Its Laws.
- See Memoirs of Benjamin Franklin.
- The problem with public domain in the United States is much larger than a single paragraph in a speech could ever do justice. It’s a problem which keeps the words to “Happy Birthday” covered by copyright because the copyright holders claims the first official printing of the lyrics were in 1935 while the first unofficial printing was in 1912 (after being much older). It also keeps a letter from John Adams to Nathan Webb written September 1, 1775 under copyright because the Massachusetts Historical Society transferred it to microfilm in 1956 and registered that in 1956 followed by a renewal in 1984 which means the copyright will expire in 2052. Also, it may be considered copyright infringement if you reproduce/distribute a public domain file (like a court document) that has in it a piece of copyrighted material, such as a scan of Superman in Action Comics #1 in the case of Joanne Siegel and Laura Siegel Larson v. Warner Bros. Entertainment Inc.; Time Warner Inc.; and DC Comics, then you might be guilty of copyright infringement. See What Public Domain? and When Is 1923 Going To Arrive and Other Complications of the U.S. Public Domain for more info.
- See Real Story of the Rogue Rootkit. Sony lied about the rootkit, what it did, and only came clean after massive backlash. It’s not better to ask for forgiveness than permission; it’s better to not do it in the first place.
- The American Foundation for the Blind and the American Council of the Blind both petitioned the Copyright Office to have read-aloud functionality for ebooks and digital works be an exemption to the DMCA. See their petition at http://www.copyright.gov/1201/2011/initial/american_foundation_blind.pdf
- See MPAA, other publishers ask White House to take hard line in Treaty for Blind negotiations.
- See How Copyright Industries Con Congress. The article covers a lot of economic misnomers about “losses” due to IP infringement. See also 750,000 lost jobs? which provides more in-depth analysis of the bogus numbers the entertainment industries tout.