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Professor Lawrence Lessig, Stanford Law School
Lessig:
If synthesize technology, law and market together you may see a change in the market otherwise not seen directly.
You are now ready to be “brainwashed” to accept this concept of free culture (ok, he’s jokin)
Free markets, free will, free willie…
But we are not saying free in terms of cost but in terms of characterization of the ecosystem (free trade vs free beer)
Am not endorsing world where artists don’t get paid
…
1928 – Walt Disney
1. Created steamboat willie
a. Gave birth to Mickey Mouse
b. Which gets us to Disney Co
Buster Keaton (1928) created Steamboat Bill which is the source of Steamboat Willie
This is a kind of creativity – walt Disney creativity – always parroting feature length films – always building upon work in public domain.
Free culture is the freedom to take change and release adaptations of the culture around you…
Speaks of “dojinshi” copycat comics in Japan – and the creativity it drives
Why was Walt Disney creativity possible?
1. Legal Reason
a. Duration – copyright supposed to be a limited time
b. Important thing to focus on – public domain is the “lawyer free zone” where you don’t need to ask anyone what to do with that culture.
c. Before 1774 in anlgo American tradition – copyrights were perpetual – House of Lords determined that terms were limited
d. American constitution then replicated that idea that at some moment the item would pass into public domain
e. Vast majority of work was public domain from time of creation as no one chose to exercise their right
f. Avg copyright term has tripled in last 30 years (1973 – 28 years with a renewable term – 32.2 years avg) today it is maximum of 95 (courtesy of Sonny Bono Copyright Term Exension)
g. Since copyrights don’t have to be registered – you don’t even know where to start to get permission to modify a work
2. Technology
a. Reach of copyright
i. Regulates techs that copies
ii. Fair use
1. quote
iii. Enter Internet
1. now every act is a copy
2. Copyright Office says you can have an action against you for using a work without owner’s permission.
iv. Before Internet
1. Law was controlling (i.e. a Judge has to look at complaint)
v. With internet –
1. You argue with the machine (controls, etc) – regulated by the code that gives you access to the work
vi. Talks of aibopet.com –
1. teach you Aibo jazz
2. But, the DMCA says the dog can’t dance
3. so you have law protecting code protecting law
3. Market change
a. Concentration (extraordinary)
i. Copyright is a monopoly
ii. Framers limited power of that monopoly
iii. But the pettiness has changed
1. Size – 80% of music by 5 companies
a. 70% of radio by 4
b. 80% of newspaper
c. only .5% foreign films in market
2. scope
a. 1969 – Lear – Archie Bunker
b. ABC wanted him to tone it down
c. He got racier every time
d. So he took it to CBS
e. That was artistic control rule at that time separated content from conduit
f. 1994 a change in rules – abolished Fin-Syn rules
i. Valenti fought (get those quotes) in congressional testimony saying the customer would lose.
g. FCC relaxed ownership rules on media
4. Never have a fewer number of actors exercised more control over development of culture. So no one can do to Disney what Disney did to the Brothers Grimm
5. This is insane, unintended consequence of the confluence of these changes – 200 years of lobbyists pushing on one side of equation.
6. Property v. piracy
a. 1995 Eldred starts building free library
b. 1998 Sonny Bono Act took some works out of domain
c. gave birth Eldred v. Ashcroft
d. Court said up to congress
7. Two ideas for alternatives
a. ALL
b. NONE
c. But there is room for SOME
d. Solving for the extremes denies SOME
e. Creative Commons provides for the middle (SOME)
8. Defending “fair use” is bad way of understanding what we want.
a. Ought to discuss free use.
Fisher
Another proposal in the same spirit of moderation and aspiration to craft a legal system that simultaneously respects legitimate interests of creators while affording maximum oppties for consumers to access it and exercise their creativity.
Specific target is music and film industries.
Remember, evolution of legal system has been interpreted to impede benefits of internet distribution of digital entertainment.
A couple of ways to look at
1. To enhance property rights
2. Regulate the industry
3. An alternative compensation system
Governments have experimented on managing problem of underproduction of public goods
1. Government provides it (armed forces, light houses)
2. Government subsidizes it (e.g. NSF)
3. Government issues prizes (reward system for atomic energy inventions)
4. Government confers monopoly power on producers
a. e.g. 19th c. toll roads, intellectual-property rights
5. Govt assists private parties in increasing “excludability”
a. Trade-secret law
b. Anti-circumvention law
Strategy 4 and 5 are not working any longer as mechanisms
Recommendation is to reconsider merits of strategy 3
How work? (details at www.tfisher.org )
1. Register
a. Copyright owners get unique id #
b. Unique id # inserted into file name
c. Application designates
i. Any other registered digital recordings incorporated into the work
ii. Duration of the incorporated work
d. Registration fee
2. Taxation
a. Provide creators full social surplus of their efforts
b. Fairness
c. Make creators, as a group, whole
d. Preserve a flourishing entertainment culture
So what would that cost
1. Music Industry ??? billion (taking from published estimates of losses
2. Film - $1.7 billion
3. Admin costs
4. Total 2.4 billion
So he runs tax tables on cds, internet access, etc to pay for this
3. Count consumption
a. Webcast play lists
b. Count downloads
c. P2p systems county sharing registration numbers
d. Surveys
e. Sales of pre-recorded cds
4. Payment
a. Distribute money in proportion with frequency that each creator has works consumed
5. Lift copyright system and DMCA
Who gets hurt?
1. Manufacturers
2. Distributors
3. Retailers
4. Record Companies and Studios?? Only if they don’t change business model
Demerits of plan
1. Distortions and Cross-subsidies
2. Giving a govt agency considerable power
Professor Lawrence Lessig, Stanford Law School
Lessig:
If synthesize technology, law and market together you may see a change in the market otherwise not seen directly.
You are now ready to be “brainwashed” to accept this concept of free culture (ok, he’s jokin)
Free markets, free will, free willie…
But we are not saying free in terms of cost but in terms of characterization of the ecosystem (free trade vs free beer)
Am not endorsing world where artists don’t get paid
…
1928 – Walt Disney
1. Created steamboat willie
a. Gave birth to Mickey Mouse
b. Which gets us to Disney Co
Buster Keaton (1928) created Steamboat Bill which is the source of Steamboat Willie
This is a kind of creativity – walt Disney creativity – always parroting feature length films – always building upon work in public domain.
Free culture is the freedom to take change and release adaptations of the culture around you…
Speaks of “dojinshi” copycat comics in Japan – and the creativity it drives
Why was Walt Disney creativity possible?
1. Legal Reason
a. Duration – copyright supposed to be a limited time
b. Important thing to focus on – public domain is the “lawyer free zone” where you don’t need to ask anyone what to do with that culture.
c. Before 1774 in anlgo American tradition – copyrights were perpetual – House of Lords determined that terms were limited
d. American constitution then replicated that idea that at some moment the item would pass into public domain
e. Vast majority of work was public domain from time of creation as no one chose to exercise their right
f. Avg copyright term has tripled in last 30 years (1973 – 28 years with a renewable term – 32.2 years avg) today it is maximum of 95 (courtesy of Sonny Bono Copyright Term Exension)
g. Since copyrights don’t have to be registered – you don’t even know where to start to get permission to modify a work
2. Technology
a. Reach of copyright
i. Regulates techs that copies
ii. Fair use
1. quote
iii. Enter Internet
1. now every act is a copy
2. Copyright Office says you can have an action against you for using a work without owner’s permission.
iv. Before Internet
1. Law was controlling (i.e. a Judge has to look at complaint)
v. With internet –
1. You argue with the machine (controls, etc) – regulated by the code that gives you access to the work
vi. Talks of aibopet.com –
1. teach you Aibo jazz
2. But, the DMCA says the dog can’t dance
3. so you have law protecting code protecting law
3. Market change
a. Concentration (extraordinary)
i. Copyright is a monopoly
ii. Framers limited power of that monopoly
iii. But the pettiness has changed
1. Size – 80% of music by 5 companies
a. 70% of radio by 4
b. 80% of newspaper
c. only .5% foreign films in market
2. scope
a. 1969 – Lear – Archie Bunker
b. ABC wanted him to tone it down
c. He got racier every time
d. So he took it to CBS
e. That was artistic control rule at that time separated content from conduit
f. 1994 a change in rules – abolished Fin-Syn rules
i. Valenti fought (get those quotes) in congressional testimony saying the customer would lose.
g. FCC relaxed ownership rules on media
4. Never have a fewer number of actors exercised more control over development of culture. So no one can do to Disney what Disney did to the Brothers Grimm
5. This is insane, unintended consequence of the confluence of these changes – 200 years of lobbyists pushing on one side of equation.
6. Property v. piracy
a. 1995 Eldred starts building free library
b. 1998 Sonny Bono Act took some works out of domain
c. gave birth Eldred v. Ashcroft
d. Court said up to congress
7. Two ideas for alternatives
a. ALL
b. NONE
c. But there is room for SOME
d. Solving for the extremes denies SOME
e. Creative Commons provides for the middle (SOME)
8. Defending “fair use” is bad way of understanding what we want.
a. Ought to discuss free use.
Fisher
Another proposal in the same spirit of moderation and aspiration to craft a legal system that simultaneously respects legitimate interests of creators while affording maximum oppties for consumers to access it and exercise their creativity.
Specific target is music and film industries.
Remember, evolution of legal system has been interpreted to impede benefits of internet distribution of digital entertainment.
A couple of ways to look at
1. To enhance property rights
2. Regulate the industry
3. An alternative compensation system
Governments have experimented on managing problem of underproduction of public goods
1. Government provides it (armed forces, light houses)
2. Government subsidizes it (e.g. NSF)
3. Government issues prizes (reward system for atomic energy inventions)
4. Government confers monopoly power on producers
a. e.g. 19th c. toll roads, intellectual-property rights
5. Govt assists private parties in increasing “excludability”
a. Trade-secret law
b. Anti-circumvention law
Strategy 4 and 5 are not working any longer as mechanisms
Recommendation is to reconsider merits of strategy 3
How work? (details at www.tfisher.org )
1. Register
a. Copyright owners get unique id #
b. Unique id # inserted into file name
c. Application designates
i. Any other registered digital recordings incorporated into the work
ii. Duration of the incorporated work
d. Registration fee
2. Taxation
a. Provide creators full social surplus of their efforts
b. Fairness
c. Make creators, as a group, whole
d. Preserve a flourishing entertainment culture
So what would that cost
1. Music Industry ??? billion (taking from published estimates of losses
2. Film - $1.7 billion
3. Admin costs
4. Total 2.4 billion
So he runs tax tables on cds, internet access, etc to pay for this
3. Count consumption
a. Webcast play lists
b. Count downloads
c. P2p systems county sharing registration numbers
d. Surveys
e. Sales of pre-recorded cds
4. Payment
a. Distribute money in proportion with frequency that each creator has works consumed
5. Lift copyright system and DMCA
Who gets hurt?
1. Manufacturers
2. Distributors
3. Retailers
4. Record Companies and Studios?? Only if they don’t change business model
Demerits of plan
1. Distortions and Cross-subsidies
2. Giving a govt agency considerable power
Application : Music
The future of entertainment : music
Professor Charles Nesson
Professor Jonathan Zittrain
Leslie Vadasz, director emeritus, Intel Corp.
Fred von Lohmann, EFF
Defending the current business model
Towards new business models
Fred:
EFF wants to preserve the rights you had before the electronic world came along
Leslie:
Had testified in front of Hollings about protecting digital content. Hollings didn’t like what he said.
Nesson:
Problems of going towards a model like Fisher’s are immense. Interests will fight like hell to prevent such a plan.
Z: Can we agree on framework that music industry should enjoy rights they had before the internet?
Fred:
Artists should. Recording Industry should not.
Z:
Companies are people too. Aren’t those rights being infringed more than ever?
Fred:
As matter of black letter copyright law – that is right. But, the law has changed so much via accident of technology as computers are able to copy things.
Z:
Is harm related to loss on bottom line
Fred:
Some of their claims are highly exaggerated. (e.g. units shipped has declined because they decided to stop selling cd singles)
The downturn is not as big as they would have you believe.
Movie industry, in contrast, is enjoying its most prosperous time. Intel and others would love to trade numbers with the recording industry.
I would change the law to reflect the reality that 60 million Americans are using file sharing sw (wait a minute, that’s almost everyone accessing the internet, isn’t it? Are his numbers sane?)
Z:
Can you sue this problem into submission?
N:
It’s part of the problem.
Usually, reaction is there are too many people to sue. But, if you discriminate, you will find the source, the headwaters of those that are the super nodes of the illegal distribution (In Colin Powell’s terms – you find the head, cut it off and kill it)
Fred:
But it doesn’t stay static. If the tech stood still, maybe.
1) Verizon is in US
2) Vast majority of p2p folks are outside US
3) So, you can’t stop.
4) An effort to get European ISP’s to cooperate will run into privacy issues
5) And, users take their own technical counter measures (like proxies)
Z:
Blubster from cnet.com – anonymous p2p
Leslie
Go to public wifi spots and download – then that is anonymous
…
Fred
P2p is smarter than most counter measure. But, collateral damage that piles up may be severe. E.g. ISP has to give up data on its users to anyone that asks.
Z
Hey, Verizon notifies you that someone is looking for your data
Fred
But they don’t have to do that
Nesson
Let me take that argument all the way. If you are the music or movie industry – you won’t rest till all threats are gone. One of the items of collateral damage is the alteration of the basic architecture of the net.
Fred
Collateral damage is the main concern.
….
Those powerful interests will press for more power . So alternative models like Fisher’s are attractive.
Z
Let’s ask Leslie as a technologist how readily can we adapt the technology so we don’t have a music industry having to sue everyone in sight.
Leslie
I am not speaking for Intel. I don’t think we stop anything.
Z
Trusted Computing Platform Alliance – so what is trusted computing?
Leslie
A machine used in a way that if you send a file – no one in between can access a file without your permission. Gives you privacy in open network.
Z
So, trusted alliance is developing blubster?
Leslie
You can’t talk or question what they do until you have enough information to judge what they are doing.
Z
I thought securing information against prying eyes was about producing a platform of unified hw/sw so that one could trust it would behave in certain ways.
Leslie
You are putting me in a position to defend something I know nothing about. But if I only want you to read the book that I wrote that should be my right
Z
Isn’t that creative commons?
Fred
Such a system would be interesting. But that is not what trusted computing is. We have talked to the alliance about their initiatives - All should learn more about trusted computing – large story for next 5 years – IBM pcs have relevant hw installed – It allows 1) you trust your own computer – like trust a virus has not been introduced 2) whether or not others can trust but MS never intended the system to defend against hw attacks from people with physical access to these machine.
…
Let’s assume there are people able to hack their hw- and they post their find on p2p using the same trusted computing techs- at that moment for every other user – that book that was protected becomes available. A trusted PC will still run unlabeled stuff.
Z
So, trusted computing is no threat to free ware?
Fred
The threat is lower than most people think
Trusted computer has other more interesting questions. If all major banks demand you install following sw on your platform – all much power do you have to resist that?
…
TC is very Matrix like…
Z
Come on taxi cab meters are trusted systems?
Fred
Free the general purpose computer.
Leslie
When you have an open environment like the internet – you have to be able to provide tech to do that.
…Nesson
Question of University role vis-à-vis Verizon is interesting. They are supposedly in moral position to encourage students to obey the law. Plus they have user agreements that make it a contractual obligation. Granted they don’t have a monetary interest.
Suppose someone offered as a service to look at shared folders in university domain and send nice letters to those offenders to cleanse the network. A university’s reaction is initially no – counter to culture of university – not in business to police students. The problem is within the rights owners to take up with the infringers.
But offer a discount to the iTune service and perhaps you shift that population to a norm of following the law.
…
Q :
What of developing countries that don’t have capital to pay for copyright? Course, US didn’t protect other countries’ interest for first 150 years.
Fred:
Talks of commission on intellectual property rights
A condition of free trade with US was Jordan putting in place a DMCA
Nesson
Last few years have been Information Imperialism (locking govts and others that in order to run technologies you need to keep paying copyright) hmm more tomorrow
Audience
All these copyrights are like machine of terror…. Business Software Alliance in poland acts like terrorists – they go with police to firms and audit the sw. And, the police don’t know what to do – and specialists go looking for who knows what… that is example of wrong way to do intellectual property rights.
….
Need to check other sites for notes – I lost some here
The future of entertainment : music
Professor Charles Nesson
Professor Jonathan Zittrain
Leslie Vadasz, director emeritus, Intel Corp.
Fred von Lohmann, EFF
Defending the current business model
Towards new business models
Fred:
EFF wants to preserve the rights you had before the electronic world came along
Leslie:
Had testified in front of Hollings about protecting digital content. Hollings didn’t like what he said.
Nesson:
Problems of going towards a model like Fisher’s are immense. Interests will fight like hell to prevent such a plan.
Z: Can we agree on framework that music industry should enjoy rights they had before the internet?
Fred:
Artists should. Recording Industry should not.
Z:
Companies are people too. Aren’t those rights being infringed more than ever?
Fred:
As matter of black letter copyright law – that is right. But, the law has changed so much via accident of technology as computers are able to copy things.
Z:
Is harm related to loss on bottom line
Fred:
Some of their claims are highly exaggerated. (e.g. units shipped has declined because they decided to stop selling cd singles)
The downturn is not as big as they would have you believe.
Movie industry, in contrast, is enjoying its most prosperous time. Intel and others would love to trade numbers with the recording industry.
I would change the law to reflect the reality that 60 million Americans are using file sharing sw (wait a minute, that’s almost everyone accessing the internet, isn’t it? Are his numbers sane?)
Z:
Can you sue this problem into submission?
N:
It’s part of the problem.
Usually, reaction is there are too many people to sue. But, if you discriminate, you will find the source, the headwaters of those that are the super nodes of the illegal distribution (In Colin Powell’s terms – you find the head, cut it off and kill it)
Fred:
But it doesn’t stay static. If the tech stood still, maybe.
1) Verizon is in US
2) Vast majority of p2p folks are outside US
3) So, you can’t stop.
4) An effort to get European ISP’s to cooperate will run into privacy issues
5) And, users take their own technical counter measures (like proxies)
Z:
Blubster from cnet.com – anonymous p2p
Leslie
Go to public wifi spots and download – then that is anonymous
…
Fred
P2p is smarter than most counter measure. But, collateral damage that piles up may be severe. E.g. ISP has to give up data on its users to anyone that asks.
Z
Hey, Verizon notifies you that someone is looking for your data
Fred
But they don’t have to do that
Nesson
Let me take that argument all the way. If you are the music or movie industry – you won’t rest till all threats are gone. One of the items of collateral damage is the alteration of the basic architecture of the net.
Fred
Collateral damage is the main concern.
….
Those powerful interests will press for more power . So alternative models like Fisher’s are attractive.
Z
Let’s ask Leslie as a technologist how readily can we adapt the technology so we don’t have a music industry having to sue everyone in sight.
Leslie
I am not speaking for Intel. I don’t think we stop anything.
Z
Trusted Computing Platform Alliance – so what is trusted computing?
Leslie
A machine used in a way that if you send a file – no one in between can access a file without your permission. Gives you privacy in open network.
Z
So, trusted alliance is developing blubster?
Leslie
You can’t talk or question what they do until you have enough information to judge what they are doing.
Z
I thought securing information against prying eyes was about producing a platform of unified hw/sw so that one could trust it would behave in certain ways.
Leslie
You are putting me in a position to defend something I know nothing about. But if I only want you to read the book that I wrote that should be my right
Z
Isn’t that creative commons?
Fred
Such a system would be interesting. But that is not what trusted computing is. We have talked to the alliance about their initiatives - All should learn more about trusted computing – large story for next 5 years – IBM pcs have relevant hw installed – It allows 1) you trust your own computer – like trust a virus has not been introduced 2) whether or not others can trust but MS never intended the system to defend against hw attacks from people with physical access to these machine.
…
Let’s assume there are people able to hack their hw- and they post their find on p2p using the same trusted computing techs- at that moment for every other user – that book that was protected becomes available. A trusted PC will still run unlabeled stuff.
Z
So, trusted computing is no threat to free ware?
Fred
The threat is lower than most people think
Trusted computer has other more interesting questions. If all major banks demand you install following sw on your platform – all much power do you have to resist that?
…
TC is very Matrix like…
Z
Come on taxi cab meters are trusted systems?
Fred
Free the general purpose computer.
Leslie
When you have an open environment like the internet – you have to be able to provide tech to do that.
…Nesson
Question of University role vis-à-vis Verizon is interesting. They are supposedly in moral position to encourage students to obey the law. Plus they have user agreements that make it a contractual obligation. Granted they don’t have a monetary interest.
Suppose someone offered as a service to look at shared folders in university domain and send nice letters to those offenders to cleanse the network. A university’s reaction is initially no – counter to culture of university – not in business to police students. The problem is within the rights owners to take up with the infringers.
But offer a discount to the iTune service and perhaps you shift that population to a norm of following the law.
…
Q :
What of developing countries that don’t have capital to pay for copyright? Course, US didn’t protect other countries’ interest for first 150 years.
Fred:
Talks of commission on intellectual property rights
A condition of free trade with US was Jordan putting in place a DMCA
Nesson
Last few years have been Information Imperialism (locking govts and others that in order to run technologies you need to keep paying copyright) hmm more tomorrow
Audience
All these copyrights are like machine of terror…. Business Software Alliance in poland acts like terrorists – they go with police to firms and audit the sw. And, the police don’t know what to do – and specialists go looking for who knows what… that is example of wrong way to do intellectual property rights.
….
Need to check other sites for notes – I lost some here
Business Method Patents
Revised plan: Fisher to talk on Patent law for first hour.
Most other countries in world are hestitating to follow American path on these patents.
5 million patents in world, 82% held in US, Japan and Europe
Will describe pertinent features of American law with some splash of differences found in Europe.
Utility Patents – 95% of US patents
Founded on section 101 – Inventions patentable
Discovery useful process or product
(there is a process patent on a cat exerciser – wiggling a laser point in front of a cat)
Also describes product-by-process patent (a fine sub-group of products)
Plant Patents
Eli Lilly explores effect of Rosy Periwinkle on diabetes
Ineffective there – but effective on leukemia
Increases remission rate on childhood leukemia
Doesn’t get patents – as property
Another extension
Plant Protection Act of 1930
Plant Variety Protection Act of 1970
1981 case (US Sup Ct) – said animal developed to eat oil – is patentable
2001 Pioneer Hi-Bred – now patentable under general utility patents
One backing away
Nuclear weapons were not patentable
Design Patents
Example of how extension process workes
Surgical procedures
· tradition
o Can patent drugs
o diagnostic and surgical procedures not patentable
· change
o Patent office started patents
o New technique for cataract surgery
o Doctor discovered non-linear cuts in line with shape of eyeball (ascertained optimal radius of curve) and sought patent protection
o He asked for fee to educate others
§ But doctors are immunized for liability, device makers liable (?? Need to rework)
Business Method Patents
· Most of 20th century, couldn’t patent business methods
· 1990’s PTO starts granting BMP
· State Street Bank case challenged patentability of bm
o Pool mutual funds into partnership for tax benefits
o Have to track relative magnitude of shares
o So, sw program relatively tracked value
o And got patent
o Competitor sought declaratory judgement action
§ Court of Appeals
· Machine calculation as application of algorithm is patentable
· Repudiated business-methods exception to patentability
§ Thus, surge in patents
§ Drop off in rate since 2001
o Famous patents
§ Priceline
§ Single click shopping
· Amazon v. Barnes & Noble
§ Behavioral programming
· i.e. customizing web experience based on prior use – targeted ads
· Backlash
o Bounties
§ Bountyquest – rewards on prior art
o Litigation
§ Patent Requirements
· Subject-matter coverage
· Novel
· Non-obviousness
· Utility
· Enablement
§ Point of non-obviousness is point of difference in jurisdiction
· 1850 Hotchkiss case established that doctrine
· Cuno Brothers case (1941) “invention must show a flash of creative genius”
· After 1966 (graham) interpretation unstable
· Court of Appeals takes over in 1975 and stabilizes interpretation
· Across Europe and US standards of this doctrine are converging
· Tests
o What is scope and content of the prior art
o Differences between the prior art and claims
o Level of ordinary skill in the prior art
o Secondary (“objective”) factors
§ Commercial success
§ Long-felt, unsolved needs
§ Failure of others
§ Industry acquiescence
§ Suggestions in prior art
§ Fact that defendant chose to copy
· Apply Amazon
o E-commerce limited to shopping carts (scope and content)
o Dramatic step fwd (diff between prior art and claims)
o Very popular (success)
o Prior art taught against it
o Barnes copies
o Tightening standards
§ AIPA
· Prior use defense
· Study of BM by GAO
§ 2000 PTO guidelines
· hire more examiners
· updated databases
· mandatory second exam
§ proposed BM patent improvement act
· Formal opposition procedure
· Invalidity requires only preponderance of evidence
· Missed last 3
o European Initiatives
§ EPC articles prevent patenting BM
· Case law : BMs with a “technical aspect” or that solve a “technical problem” are patentable
§ Fall 2000: member countries decline to revise
· Power of Eurolinux alliance
§ Individual country consultations
§ You can get BMP in Europe
o Japan
§ Limits to industrially applicable
§ Limits patents liable to contravene public order, morality or pblic health
§ Firm on inventive step requirement
· Easiest to obtain in US – harder in other two
Theory
BMP are bad idea
Economic Perspectives
· Reward Theory
o Refer to responses to character of innovation from yesterday
o Suppose you invent new mousetrap
§ In absence of patent, copying and competition wil drive the price down close to marginal cost
§ w/o patent, you can price mouse trap – whatever you want
· ideally – perfect price discrimination (each use right at the point they would walk away)
· rational profit maximizing output strategy
o consumer has surplus in perceived value
o Those that will not pay that price – lose out
o Significance – some relatively poor people don’t get mouse traps (in terms of AIDS – millions die)
o Disadvantages of IPRS
§ Admin costs
§ Impede cumulative innovation
§ Deadweight loss associated with loss of consumer surplus
· Cumulative Inventions
o Primary invention
o Others build, improving on first
§ When reg’d by patents the problem of Rent dissipation (i.e. more people than socially optimal rush to reach the patent first)
· E.g. Social welfare perspective says pay one good team to focusing on that task
· Reward has multiple teams pursuing
· Happens at primary and secondary level as well as alternative technologies
§ Some economists offer alternatives to reduce this multiplicity
· Kitch proposal
o Grant to pioneering inventions – broad scope – enabling pioneers the process of building improvements
· Mergess
o Broad patents create
§ Satisficing behavior
§ Broad patent for pioneer will exacerbate rush to pioneer
§ So, narrow patents
o But that creates rent dissipation at secondary level
Now, back to BMP
Why bad? (another form of government regulation)
· Little evidence that patents stimulate business method innovation
o You do it to get ahead of competition
· Has serious disadvantages
o High transaction costs
o Consumers blocked out
o Impediments to innovation
· BMP should be repudiated
Audience: BMP seems to be non-rivalrous in a market sense. You would be more efficient in that business without protection – you don’t take away their market – you simple allow the entire market to become more efficient
[…]
Netflix got a patent on method for cd rental via mail. But ebay lost their case defending their auction methods.
But how do you define a business method patent
Roughly PTO section 705 – but that is clumsy
Would have to return to position before states v. bank
Case by case to test
….
Revised plan: Fisher to talk on Patent law for first hour.
Most other countries in world are hestitating to follow American path on these patents.
5 million patents in world, 82% held in US, Japan and Europe
Will describe pertinent features of American law with some splash of differences found in Europe.
Utility Patents – 95% of US patents
Founded on section 101 – Inventions patentable
Discovery useful process or product
(there is a process patent on a cat exerciser – wiggling a laser point in front of a cat)
Also describes product-by-process patent (a fine sub-group of products)
Plant Patents
Eli Lilly explores effect of Rosy Periwinkle on diabetes
Ineffective there – but effective on leukemia
Increases remission rate on childhood leukemia
Doesn’t get patents – as property
Another extension
Plant Protection Act of 1930
Plant Variety Protection Act of 1970
1981 case (US Sup Ct) – said animal developed to eat oil – is patentable
2001 Pioneer Hi-Bred – now patentable under general utility patents
One backing away
Nuclear weapons were not patentable
Design Patents
Example of how extension process workes
Surgical procedures
· tradition
o Can patent drugs
o diagnostic and surgical procedures not patentable
· change
o Patent office started patents
o New technique for cataract surgery
o Doctor discovered non-linear cuts in line with shape of eyeball (ascertained optimal radius of curve) and sought patent protection
o He asked for fee to educate others
§ But doctors are immunized for liability, device makers liable (?? Need to rework)
Business Method Patents
· Most of 20th century, couldn’t patent business methods
· 1990’s PTO starts granting BMP
· State Street Bank case challenged patentability of bm
o Pool mutual funds into partnership for tax benefits
o Have to track relative magnitude of shares
o So, sw program relatively tracked value
o And got patent
o Competitor sought declaratory judgement action
§ Court of Appeals
· Machine calculation as application of algorithm is patentable
· Repudiated business-methods exception to patentability
§ Thus, surge in patents
§ Drop off in rate since 2001
o Famous patents
§ Priceline
§ Single click shopping
· Amazon v. Barnes & Noble
§ Behavioral programming
· i.e. customizing web experience based on prior use – targeted ads
· Backlash
o Bounties
§ Bountyquest – rewards on prior art
o Litigation
§ Patent Requirements
· Subject-matter coverage
· Novel
· Non-obviousness
· Utility
· Enablement
§ Point of non-obviousness is point of difference in jurisdiction
· 1850 Hotchkiss case established that doctrine
· Cuno Brothers case (1941) “invention must show a flash of creative genius”
· After 1966 (graham) interpretation unstable
· Court of Appeals takes over in 1975 and stabilizes interpretation
· Across Europe and US standards of this doctrine are converging
· Tests
o What is scope and content of the prior art
o Differences between the prior art and claims
o Level of ordinary skill in the prior art
o Secondary (“objective”) factors
§ Commercial success
§ Long-felt, unsolved needs
§ Failure of others
§ Industry acquiescence
§ Suggestions in prior art
§ Fact that defendant chose to copy
· Apply Amazon
o E-commerce limited to shopping carts (scope and content)
o Dramatic step fwd (diff between prior art and claims)
o Very popular (success)
o Prior art taught against it
o Barnes copies
o Tightening standards
§ AIPA
· Prior use defense
· Study of BM by GAO
§ 2000 PTO guidelines
· hire more examiners
· updated databases
· mandatory second exam
§ proposed BM patent improvement act
· Formal opposition procedure
· Invalidity requires only preponderance of evidence
· Missed last 3
o European Initiatives
§ EPC articles prevent patenting BM
· Case law : BMs with a “technical aspect” or that solve a “technical problem” are patentable
§ Fall 2000: member countries decline to revise
· Power of Eurolinux alliance
§ Individual country consultations
§ You can get BMP in Europe
o Japan
§ Limits to industrially applicable
§ Limits patents liable to contravene public order, morality or pblic health
§ Firm on inventive step requirement
· Easiest to obtain in US – harder in other two
Theory
BMP are bad idea
Economic Perspectives
· Reward Theory
o Refer to responses to character of innovation from yesterday
o Suppose you invent new mousetrap
§ In absence of patent, copying and competition wil drive the price down close to marginal cost
§ w/o patent, you can price mouse trap – whatever you want
· ideally – perfect price discrimination (each use right at the point they would walk away)
· rational profit maximizing output strategy
o consumer has surplus in perceived value
o Those that will not pay that price – lose out
o Significance – some relatively poor people don’t get mouse traps (in terms of AIDS – millions die)
o Disadvantages of IPRS
§ Admin costs
§ Impede cumulative innovation
§ Deadweight loss associated with loss of consumer surplus
· Cumulative Inventions
o Primary invention
o Others build, improving on first
§ When reg’d by patents the problem of Rent dissipation (i.e. more people than socially optimal rush to reach the patent first)
· E.g. Social welfare perspective says pay one good team to focusing on that task
· Reward has multiple teams pursuing
· Happens at primary and secondary level as well as alternative technologies
§ Some economists offer alternatives to reduce this multiplicity
· Kitch proposal
o Grant to pioneering inventions – broad scope – enabling pioneers the process of building improvements
· Mergess
o Broad patents create
§ Satisficing behavior
§ Broad patent for pioneer will exacerbate rush to pioneer
§ So, narrow patents
o But that creates rent dissipation at secondary level
Now, back to BMP
Why bad? (another form of government regulation)
· Little evidence that patents stimulate business method innovation
o You do it to get ahead of competition
· Has serious disadvantages
o High transaction costs
o Consumers blocked out
o Impediments to innovation
· BMP should be repudiated
Audience: BMP seems to be non-rivalrous in a market sense. You would be more efficient in that business without protection – you don’t take away their market – you simple allow the entire market to become more efficient
[…]
Netflix got a patent on method for cd rental via mail. But ebay lost their case defending their auction methods.
But how do you define a business method patent
Roughly PTO section 705 – but that is clumsy
Would have to return to position before states v. bank
Case by case to test
….
Free software and commons-based peer-production
Yochai
Free Software
Characteristics
i. Apache has 60+ percent
ii. Linux - 30% of IS market
iii. Proprietary SW
1. use permitted in exchange for $$$
2. Learning often prevented to prevent copying/competition
3. customization usually only within controlled parameters
4. no redistribution permitted so as to enable collection by owner
iv. Free SW
1. limit’s owners control
2. use for any purpose
3. study source code
4. adapt for own use
5. redistribute copies
6. make and distribute modifications
a. notification of changes
b. copyleft
7. identifying characteristic is cluster of user permitted, not absence of price (not talking free beer here)
v. anatomy of Free SW
1. Raymond, Moody
2. one ore more programmers write sw and release It on the net
3. others use, modify extend or test
4. mechanism for communicating, identifying and incorporating additions/patches into a common version
5. volunteers with different levels of commitment and influence on testing, fixing, and extending
Institutional framework
i. Property
1. property is institutional core of market and firm-based production
a. parameters of exclusion permit charging a price and controlling output of employees.
2. public domain/open access
a. dedication to domain makes sw free
b. allows anyone to use, modify and redistribute
c. weakness: ease of defection/reappropriation by downstream actors may cause demoralization and ex ante non-participation by peers
3. copyleft
a. cluster of licensing provisions that rely on the control property rights provide to make software “free” while protecting against some defections that an open-access commons approach permits
b. distributions is under same terms as original work was licensed
c. clear notifications of changes and attribution
d. covenants run with the program
i. if you break, you lose the license
e. gpl and open source definition do not discriminate between commercial and non-commercial sw
f. Major current questions: what counts as “modification”
4. Ads vs disads of copyleft v public domain
a. Reduces incentives to adopt a proprietary strategy
b. Reduces opportunities for “defection”
c. Retains the integrity of contributions as part of the peer-review process.
Commons-based peer-production
Peer production
i. Various sized collections of individuals
ii. Effectively produce information goods
iii. Without price signals or managerial commands
Human parallel to distributed computing?
i. Various @home projects
ii. Gnutella, freenet
Examples
i. Academic research
1. we select our projects
2. build on what others have done
3. distribute as widely as possible
ii. wikipedia
iii. mars crater analysis
iv. http://slashdot.org
v. google
1. they build web sites by figuring out what people link to…
vi. distribution
1. gnutella
2. distributed proofreading
vii.
Economic analysis
Motivation
i. OSS economics literature maps the diverse appropriation mechanisms
1. intrinsic (make me better off)
a. hedonic
b. community ethics
2. extrinsic
a. supply-side – human capital, reputation
b. demand-side – service contracts, widgets
ii. diverse motivations
1. care for different things other than money
iii. initial implications
1. where component contributions are too fine grained to transact around, peer production dominates (too small to do for money, great to do for greater good)
2. discussion made along lines of formula
iv. peer production limited not by total cost or complexity of project, but by
1. modularity (how man can participate)
2. granularity (min investment necessary)
3. cost of integration
v. value in economic terms
1. human capital difficult to specify/define (can’t price it)
2. by comparison to firms and markets peer-production has
a. information gains
i. human capital highly variable
1. time, task, mood, context, raw information materials. Project
ii. difficult to specify completely for either market or hierarchy control
iii. in peer-production agents self-identity for, and self-define tasks
b. allocation gains
i. best agent on optimum resources
vi. Commons problems
1. different kinds of commons have different solutions
2. information only a provisioning problem, not an allocation problem
3. primary concerns
a. defection through unilateral appropriate undermines intrinsic and extrinsic motivations
b. poor judgment of participants
c. providing the integration function
4. solutions
a. formal rules
b. tech like slash
c. moral/social norms
d. redundancy or avging out
e. iterative peer production of integration
f. reintroduction of market and hierarchy with low cost and no residual appropariate
Business models
Surfers
i. Cost reduction and improved quality
1. google
2. live 365
3. ibm, hp widgets
ii. translation into the price system
1. services/customization/massification
toolmakers
i. sourceforge, OSDN
ii. massive multiplayer games
thematic analysis
diverse motivations with complex relationships to money
peer-production, not OSS
anti-defection mechanisms
i. formal rules, tech restraints, social norms
business opportunities
i. integration without residual appropriation
ii. surfers and toolmakers
Yochai
Free Software
Characteristics
i. Apache has 60+ percent
ii. Linux - 30% of IS market
iii. Proprietary SW
1. use permitted in exchange for $$$
2. Learning often prevented to prevent copying/competition
3. customization usually only within controlled parameters
4. no redistribution permitted so as to enable collection by owner
iv. Free SW
1. limit’s owners control
2. use for any purpose
3. study source code
4. adapt for own use
5. redistribute copies
6. make and distribute modifications
a. notification of changes
b. copyleft
7. identifying characteristic is cluster of user permitted, not absence of price (not talking free beer here)
v. anatomy of Free SW
1. Raymond, Moody
2. one ore more programmers write sw and release It on the net
3. others use, modify extend or test
4. mechanism for communicating, identifying and incorporating additions/patches into a common version
5. volunteers with different levels of commitment and influence on testing, fixing, and extending
Institutional framework
i. Property
1. property is institutional core of market and firm-based production
a. parameters of exclusion permit charging a price and controlling output of employees.
2. public domain/open access
a. dedication to domain makes sw free
b. allows anyone to use, modify and redistribute
c. weakness: ease of defection/reappropriation by downstream actors may cause demoralization and ex ante non-participation by peers
3. copyleft
a. cluster of licensing provisions that rely on the control property rights provide to make software “free” while protecting against some defections that an open-access commons approach permits
b. distributions is under same terms as original work was licensed
c. clear notifications of changes and attribution
d. covenants run with the program
i. if you break, you lose the license
e. gpl and open source definition do not discriminate between commercial and non-commercial sw
f. Major current questions: what counts as “modification”
4. Ads vs disads of copyleft v public domain
a. Reduces incentives to adopt a proprietary strategy
b. Reduces opportunities for “defection”
c. Retains the integrity of contributions as part of the peer-review process.
Commons-based peer-production
Peer production
i. Various sized collections of individuals
ii. Effectively produce information goods
iii. Without price signals or managerial commands
Human parallel to distributed computing?
i. Various @home projects
ii. Gnutella, freenet
Examples
i. Academic research
1. we select our projects
2. build on what others have done
3. distribute as widely as possible
ii. wikipedia
iii. mars crater analysis
iv. http://slashdot.org
v. google
1. they build web sites by figuring out what people link to…
vi. distribution
1. gnutella
2. distributed proofreading
vii.
Economic analysis
Motivation
i. OSS economics literature maps the diverse appropriation mechanisms
1. intrinsic (make me better off)
a. hedonic
b. community ethics
2. extrinsic
a. supply-side – human capital, reputation
b. demand-side – service contracts, widgets
ii. diverse motivations
1. care for different things other than money
iii. initial implications
1. where component contributions are too fine grained to transact around, peer production dominates (too small to do for money, great to do for greater good)
2. discussion made along lines of formula
iv. peer production limited not by total cost or complexity of project, but by
1. modularity (how man can participate)
2. granularity (min investment necessary)
3. cost of integration
v. value in economic terms
1. human capital difficult to specify/define (can’t price it)
2. by comparison to firms and markets peer-production has
a. information gains
i. human capital highly variable
1. time, task, mood, context, raw information materials. Project
ii. difficult to specify completely for either market or hierarchy control
iii. in peer-production agents self-identity for, and self-define tasks
b. allocation gains
i. best agent on optimum resources
vi. Commons problems
1. different kinds of commons have different solutions
2. information only a provisioning problem, not an allocation problem
3. primary concerns
a. defection through unilateral appropriate undermines intrinsic and extrinsic motivations
b. poor judgment of participants
c. providing the integration function
4. solutions
a. formal rules
b. tech like slash
c. moral/social norms
d. redundancy or avging out
e. iterative peer production of integration
f. reintroduction of market and hierarchy with low cost and no residual appropariate
Business models
Surfers
i. Cost reduction and improved quality
1. google
2. live 365
3. ibm, hp widgets
ii. translation into the price system
1. services/customization/massification
toolmakers
i. sourceforge, OSDN
ii. massive multiplayer games
thematic analysis
diverse motivations with complex relationships to money
peer-production, not OSS
anti-defection mechanisms
i. formal rules, tech restraints, social norms
business opportunities
i. integration without residual appropriation
ii. surfers and toolmakers
Code Debate
Can free sw exist with proprietary sw
Jason Maslou? (Shared resource mgr)
Larry Lessig
On the surface there is coexistence in the eco-system –tension is whether free sw will survive
You gots
Free -- open – shared – proprietary
So lessig is taking free and open vs proprietary
Advantages
Zero price
Good code
Teaching others
Strategic behavior
But destroy IP?
Open
Free
Shared
Proprietary
Free
Y
Y
M
Y
Good
Y
Y
Y
Y
Teach
All
all
Some
None
Strategy
Unlikely
Never
Y,hard
Destroy
N
?
?
N
Both free sw and proprietary impose a condition on a user (copyleft)
Proprietary sw imposes condition of no right to modify
Microsoft has acknowledged open/free is competitive threat
From microsoft’s perspective opposing open is good
From govt’s perspective – increased interesting in requirements for open software for obvious reasons
Maintaining a rich ecology keeps options open, assures competition
Microsoft response – government should not support the GPL part of the ecosystem
Bks Microsoft Answer
primary stimulus for innovation is IP protection Not only stimulus
private sector foreclosed Not all (e.g. IBM)
commercial application foreclosed (only MS)
Jason
(first he gives larry a dark cape and light sword)
There is a lot of attention drawn to MS when you talk of windows v linux. Or other product level discussion.
Not talking about that. Shared source is thinking about issues surrounding Industry, IP, economics, policy…
Cycle of innovation within software community including govt research, academic, industry, customers with shared knowledge
TCP/IP came out of this cycle. I disagree with Larry that internet came about bks of tcp/ip and architecture – in truth it is because of production of cheap hw and communication techniques
There is no right way to create sw
Combination of models has been critical factor for past 30 years
The bulk of open source sw is being commercialized. That is where ballmer’s comments are focused.
There is an industry move to the middle. IBM does proprietary and non-proprietary (Notes vs. Linux) and other examples
Did model of software investment – shows that innovation as a competitive differentiation shrinks when shifting to open source.
Why is source code important in debate
Transparencey increases trust
- ~60% say source access is critical for view/modify
-
Can free sw exist with proprietary sw
Jason Maslou? (Shared resource mgr)
Larry Lessig
On the surface there is coexistence in the eco-system –tension is whether free sw will survive
You gots
Free -- open – shared – proprietary
So lessig is taking free and open vs proprietary
Advantages
Zero price
Good code
Teaching others
Strategic behavior
But destroy IP?
Open
Free
Shared
Proprietary
Free
Y
Y
M
Y
Good
Y
Y
Y
Y
Teach
All
all
Some
None
Strategy
Unlikely
Never
Y,hard
Destroy
N
?
?
N
Both free sw and proprietary impose a condition on a user (copyleft)
Proprietary sw imposes condition of no right to modify
Microsoft has acknowledged open/free is competitive threat
From microsoft’s perspective opposing open is good
From govt’s perspective – increased interesting in requirements for open software for obvious reasons
Maintaining a rich ecology keeps options open, assures competition
Microsoft response – government should not support the GPL part of the ecosystem
Bks Microsoft Answer
primary stimulus for innovation is IP protection Not only stimulus
private sector foreclosed Not all (e.g. IBM)
commercial application foreclosed (only MS)
Jason
(first he gives larry a dark cape and light sword)
There is a lot of attention drawn to MS when you talk of windows v linux. Or other product level discussion.
Not talking about that. Shared source is thinking about issues surrounding Industry, IP, economics, policy…
Cycle of innovation within software community including govt research, academic, industry, customers with shared knowledge
TCP/IP came out of this cycle. I disagree with Larry that internet came about bks of tcp/ip and architecture – in truth it is because of production of cheap hw and communication techniques
There is no right way to create sw
Combination of models has been critical factor for past 30 years
The bulk of open source sw is being commercialized. That is where ballmer’s comments are focused.
There is an industry move to the middle. IBM does proprietary and non-proprietary (Notes vs. Linux) and other examples
Did model of software investment – shows that innovation as a competitive differentiation shrinks when shifting to open source.
Why is source code important in debate
Transparencey increases trust
- ~60% say source access is critical for view/modify
-
Computer software – proprietary legal strategies
Fisher
Various legal regimes available to software developer
Trade Secret
Copyright
Patent
Contract
I do not believe software is improperly protected by patent. I don’t think the differentiation is so clean (patent vs copyright). But, patent law must be properly constructed. Contract law is much worse, as it has been construed.
Trade Secret
Trade Secret is state law and thus varies but not a lot.
Provides protection to secrets – things that fit include- info to contents (secret formula), process (effervescent power), has been extended to ephemeral events, particularly negative ones. Includes computer programs.
Requirements for protection
Information must have been “secret” initially – some courts add novelty requirement
plaintiff must have made reasonable efforts to keep it secret
the information must be commercially valuable
Requirements for liability
Breach of confidence
Confidential relationship
Reliance on commercial custom and tacit understandings
secret was discovered through improper means
e.g. overflights, fraudulent misrepresentations; phone taps
reverse engineering is permissible
Copyright law
Entitlements
Reproduction
Derivative works
First distribution
Public performance
Public display
exceptions
Fair use
Merger (ideas may not be protected – only expressions of it)
Essential or archival copying
Recounts Apple v. Franklin (CA3 1983)
aid had to copy Apple OS in order to run apple compatible sw
Trips agreement extensds
Article 10 – Source and object are protected by copyright
Other articles make more explicit terms and exceptions
Has been suggested American fair use agreement violates article 13
Dimensions of diminishing copyright protection
Q– does TRIPS require every country to honor every court decision?
A – imposes minimum levels of protection – not a single copyright law (still other stds country by country)
Why is it declining?
Copying non-literal features of programs (read a book, write another mimicking a book) How similar?
Whelan (1986 CA3) – improvement of existing work too close
Altai – really creates expansive 3 part test
i. Abstraction (map features comparison)
ii. Filtration (remove from map unprotectable functions)
iii. Comparison (what is left) if parallelism is tight – infringement
iv. Filtration process makes it harder for copyright owners to prevail
reverse engineering for the purpose of interoperability
Sega (CA9 1992) – accolade reverse engineered code to get games to run – sega brought suit – excused as fair use – done for interoperability
menu hierarchies
mimic commands – aka Lotus/MS/borland
ineffective enforcement
Analyzed BSA numbers – he found correlation to low piracy numbers and high Gore votes
Patent
Cases asserting patents in sw
Gottschalk (1972) – can’t patent algorithm
Parker (1978) – same thing
Diamond (1981) – if embedded in a machine or chemical process whole things is protected
Federal circuit relaxation of the test
i. Step by step
US Patent activity (2001)
12,000 sw patents
trend is up
Doctrines by tech sector
Utility – easiest
Novelty – higher hurdle
Obviousness – higher (sw is raised)
Disclosure not as high (sw is lowered)
Contract
shrink wrap license
prohibits fair use, reverse engineering etc.
click on licenses
Copyright law should win over contract – but, interpretations are muddled.
So, contract law is the really bad animal.
The real hazard is here.
Fisher
Various legal regimes available to software developer
Trade Secret
Copyright
Patent
Contract
I do not believe software is improperly protected by patent. I don’t think the differentiation is so clean (patent vs copyright). But, patent law must be properly constructed. Contract law is much worse, as it has been construed.
Trade Secret
Trade Secret is state law and thus varies but not a lot.
Provides protection to secrets – things that fit include- info to contents (secret formula), process (effervescent power), has been extended to ephemeral events, particularly negative ones. Includes computer programs.
Requirements for protection
Information must have been “secret” initially – some courts add novelty requirement
plaintiff must have made reasonable efforts to keep it secret
the information must be commercially valuable
Requirements for liability
Breach of confidence
Confidential relationship
Reliance on commercial custom and tacit understandings
secret was discovered through improper means
e.g. overflights, fraudulent misrepresentations; phone taps
reverse engineering is permissible
Copyright law
Entitlements
Reproduction
Derivative works
First distribution
Public performance
Public display
exceptions
Fair use
Merger (ideas may not be protected – only expressions of it)
Essential or archival copying
Recounts Apple v. Franklin (CA3 1983)
aid had to copy Apple OS in order to run apple compatible sw
Trips agreement extensds
Article 10 – Source and object are protected by copyright
Other articles make more explicit terms and exceptions
Has been suggested American fair use agreement violates article 13
Dimensions of diminishing copyright protection
Q– does TRIPS require every country to honor every court decision?
A – imposes minimum levels of protection – not a single copyright law (still other stds country by country)
Why is it declining?
Copying non-literal features of programs (read a book, write another mimicking a book) How similar?
Whelan (1986 CA3) – improvement of existing work too close
Altai – really creates expansive 3 part test
i. Abstraction (map features comparison)
ii. Filtration (remove from map unprotectable functions)
iii. Comparison (what is left) if parallelism is tight – infringement
iv. Filtration process makes it harder for copyright owners to prevail
reverse engineering for the purpose of interoperability
Sega (CA9 1992) – accolade reverse engineered code to get games to run – sega brought suit – excused as fair use – done for interoperability
menu hierarchies
mimic commands – aka Lotus/MS/borland
ineffective enforcement
Analyzed BSA numbers – he found correlation to low piracy numbers and high Gore votes
Patent
Cases asserting patents in sw
Gottschalk (1972) – can’t patent algorithm
Parker (1978) – same thing
Diamond (1981) – if embedded in a machine or chemical process whole things is protected
Federal circuit relaxation of the test
i. Step by step
US Patent activity (2001)
12,000 sw patents
trend is up
Doctrines by tech sector
Utility – easiest
Novelty – higher hurdle
Obviousness – higher (sw is raised)
Disclosure not as high (sw is lowered)
Contract
shrink wrap license
prohibits fair use, reverse engineering etc.
click on licenses
Copyright law should win over contract – but, interpretations are muddled.
So, contract law is the really bad animal.
The real hazard is here.
Privacy
Jonathan Zittrain
Mollie Van Houweling
Lessig
It is great for you to show up. But you will be rewarded appropriately.
We will entertain as many thoughts as possible today.
Zittrain
Mollie also worked at ICANN longer than she probably wanted to.
Privacy is a topic that everyone feels strongly about – but when you get into it, it turns into mush.
So, while it is interesting, we don’t have the answers, and thus it isn’t as fun to teach about.
Categories of things we don’t like teaching about
Specific examples of things we don’t like teaching about
Categories of Privacy
collection of personal data
use of personal data
personal environment
vital personal decision
Control over…
Police
Finance
People
Collection of personal data
Carnivore; kyllo
Cookies, rfids
Snooping
Use of personal data
DIF/TIA
Price and service discrimination
Identity theft
Personal environment
Humiliating searches
Spam
Spam, cyberstalking
Vital personal decisions
Abortion + birth control
Obtaining a loan
Nuremberg files
Carnivore – discussion of technology. Taking government to task for seeing data it may not intentionally want to see – is troublesome
Kyollo – thermal imaging case – court ruled expectation of privacy was breached when police used thermal imaging camera and saw marijuana and then got a search warrant
But the baseline for regulatable search is shifting as technology shifts.
Z
Does it make sense to say we had an equilibrium before the internet?
How easy is it for the cop to intervene?
Kyollo says once imaging is available (and expectations of privacy are lowered) then it will be allright
Cookies
Basic tech discussion
Looks at ABOUT.COM for a cookie demonstration
Privacy policy… of web sites – opt in
Mollie
“Americans will sell their privacy, bit by bit, for frequent flier miles.”
Z
IRS established DIF formula (regression analysis to spot tax cheats)
An individual FIOAd the DIF formula (govt invoked a National Security defense)
Chilling effect of TIA, DIF – what does it mean?
[there is a raging discussion on the right to privacy on how government use of technology – focusing on accountability, abuse – interesting that the folks from Europe are making the strongest case for such a right. Especially since certain 3 letter agencies have been snooping on communications and other forms of data in Europe for the last 50 years!]
Placing tracking tech in razor blade packages – you could inventory the contents of a house with such technology.
Audience
Conversation shifting to personal information treated as property.
Discussion on The Nuremberg Files – web site
[…]
Jonathan Zittrain
Mollie Van Houweling
Lessig
It is great for you to show up. But you will be rewarded appropriately.
We will entertain as many thoughts as possible today.
Zittrain
Mollie also worked at ICANN longer than she probably wanted to.
Privacy is a topic that everyone feels strongly about – but when you get into it, it turns into mush.
So, while it is interesting, we don’t have the answers, and thus it isn’t as fun to teach about.
Categories of things we don’t like teaching about
Specific examples of things we don’t like teaching about
Categories of Privacy
collection of personal data
use of personal data
personal environment
vital personal decision
Control over…
Police
Finance
People
Collection of personal data
Carnivore; kyllo
Cookies, rfids
Snooping
Use of personal data
DIF/TIA
Price and service discrimination
Identity theft
Personal environment
Humiliating searches
Spam
Spam, cyberstalking
Vital personal decisions
Abortion + birth control
Obtaining a loan
Nuremberg files
Carnivore – discussion of technology. Taking government to task for seeing data it may not intentionally want to see – is troublesome
Kyollo – thermal imaging case – court ruled expectation of privacy was breached when police used thermal imaging camera and saw marijuana and then got a search warrant
But the baseline for regulatable search is shifting as technology shifts.
Z
Does it make sense to say we had an equilibrium before the internet?
How easy is it for the cop to intervene?
Kyollo says once imaging is available (and expectations of privacy are lowered) then it will be allright
Cookies
Basic tech discussion
Looks at ABOUT.COM for a cookie demonstration
Privacy policy… of web sites – opt in
Mollie
“Americans will sell their privacy, bit by bit, for frequent flier miles.”
Z
IRS established DIF formula (regression analysis to spot tax cheats)
An individual FIOAd the DIF formula (govt invoked a National Security defense)
Chilling effect of TIA, DIF – what does it mean?
[there is a raging discussion on the right to privacy on how government use of technology – focusing on accountability, abuse – interesting that the folks from Europe are making the strongest case for such a right. Especially since certain 3 letter agencies have been snooping on communications and other forms of data in Europe for the last 50 years!]
Placing tracking tech in razor blade packages – you could inventory the contents of a house with such technology.
Audience
Conversation shifting to personal information treated as property.
Discussion on The Nuremberg Files – web site
[…]
Freedom and Political Morality
Benkler
Regulation of speech
· Law
o Affects speech through formal censorship
§ Smut
· Lady Chaterly’s lover
· Technology
o Brown paper covers
o Radio cleaned by law
o CIPA
§ Cyberporn
§ Law requires verification of age via credit card – increase oppty for social surveillance which ties to social norms
· Social Norms
o Shame of asking for copy kept behind counter
· Market
o Pervasive violence but prudish on sex/nudity
…
Zittrain
Demos filtering at Saudi site
And AG in Pennsylvania
Get link to his empirical analysis of filtering in china
…
[will have to refer to others here – and consult my recorder}
…
Political Democratic Discourse
Political economy media studies critique of commercial and concentrated media
Berlusconi effect
Baywatch effect
Positive political economy feedbacks
Campaign finance
[hmm.. I’m paying attention now – course the last time I read political economy papers – I got a headache.]
How are these effected by the internet when it is open?
….
Possibility and Challenge
150 year trend towards industrialized information production
computer networks invert the organization of communications facilities
open the possibility of
radical decentralization (hmm.. Bowling Alone?)
substantial increase in role of non-market production
freedom from both government and private censorship (as if we can ever escape social norms)
will we move to an internet model or will we stay with a glorified broadcast model?
Building the commons
A core common infrastructure
Physical layer – funded by public
Logical layer
Secure a free and open logical layer
Reverse DMCA and UCIT
Content layer
Resist the enclosure movement and reclaim the public domain
Intellectual infrastructure
Non-market production (ok, I would rather see more market)
Institutional infrastructure
Social practice
Politics of Freedom in the Commons
Benkler
Regulation of speech
· Law
o Affects speech through formal censorship
§ Smut
· Lady Chaterly’s lover
· Technology
o Brown paper covers
o Radio cleaned by law
o CIPA
§ Cyberporn
§ Law requires verification of age via credit card – increase oppty for social surveillance which ties to social norms
· Social Norms
o Shame of asking for copy kept behind counter
· Market
o Pervasive violence but prudish on sex/nudity
…
Zittrain
Demos filtering at Saudi site
And AG in Pennsylvania
Get link to his empirical analysis of filtering in china
…
[will have to refer to others here – and consult my recorder}
…
Political Democratic Discourse
Political economy media studies critique of commercial and concentrated media
Berlusconi effect
Baywatch effect
Positive political economy feedbacks
Campaign finance
[hmm.. I’m paying attention now – course the last time I read political economy papers – I got a headache.]
How are these effected by the internet when it is open?
….
Possibility and Challenge
150 year trend towards industrialized information production
computer networks invert the organization of communications facilities
open the possibility of
radical decentralization (hmm.. Bowling Alone?)
substantial increase in role of non-market production
freedom from both government and private censorship (as if we can ever escape social norms)
will we move to an internet model or will we stay with a glorified broadcast model?
Building the commons
A core common infrastructure
Physical layer – funded by public
Logical layer
Secure a free and open logical layer
Reverse DMCA and UCIT
Content layer
Resist the enclosure movement and reclaim the public domain
Intellectual infrastructure
Non-market production (ok, I would rather see more market)
Institutional infrastructure
Social practice
Politics of Freedom in the Commons
ILAW - Wrap Up
Nesson
Take experience of week in put in self-reflective terms to crystallize a question. I have found myself in slightly uncomfortable position – I was to the left of Fisher – now, I am not so. So, faculty members think in terms of question for the others.
To Terry Fisher: would we like to see a digital music world in which people buy their music through iTunes an like delivery services.
Would Terry say no? bks his system is better ? Or, if yes – will an iTune like model thrive if people can get music for free?
The answer will depend upon the split of the market between customers as legitimate consumers and those that choose to not pay.
Will a crash of the existing copyright system lead to change in the copyright system or change in the net?
Do we want to take a chance of finding out?
So, Terry , that is my question to you
Fisher
Some minor changes in law could curtail the illegitimate activity – would be lot better than what we have. Music would be cheaper more widely available.
1. Retain current structure of music industry and focus on
2. (gonna have to listen to the recording and figure this out)
Zoned Internet (cut up for enforcement) – or global phenom?
Jonathan
To imagine cutting it up into cantons seems antithetical. On other hand, from a lawyer’s point of view it sounds like that is what the doctor has ordered. But I think majority of stuff on the net is speech and therefore deserves all the protection it can receive.
My question to Larry : What’s the right political process through which to make decisions about the kind of internet we collectively want?
Lessig
I think it is harmful to imagine these conversations in one large place or being broadcast – (talking of convention) – it will happen when 10 million people convene on the net to discuss the idea and experience what it is to come to a conclusion with someone else.
The politics looks like another 5 years of increasing bottom up conversation of these issues – which would be an amazing change. It would be an amazing change returning to what a democracy truly looks like.
Question
Database protection is big in Europe. Could you comment (Benkler) on two laws in Congress?
Benkler
Mid-90’s EU passes directive. US 5 years before that under Sup Ct decision finds that raw facts are not capable of being protected by copyright. Have been failing at Congress because there are players that benefit without such an act. (hmmm… wonder if he would be interested in the GECA activity on this matter at the state level?)
We haven’t seen the European industry flourish – or US shrink. It is not be good idea… I do not think it is as close to being passed as it was three years ago.
The legislation is part of the enclosure movement. The need for stronger property rights is a fallacy.
Question
We are forcing different groups to ignore the law (sharing music, other countries violating drugs, patents) – and this is not stopping the behavior thus eroding belief in the law. Would you rather have them stealing your software? (I stepped out, check the recording)
….
Question
How do you relate semiotic democracy to political mobilization?
Benkler
There are three questions to your questions
1. Digital Divide – when necessary condition to capture benefits requires capital expenditure does that exclude poor users?
2. Does internetworking in decentralized mode help political mobilization across geographical areas? Easy – look at protests in seattle – march against iraq war -- so it is incredibly empowering to communities of political interest which is separated by geography (assuming 1 is answered)
3. With regard to digital divide – combination of economic technology transfer and capital on investment in ict’s and including mechanism for pooling resources (i.e. libraries and kiosks)
4. Do we fragment common identity by adopting this decentralized model? We already have destabilization of old community lines – the recreation of communities of interest that transcend these old boundaries –
Question
If media is so powerful, why not use it to get the story out?
You can’t explain it in 10 seconds. Mainstream media won’t spend that much time to gain the understanding.
It may also be the way we dress?
What were your interests that led you in to internet law?
Jonathan: Internet brought me into law rather than the other way around. It was being 12 moderating a forum on compuserve. Being able to exchange words without people worrying about how old I was – sort of brought me into it.
Larry: Juliane Lebell “Rape of Cyberspace” – “I know that these are only words “ people didn’t understand their own politics. Teaching cyberspace I could trick the students to think about what they thought.
Benkler: I was focused more on property rules and their relationship to freedom and I completely by chance someone asking for money writing an email on internet law. I decided I should focus on things that were coming into being as I could actually affect it.
Fisher: interested in property rights a long time bks it was a subject that dealt with power. Which brought me to intellectual property law… the most notorious locus brought me into the internet arena.
Nesson: Took course on Univac I in 1958 – nothing really happened until Zittrain showed up in a class of mine. I happened to have a grant from a company that we spent on Mac quattras (?) did digital projects with anetwork – Jonathan madeit all work – I got into it for the potential for teaching.
How much do people think the code, the architecture, etc of the internet a US centric thing? Whose gonna run with these ideas?
Larry: we are being governed by it….
[….]
Is Marxism alive on the net? Hmmm…. The language does remind one of socialist economics.
Benkler: Libertarian approach may be best… and then it may be best answered in social engineering terms rather than law or agency…
What’s the appropriate role of the government?
Fisher: I agree with Yochai that the sensible approach is a pragmatic one. It is mistake to see copyright as a natural extension of market – as it is a system representing massive intervention of government power… into how people behave.
…
Is Internet law a field or passing phase?
It is uniquely powerful in its potential.
Benkler: Not convinced that is an appropriate question…
Larry: Close
Nesson
Take experience of week in put in self-reflective terms to crystallize a question. I have found myself in slightly uncomfortable position – I was to the left of Fisher – now, I am not so. So, faculty members think in terms of question for the others.
To Terry Fisher: would we like to see a digital music world in which people buy their music through iTunes an like delivery services.
Would Terry say no? bks his system is better ? Or, if yes – will an iTune like model thrive if people can get music for free?
The answer will depend upon the split of the market between customers as legitimate consumers and those that choose to not pay.
Will a crash of the existing copyright system lead to change in the copyright system or change in the net?
Do we want to take a chance of finding out?
So, Terry , that is my question to you
Fisher
Some minor changes in law could curtail the illegitimate activity – would be lot better than what we have. Music would be cheaper more widely available.
1. Retain current structure of music industry and focus on
2. (gonna have to listen to the recording and figure this out)
Zoned Internet (cut up for enforcement) – or global phenom?
Jonathan
To imagine cutting it up into cantons seems antithetical. On other hand, from a lawyer’s point of view it sounds like that is what the doctor has ordered. But I think majority of stuff on the net is speech and therefore deserves all the protection it can receive.
My question to Larry : What’s the right political process through which to make decisions about the kind of internet we collectively want?
Lessig
I think it is harmful to imagine these conversations in one large place or being broadcast – (talking of convention) – it will happen when 10 million people convene on the net to discuss the idea and experience what it is to come to a conclusion with someone else.
The politics looks like another 5 years of increasing bottom up conversation of these issues – which would be an amazing change. It would be an amazing change returning to what a democracy truly looks like.
Question
Database protection is big in Europe. Could you comment (Benkler) on two laws in Congress?
Benkler
Mid-90’s EU passes directive. US 5 years before that under Sup Ct decision finds that raw facts are not capable of being protected by copyright. Have been failing at Congress because there are players that benefit without such an act. (hmmm… wonder if he would be interested in the GECA activity on this matter at the state level?)
We haven’t seen the European industry flourish – or US shrink. It is not be good idea… I do not think it is as close to being passed as it was three years ago.
The legislation is part of the enclosure movement. The need for stronger property rights is a fallacy.
Question
We are forcing different groups to ignore the law (sharing music, other countries violating drugs, patents) – and this is not stopping the behavior thus eroding belief in the law. Would you rather have them stealing your software? (I stepped out, check the recording)
….
Question
How do you relate semiotic democracy to political mobilization?
Benkler
There are three questions to your questions
1. Digital Divide – when necessary condition to capture benefits requires capital expenditure does that exclude poor users?
2. Does internetworking in decentralized mode help political mobilization across geographical areas? Easy – look at protests in seattle – march against iraq war -- so it is incredibly empowering to communities of political interest which is separated by geography (assuming 1 is answered)
3. With regard to digital divide – combination of economic technology transfer and capital on investment in ict’s and including mechanism for pooling resources (i.e. libraries and kiosks)
4. Do we fragment common identity by adopting this decentralized model? We already have destabilization of old community lines – the recreation of communities of interest that transcend these old boundaries –
Question
If media is so powerful, why not use it to get the story out?
You can’t explain it in 10 seconds. Mainstream media won’t spend that much time to gain the understanding.
It may also be the way we dress?
What were your interests that led you in to internet law?
Jonathan: Internet brought me into law rather than the other way around. It was being 12 moderating a forum on compuserve. Being able to exchange words without people worrying about how old I was – sort of brought me into it.
Larry: Juliane Lebell “Rape of Cyberspace” – “I know that these are only words “ people didn’t understand their own politics. Teaching cyberspace I could trick the students to think about what they thought.
Benkler: I was focused more on property rules and their relationship to freedom and I completely by chance someone asking for money writing an email on internet law. I decided I should focus on things that were coming into being as I could actually affect it.
Fisher: interested in property rights a long time bks it was a subject that dealt with power. Which brought me to intellectual property law… the most notorious locus brought me into the internet arena.
Nesson: Took course on Univac I in 1958 – nothing really happened until Zittrain showed up in a class of mine. I happened to have a grant from a company that we spent on Mac quattras (?) did digital projects with anetwork – Jonathan madeit all work – I got into it for the potential for teaching.
How much do people think the code, the architecture, etc of the internet a US centric thing? Whose gonna run with these ideas?
Larry: we are being governed by it….
[….]
Is Marxism alive on the net? Hmmm…. The language does remind one of socialist economics.
Benkler: Libertarian approach may be best… and then it may be best answered in social engineering terms rather than law or agency…
What’s the appropriate role of the government?
Fisher: I agree with Yochai that the sensible approach is a pragmatic one. It is mistake to see copyright as a natural extension of market – as it is a system representing massive intervention of government power… into how people behave.
…
Is Internet law a field or passing phase?
It is uniquely powerful in its potential.
Benkler: Not convinced that is an appropriate question…
Larry: Close
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- Jim Flowers: Internet Law
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- Category: Flowers
- Last update: 29 Jul 2009
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