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04. 2.2007

There Is a Business Here Somewhere

To continue my oft-expressed admiration for satellite radio, the other day I heard on XM a full version of Sir Arthur Sullivan's 1872 Festival Te Deum.

ArkivMusic (my current go-to site because its index for classical beats Amazon hollow) failed me, as did my back-up Amazon one-click, so I queried XM VOX for a disc number. (Another reason why everyone should be subscribing to satellite radio is the speed and courtesy with which such emails are answered.)

Continue reading There Is a Business Here Somewhere . . .

posted by James DeLong @ 8:00 AM | Markets , Markets: Business, Investment & Innovation , P2P

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01.25.2007

Want to Buy a Patent?

The catalogue for the Ocean Tomo Spring 2007 patent auction is available.

posted by James DeLong @ 10:49 AM | Markets , Markets: Business, Investment & Innovation , Patents

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11.15.2006

Computer Geeks Angered by Copying of Their Creations

A copying tool for Second Life is developed for legitimate purposes via open source.
Second Life users with ill intent use the tool to copy anything in the virtual world, from clothing to cars.
Virtual retailers are angered, but there's no recourse in the virtual world.
Their only recourse, they're told by Linden Labs, is to file a DMCA complaint in the real world.
The victims of unauthorized copying complain DMCA isn't responsive enough.
Someone unconcerned with all the copying says those upset twith their stuff being ripped off are "RIAA-ish."
A news publication generally not sympathetic to copyright infringement seems to feel differently about virtual copying, with a headline "'Second Life' faces threat to its virtual economy." What, it's not an opportunity to further the public domain of Second Life?

You just cannot make this stuff up.

posted by Patrick Ross @ 10:21 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , Counterfeit , DMCA , Free Culture Movement , Markets

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11. 6.2006

Just Patent It, You'll Feel Better

The value of patents lies not only in how well they fullfil their statutory purpose of allowing means of appropriation and incentive for inventors to pursue risky R&D, but also in how they facillitate market activities critical to innovation. Example: patents enable decentralized innovation where small firms can specialize and compete with larger vertically integrated firms; and serve as exchange mechanisms in industries where the complexity of innovation demands technological diffusion via cross-licensing.

A recent paper by scholars from Rutgers and Katholieke Univ Leuven in Belgium considers the effect of patents on firms' decision making, and argues that patents help firms sustain R&D spending in times of uncertainty, compared to non-patenting firms. Andrew Toole and Dirk Czarnitzki, Patent Protection, Market Uncertainty, and R&D Investment (September 2006). Berkeley Center for Law and Technology Scholarship. The paper contributes to patent literature the insight that patents can have settling effect in high risk industries, which may support their task to incent innovating activity.

Continue reading Just Patent It, You'll Feel Better . . .

posted by Noel Le @ 8:00 AM | Academia , Markets , Patents

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11. 5.2006

A Simple "Yes" Would Do: Corporate Disclosure on the Internet

A month ago, Sun CEO Jonathan Schwartz argued in a letter to SEC Chairman Chris Cox that corporations should be able to meet their SEC-imposed disclosure requirements by posting information on company-run websites. Interested parties would know to check, or maintain RSS feeds, and the problem of selective dissemination of information that is addressed by Reg FD would be solved.

Last Friday, Cox sent his response. Fittingly, he posted it as a comment on Schwartz's blog. Not so fittingly, but typical of government work, he dodged the issue, and procrastinated. Money quote:

The Commission encourages the use of websites as a source of information to the market and investors, and we welcome your offer to further discuss with us your views in this area. Assuming that the Commission were to embrace your suggestion that the "widespread dissemination" requirement of Regulation FD can be satisfied through web disclosure, among the questions that would need to be addressed is whether there exist effective means to guarantee that a corporation uses its website in ways that assure broad non-exclusionary access, and the extent to which a determination that particular methods are effective in that regard depends on the particular facts.

Tell me, in exactly what way does posting something on a previously-established and publicly-open website not meet the requirements of Reg FD, whereas faxing a press release to a necessarily-selective group of interested reporters does? Drafting the conditions necessary to prevent sharp-shooting should be the work of an afternoon.

For decades, the SEC has had a much better press than it deserves; this looks like it is still concerned with ensuring that the playing field between Wall Street pros and investors doesn't get too level. I once asked an ex-NYC securities lawyer where the SEC had been during a period of particularly egregious frauds -- he answered "They were too busy making my life a living hell over every misplaced comma in a prospectus."

And don't even get me started on FASB and accounting rules.

posted by James DeLong @ 11:01 AM | Accounting , Internet , Markets , Markets: Business, Investment & Innovation

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11. 1.2006

Careful When You Say "Monopoly"

Last week Solveig Singleton released a Progress on Point about (mis)use of the term "monopoly."

Solveig tells us that while IPRs fit several broad definitions of monopoly, IP as a legal monoploly has few interesting policy implications. In likewise situations, the NIH, US Postal service and physical property can be considered legal monopolies, yet they do not draw the misinterpretational flourishes forced onto IPRs. Economists have more interesting formal definitions of monopoly, pertaining to price and output, than that rightfully attributable to IPRs, which very rarely fall under these formal economic models of monopoly and when they do its seldom for reasons arising from IP doctrines.

Solveig finds that one of the main confusions in current IP discourse arises when different meanings of monopoly are conflated. Years ago, Edmund Kitch called this an "elementary and persistent error" in understanding IPRs. Today, such false analytical mechanics lead IP critics to define as monopolies anything protected by IP (technology underlying Apple’s FairPlay, the FairPlay DRM, market share of iTunes or its compatible music players), and apply welfare costs analysis relevant only to other kinds of monopolies. These arguments tend to ignore many things in describing "harm" caused by their rendition of "monopoly," including: the real product market, common economic indicators, product substitutes, market entry and industry turnover.

Continue reading Careful When You Say "Monopoly" . . .

posted by Noel Le @ 8:28 AM | DMCA , DRM , Free Culture Movement , Markets , Markets: Business, Investment & Innovation , Patents

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10.23.2006

Ask Lemley About Licensing Markets and the Lost Revenue Theory

With the increasing advancement of technologies and methods for transmitting digital information, copyright holders often seek enforcement in markets in which they do not actively participate. Professor Jane Ginsburg framed this issue in terms of how courts balance between giving copyright owners compensation and control in enforcement when there is substantial but not direct impact on the holder's market.

When ...technology develops a new mode of exploitation that does not supplant known markets for the work ...when copyright owners appear to be endeavoring to prevent the dissemination of that technology, Congress will split the difference between copyright owners and other(s)... by providing for compensation, but not for exclusive control over the new exploitation... where the new mode of exploitation threatens to replace or substantially compete with traditional markets, and when the new markets are ones the copyright owners seek to exploit, Congress will provide ...exclusive rights. Copyright and Control over New Technologies of Dissemination, 101 Colum. L. Rev. 1613, 1630 (2001)

As Ginsburg's framework maps to the market impact prong of the fair use test, one wonders what similar inquiry would look like aimed at another fair use prong. And who better than Professor Mark Lemley to step up to the plate. Recently, Lemley addressed enforcement in markets where copyright owners do not participate along the transformative fair use prong. Should a Licensing Market Require Licensing? (July 2006), Stanford Public Law Working Paper No. 917161. Consistent with Ginsburg's work, Lemley shows how the compensation and control distinction is significant in transformative fair use cases where use of copyrighted works occurs in markets untapped by the copyright holder.

Continue reading Ask Lemley About Licensing Markets and the Lost Revenue Theory . . .

posted by Noel Le @ 11:47 AM | DMCA , DRM , Markets

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10. 6.2006

Steve Forbes & John Rutledge at Lake Tahoe

On the final day of Telecosm 2006 in Lake Tahoe, Steve Forbes opened, followed by PFF board member John Rutledge. Steve Forbes gave a largely upbeat presentation about the U.S. economy; John Rutledge gave a similarly upbeat presentation about the Chinese economy, rebutting recent allegations that the Chinese have been manipulating US currency reserves. The alleged phenomena of "Islamo-fascism" became an issue between them.

Continue reading Steve Forbes & John Rutledge at Lake Tahoe . . .

posted by Solveig Singleton @ 6:37 PM | Markets , Markets: Business, Investment & Innovation

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09.27.2006

True Copyright Modernization

Now that the Copyright Modernization Act of 2006 has been put aside for this year, it has to be assumed that at least three of the four key copyright bills out there right now -- the Section 115 Reform Act, Orphan Works Act and the PERFORM Act -- are on hiatus. The first two were part of the CMA, and the third had issues that were addressed in CMA. (The audio flag remains a part of the Stevens telecom bill that is awaiting a Senate floor vote; Ted Stevens spoke on that bill last week at a PFF webcast, and you can see that here.)

What is often unspoken is that many of the conflicts occurring right now on copyright modernization with members of Congress, recording labels, music publishers, digital music services, broadcasters, recording artists, songwriters, etc., stem from a common curse -- that of compulsory licensing.

That is why, at the Vegas Music Conference last week, I called for an abolishment of all music compulsory licenses. PFF has published that speech today as a Progress Snapshot ; I encourage you to read it. You may not agree with it, but I think a case can be made that after an initial shock to the system, the market would guide all parties to voluntary licensing regimes that would reduce transaction costs; my former president Ray Gifford pointed out to me that transaction costs are already lower in a digital age. Congress would likely have to include some language ensuring that the intermediaries facilitating these voluntary licensing agreements weren't subject to strict antitrust regulation, but there's solid precedent for that.

Lamar Smith, someone who I respect and believe cares about artists' rights, has taken the high road and decided not to force his colleagues to vote on a bill that likely won't clear Congress this year. He vowed at today's markup to return with diligence next year. His ranking Democrat on the House IP Subcommittee, Howard Berman, vowed to join him, although Berman said he was pleased Smith was willing to wait until he -- Smith -- was the ranking member on the subcommittee.

When we return to this debate in January, perhaps the starting point should be the elimination of compulsory licenses. If that proves successful, we could target licenses in other industries, such as cable and satellite.

posted by Patrick Ross @ 11:14 AM | Legislation , Markets

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09.14.2006

More on Copyright Modernization

My, what a thicket this Sec. 115 reform is turning out to be. This is legislation designed to provide digital music services with a blanket compulsory license for digital music, essentially. A reason to support this legislation? Well, right now music services are paying money into escrow but none of that money is going to artists; presumably this legislation would change that (although I think a rate-setting action at the Copyright Royalty Board would still have to happen). So paying artists is good. Reasons not to support this bill? Well, my first would be my extreme allergy to a blanket compulsory license, which is a phenomenal violation of property rights. But lots of other people have gripes about this bill.

Launched as a deal between the music publishers (NMPA) and digital music services (DiMA), the bill, known as SIRA, passed the House Judiciary IP Subcommittee June 8th. A revised version was included in a bill with orphan works legislation called the "Copyright Modernization Act of 2006." It hasn't been formally introduced yet; I attended the House Judiciary Committee markup yesterday where it was supposed to move, but sponsor Lamar Smith held it back. He told me afterward that some tweaking needed to be done and a few interested parties had some things to say about it.

My spies tell me that is the understatement of the year.

Continue reading More on Copyright Modernization . . .

posted by Patrick Ross @ 11:10 AM | Access: Commons, Fair Use, Orphan Works, Public Domain , Legislation , Markets

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09. 5.2006

Merges, on IP, Contracts and Markets

posted by Noel Le @ 7:27 PM | DMCA , DRM , Markets , Media

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07.24.2006

Insight on Interoperability Mandates

posted by Patrick Ross @ 12:10 PM | DRM , Markets

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