Professor Joel Reidenberg has a new article on technological challenges to intellectual property- The Rule of Intellectual Property Law in the Internet Economy, Houston Law Review, Vol. 44, No. 4, 2007.

The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologistdefined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law.

In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright’s anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making.

In essence, the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.

posted by Noel Le @ 9:08 AM | General

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Paul McDougall from InformationWeek reports on sluggish adoption of GPLv3.

Fearing the restrictions it places on their work, the majority of open source software developers do not plan to publish code in the next year under a controversial new license authored by the main governing body for open source and free software, according to a survey released Wednesday.

In addition, more than 40% of those surveyed said they won't ever publish their work under Version 3 of the General Public License, which was released earlier this year by the Free Software Foundation. "GPLv3 is controversial because it imposes restrictions on what you can do with programs," said John Andrews, CEO of survey taker Evans Data, in a statement.
...
GPLv3 has produced a rift in the open source community between idealists who believe all software should be free of charge and free to use, and pragmatists who want to see open source software make further inroads into commercial use.

GPLv3 embodies the former point of view in that it stipulates that companies that use software covered by the license place no restrictions on end user access to the software. That has prompted some companies, including Tivo, to indicate that they may seek alternatives to the open source software used in their products.

posted by Noel Le @ 8:48 AM | Free Culture Movement

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Thailand "negotiates" for cancer drugs.

More on India and innovation.

In India, price controls on some medicines are seen as threat to investment.

World economic freedom report for 2007 released in India: In this year’s main index, Hong Kong retains the highest rating for economic freedom, 8.9 out of 10. The other top scorers are: Singapore (8.8), New Zealand (8.5), Switzerland (8.3), Canada (8.1), United Kingdom (8.1), United States (8.1), Estonia (8.0), Australia (7.9), and Ireland (7.9). The rankings and scores of other large economies are Germany, 18 (7.6); Japan, 22 (7.5); Mexico, 44 (7.1); France, 52 (7.0); Italy, 52 (7.0); India, 69 (6.6); China, 86 (6.3); Brazil, 101 (6.0); and Russia, 112 (5.8).

Nintendo targets Korean sites for piracy.

posted by Solveig Singleton @ 8:20 AM | International

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Nick Carr's comments on CCIA's study of fair use include the following:

What the authors have done is to define the "fair-use economy" so broadly that it encompasses any business with even the most tangential relationship to the free use of copyrighted materials. Here's an example of the tortured logic by which they force-fit vast, multifaceted industries into the "fair use" category: Because "recent advances in processing speed and software functionality are being used to take advantage of the richer multi-media experience now available from the web," then the entire "computer and peripheral equipment manufacturing industry" qualifies as a "fair-use industry." As does the entire "audio & video equipment manufacturing" business. And the entire software publishing industry. And the entire telecommunications industry.

Oh dear. I think one could fairly count the Tivo, and a portion of some of the activity described above... anything involving parody, certainly.

Of course, there is a larger conceptual problem. Fair use is always fair use *of* something copyrighted... so do we add fair uses on to the value of copyright uses? There is a case to be made that the copyrighted materials--and the consequent fair use of them--would not exist in such abundance but for copyright. The logical response to that is, yes, but we wish to measure in particular the value of this particular *exception.* Fair enough, so long as one bears in mind the risk of the exception's swallowing the rule. Also, that a substantial part of the economic activity in question might well occur in similar form even without the exception, due to the growth of markets in snippets and bits and other licensed material for downstream use.

Empirical studes are funny things, aren't they?

SS

posted by Solveig Singleton @ 12:55 PM | Access: Commons, Fair Use, Orphan Works, Public Domain , Economics, Game Theory & Public Choice , Markets: Business, Investment & Innovation

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Following the EC Microsoft decision, a Free Software Foundation rep is quoted as stating to Microsoft- "You are not above the law."

I did not know the Foundation regarded the law so highly!!!

The Free Software Foundation sees GPLv3 as a social contract and a copyright license. By emphasizing community enforcement of GPLv3 as a social contract (when it may not be legally enforceable), the Foundation attempts to position itself as the law.

posted by Noel Le @ 12:42 PM | Free Culture Movement

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Don Reisinger from CNet writes on the Linux identity crisis-

If you've been following the current rift in the Linux community between Linus Torvalds and his minions squaring off against Con Kolivas and the mainstream Linux fanatics, you probably know that it's getting quite heated. You also probably know that these two entirely different ideas could create three possible paths Linux can take for the future: stay geeky and appeal to the advanced tech guru in all of us; go mainstream and leave the advanced functionality and reliable kernel behind to compete with Microsoft and Apple; or face a "civil war" that could lead to total Linux annihilation.

posted by Noel Le @ 12:06 PM | Free Culture Movement

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James DeLong released a clarifying take on Google's US antitrust actions against Microsoft.

The shortcomings of Google's position-

...what is really going on in Google's collective mind? I think it boils down to a couple of things. First, Google and Microsoft are colliding as the tech world evolves, so disrupting Microsoft's plans is its own reward. Second, Google has a dominant position in general Web search. Integrating Web search closely with desktop search would reinforce and extend this power. An effective way to accomplish this is to force Microsoft to do it in the name of "fostering competition."

The weaknesses in Google's argument are that it has nothing to do with the original Microsoft case or with the purpose of the consent order, and that it does not relate to the conditions of the market that have developed in the years since the case ended.

...the very existence of Google renders most of the Microsoft consent order unnecessary. If Google were interested in promoting a competitive desktop operating system, it could create one or it could throw its weight behind Linux. In either case, its weight includes power over Internet search. Mr. Market agrees on the relative power of the two companies, because it gives Google a price-earnings ratio of roughly 46, more than double that of Microsoft.

An ironist might call this monopoly maintenance by Google. Perhaps antitrust fans can anticipate a U.S. v. Google, in which Exhibit 1 will be the intervention brief.

posted by Noel Le @ 11:34 AM | Antitrust

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Braden Cox from ACT has some insights on the Microsoft antitrust ruling in the EU.

Today’s decision from the European Court of First Instance affirms the broad role that competition policy has in Europe. You can slug through the lengthy court opinion, but these press conference Q&A comments of Neelie Kroes are revealing. They show the true intent of the European Commission’s competition policy regulators: competition policy is about micromanaging software development and dictating market evolution.

Cox cites a quote from Nellie Kroes:

I want Microsoft’s market share to diminish to significantly less than 95%. I can’t say that it has to be precisely 50% or whatever number, but it has to be significantly less than 95. - Neelie Kroes, European Commissioner for Competition Policy

posted by Noel Le @ 1:44 PM | Antitrust

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Brian Deagon's August 6, 2007 article in Investor's Business Daily, August 6, 2007, "Technology Doomed To Failure, Some Critics Say," includes some remarks about filtering worth thinking about. The assurance of the quoted critics is convincing, but they seem to be missing a good part of the picture.

Continue reading Investor's Business Daily on Filtering . . .

posted by Solveig Singleton @ 10:11 AM | DRM & Watermarks, etc.

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Roberto Galoppini reports that GPLv3 has been approved by the OSI Board. This is not a positive step for the FOSS movement.

Consider several reasons why license standardization is important for the FOSS movement- to simplify use, modification and redistribution rights (so that techies don't have to be lawyers), and to manage IT environments where a vast proportion of inputs come from outside the firm. These bases for standardizing FOSS licenses seek to reduce legal uncertainty and transaction costs associated with FOSS. Their goal, ultimately, is to increase FOSS adoption, which GPLv3 is not unsupportive of.

GPLv3 is often regarded as a social contract by its proponents. However, by primarily basing GPLv3 enforcement on arbitrary FOSS community norms, GPLv3 weakens the FOSS movement. GPLv3 reflects the reality that with FOSS, uncertainty comes from within the FOSS community, not from intellectual property nor contract laws.

The emphasis on community enforcement in GPLv3 (which I see as a strategy to compensate for the license's questionable legal enforcement) should be particularly worrisome to commercial entities. A relatively stable environment is important for businesses to make investments and efficiently undertake economic activity. This stability is protected by our political-economy system. By setting aside this framework, and relying on community enforcement, the Free Software Foundation seeks to usurp the free market model that has generated innovation and economic growth, for the purpose of interfering with business practices it does not agree with.

What commercial entities would elect figures from the Free Software Foundation onto their boards? Well, if they sign onto the social contract known as GPLv3, the Free Software Foundation hopes they will do so accidentally.

posted by Noel Le @ 3:20 PM | Free Culture Movement

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posted by Amy Smorodin @ 9:48 AM | Patents

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posted by Solveig Singleton @ 9:42 AM | Big Tent , Books , Markets: Business, Investment & Innovation , Media: Video, Music... , Pharma

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posted by Noel Le @ 6:21 AM | DRM & Watermarks, etc. , Markets: Business, Investment & Innovation

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posted by Solveig Singleton @ 1:35 PM | DRM & Watermarks, etc.

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posted by Noel Le @ 12:30 PM | Patents

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