Patrick,

The most odorous thing about Gary Shapiro's letter was that it listed copyright infringement suits against different CE/IT companies as proof that copyright holders wish to stifle innovation.

If filing lawsuits to stop the distribution and sale of CE/IT products is tantamount to stifling innovation, CEA members themselves would have to be classified as serial innovation killers. A simple Google search reveals hundreds of patent lawsuit brought by CEA members against one another. (TiVo vs. Echostar; Agere Systems v. Sony; etc)

Are such patent infringement suits proof that CEA members are out to stifle innovation, or is it only wrong to sue to protect copyrights, but fine to sue to protect patents?

Mr. French, you've put my thoughts into words. I also considered CEA's hypocrisy regarding different forms of IPRs, here:

http://weblog.ipcentral.info/archives/2006/11/common_basis_fo.html

"he tries to paint a world where only unauthorized use that leads to profit is bad. . . but he knows very well that use that doesn't involve profit can also be infringment."

Patrick, just to clarify, what the law defines as "infringement" doesn't necessarily define what is morally "bad." That depends on one's opinion of the law. Do you believe that any unauthorized use of a copyrighted work that has the potential to be monetized as a business model should be infringing? In other words, if you invent a technology that allows you to collect a fee whenever I loan a book that I own to a friend, and I loan one of your books, which I bought, without paying, then (assuming I signed no contract with you) have I infringed your rights?

Also, I'm curious, when did the primary justification for DRM switch from "preventing infringement" to "enabling price discrimination"?

Mr. Gordan, you talk about unauthorized use of copyrighted works, but then your example does not contain a scenario of unauthorized use. The point you make about unauthorized use being moral is interesting, but I'd like to see a more clear example.

As far as justification for DRM (and the DMCA), see the Congressional record: "[A]n increasing number of intellectual property works are being distributed using a “client-server” model, where the work is effectively “borrowed” by the user (e.g., infrequent users of expensive software purchase a certain number of uses, or viewers watch a movie on a pay-per-view basis). To operate in this new environment, content providers will need both the technology to make new uses possible and the legal framework to ensure they can protect their work from piracy." H.R. REP. NO. 105-551, pt. 2, at 23 (1998).

The difference between DRM (and the DMCA) as justified along the lines of facillitating business models rather than stopping piracy, is that piracy needs only to be deterred, or protected against, in order for business models to arise. To argue against DRM and the DMCA because they do not stop piracy simply is not very observant, and is pretty much a weak strawman argument.

It sounds like John Gordon may still be stuck back in the 2001 era of online debates, which were marked by that good old goofy chestnut: "So how is Napster any different from the public library, hmmmm??"

That one's been pretty widely laid to rest, mercifully, but you still occasionally see it launched by the latest 14-year-old to have learned he's supposed to hate the RIAA.*

(*I certainly do not mean to imply that Mr. Gordon is 14.)

Patrick, as always your coverage of the IP issues is robust and interesting. In a rare departure, you chose to lessen the value of this otherwise interesting post with a personal attack on one of CEA’s employees. It is your suggestion that William Bentgen’s email to you providing a copy of Gary’s letter to Barry Meyer was “misleading” and “full of misrepresentations” and was part of a “blanket PR campaign” that compels me to comment.

For the record, I asked William to email Gary’s letter to you personally, because you had blogged on Meyer’s speech, and I thought you would appreciate receiving our response to it. William also sent Gary’s letter to a small handful of other bloggers, each of whom had covered the Meyer speech. The fact that you blogged on Gary’s letter suggests that you did appreciate receiving it, which leaves me to wonder why you would attack the person who sent it.

You suggest that William’s email to you is “misleading” and “full of misrepresentations” because (a) William identified the location of Meyer’s speech as “Capitol Hill” rather than the Hotel Monaco, and (b) he states that Meyer called for copyright protection laws without having actually attended the speech. As to (a), only those of us inside the Beltway would quibble over identifying a hotel located 7 blocks from the Capitol as being on the Hill, a minor point that hardly rises to the level of the important issues under discussion here. As to (b), as Gary pointed out in his letter to Meyer, CEA was indeed not invited to Meyer’s speech, so we were in fact not there. But we were provided a copy of the full text of Meyer’s speech, and so your supposition that we were unaware of its content is incorrect, and Meyer did indeed speak at length about laws protecting content owners from new digital devices. I would note, by way of comparison, that in your February 7 blog entry on Meyer’s speech, you spent a good deal of time criticizing Gary’s speech at the 2007 International CES as containing the “usual generalizations and misleading statements.” Had you detailed any of those alleged misleading statements, it would hardly have been fair for us to dismiss your criticism based on whether you attended Gary’s speech in Las Vegas or not (and indeed you may have attended, as I know we were pleased to welcome you as our guest at the International CES this year). Gary’s speech is available on our web site, so questioning whether you physically attended the speech would be no more relevant a response from us than if we said that you named the wrong hotel ballroom in which Gary spoke.

William did not respond to your email because your statement that he misidentified the location of the speech, and your suggestion that he was not familiar with the text of the speech, were unfair and not relevant to your coverage of the issues at hand. Patrick, I’ve known you for a long time, as both an excellent reporter and a passionate scholar. Although I am compelled to respond to your personal attack on one of my employees, it is your cogent and forceful advocacy on behalf of the principles in which you believe and the PFF supporters you represent that will be the real legacy of your work.

Jason Oxman
Vice President – Communications
CEA

Jason,

Thanks for your comments, I respect you and appreciate your comments. I have, I'm afraid, a clarification to make of your post, but first this:

My apologies at what you feel was a personal attack on a member of your staff. I admire you for coming to his defense. We will have to agree to disagree on the extent to which his email was misleading. I do wish he had responded to me when I emailed him; I think you'd agree that while I asserted my viewpoint in my email to him, I was respectful and did not descend to name-calling. It is of course his choice not to respond. Thank you for having him send me the letter.

I must compliment you on your job of getting that letter out. I first received it from Mr. Bentgen, but in the next several days at least a half-dozen others emailed it to me along the lines of, "Have you seen this?" Thus the opening line of my blog: "I can resist no longer." Jeff Joseph was a master at getting Gary out there, and you are continuing in that tradition.

One clarification I must make in your post. You state this: "...it is your cogent and forceful advocacy on behalf of the principles in which you believe and the PFF supporters you represent that will be the real legacy of your work." Thank you for that. I must remind you of something you know, however. PFF is a think tank of independent scholars. PFF as an institution takes no positions, and it is certainly not a trade association. As such, I "represent" no "supporters." PFF has many, many supporters. I suspect some like my IP positions, and some (Google, perhaps) likely do not. I do believe strongly in IP, it has been a key part of my professional life and those of many close to me. I have some more thoughts on that but I think I'll put them in a separate blog post. For now, please remember PFF doesn't speak for any of its supporters on any issue; they are more than capable of speaking for themselves.

Patrick,

While your organization may be independent, your views are so closely aligned with with RIAA/MPAA that it would not surprise me that you get your talking points from them as well.

Brian, agreement on some issues will happen. It is a serious accusation though to imply that PFF gets talking points from the RIAA/MPAA. That means 1) you're not reading the arguments, 2) not considering the supporting academic literature or industry studies cited in those arguments, 3) not seeing that IPcentral takes consistent positions across policy areas to highlight the importance of IPRs irregardless of the firms affected.

That said, note how PFF's support for IPRs is conditioned: raising raising patenting standards, underscoring the importance of reverse engineering and interoperability, clarifying case law that if misinterpretd may curb innovating activity. These are hardly things that would arise from taking "talking points," as you implied it to mean.

"This is a common argument by Gary, and is part of a new coalition I have criticized. First, he tries to paint a world where only unauthorized use that leads to profit is bad."

No. Again, you are mis characterizing what those who do not agree with your ideas on strong IP protection. Can anyone at PFF actually engage in adebate, without constructing a straw horse?

What is bad (actually unacceptable) is content producers trying to run over the First Amendment with the DMCA and other government subsidized means of controlling what users do with their computers, even when such technologies have substantial non-infringing uses.

If corporations would accept the bill of rights, I would n't have such problems with what they are trying to do.