10 May 2004
Or, more accurately, we've moved . . .
The Law School convinced the University to give us some space on their new server . . .
So here's where we are, and where we plan to stay (housewarming gifts are welcome).
We have copied the content from here to there, but there were a few "bugs" in the move (and it'll stay here, for what it's worth).
Please update bookmarks and feeds (now running RSS 1.0, RSS 2.0, and Atom ...)
23 April 2004
One of my favorite people to read is Lawrence Solum. He is not only quite creative when it comes to thinking and writing, with lots of original things to say, but he shows depth in his blog posts beyond many others (myself included). If you want an introduction to legal theory, read Lawrence's Legal Theory Lexicon--I had my "Law and the Information Society" students read some of it this term); if you want to learn who is joining the academy in the U.S., read Lawrence; if you want to learn (and think) about copynorms, read Lawrence.
Well, in the midst of all this (he teaches, too, by the way), Lawrence has decided to include all of us in his newest research project, which is just getting off the ground. In a series of posts that will appear irregularly, organized in the "Legal Scholar's Journal," he'll let us in on his process from the ground floor up. Here's just part of what he has to say in his first Journal entry:
"The journal will follow my progress as I take an article from a blank page (or "screen") today through the early drafts of summer to the submission of the final draft to law reviews in February of 2005. Some of the early posts will discuss the origins of the project. I'll say something about the parts of the article writing process that are rarely discussed in public—the pragmatic reasons for picking one project over another--about gaming the law reviews and taking into account the opinion leaders in the legal academy. But my next article is really being written to satisfy must one person--me. And I will also have a good deal to say about why I feel passionate about the project that I am starting today."As a new (potential?) scholar myself, I can't wait. I'll be reading, hoping that my own projects, in various states of disarray, can benefit as much from Lawrence's sharing of his experience as it has from Eugene Volokh's "Legal Academic Writing."
I can't wait . . .
18 April 2004
In reading my E-mail this morning, it seemed to me that the struggle against viruses -- specifically E-mail viruses -- provides us with a concrete example of the "Trusted Technology Fallacy" (about which I've written here before) and shows us how this fallacy not only affects our thinking about technology, but also has real effects on us.
Here's the situation: in responding the onslaught of E-mail viruses, both individual E-mail systems and virus prevention manufacturers have implemented automatic stop and respond systems that react to messages with certain types of (or in specific cases certain named) attachments. Once implemented (turned on), these systems are largely automated. They stop the messages, and they send a message to the alleged sender notifying that person that their message has not been delivered. This seems reasonable. If the message was wrongly stopped -- if the stop was a "false positive" for virus detection -- the sender likely thinks it has been delivered. If it was a real virus, then the sender should be alerted that his or her system has been compromised.
The problem comes when new types of E-mail viruses change their behavior, as has happened with the klez virus, and with others such as "MyDoom." The virus infects a system, but instead of sending messages that clearly come from the infected machine, it sends messages with the "from" field filled in from another address found on the system (more info on E-mail spoofing here). That means if someone who has ever sent or received an E-mail message from me is infected, I might either receive an infected file from them but "from" another E-mail address, or someone else might receive an infected file that seems as though it was sent by me. In the latter case, the automated system kicks in, and sends me a message that my message was stopped from reaching its destination.
Why does this make a difference? Well, let's formalize it. The equation looks like this:
"Standard" E-mail Virus
Infects a system and sends n infected messages from that system. Each message is either accepted and leads to another infected machine, or is deleted without further effect. We can thus assume that the infection will multiply by the number of infected machines m:
n x m = t1
where t1 is the total number of messages caused by the virus (though n here is variable depending on elements of the infected machine, including time connected to the Internet, type of connection, number of E-mail addresses in the address book, etc.). In any event, t1 is directly related to the number of infected systems.
"From field" spoofing virus
Infects a system and sends infected messages to found addresses; each message is accepted and leads to another infected machine, as above, or is handled in one of two ways: deleted either automatically or manually by the user, or, is deleted and a response sent to the spoofed E-mail address. Thus messages are sent by:
1) infected machines m
2) non-infected machines that will never become infected r
Let's add the non-infected by responding machines r to the equation:
n x m x r = t2
In any situation in which r > 1, it follows that t2 > t1.
This is the amplification effect. Virus writers have learned how to use automated responses to amplify the effects of their infiltrations into compromised systems, sometimes to the extent that the corollary effects added by amplification are greater than the effects of the virus itself. Without ever having been infected, having taken all the appropriate steps and avoided the possible mis-steps, I now receive more messages telling me that a message that I never sent has not been received by a person to whom I didn't send it than I do actual virus messages. In all cases, the message is useless to me, but it amplifies the effect of the virus by utilizing systems designed to combat the virus to actually spread its effects further. This is the nature of the "new" viruses.
And so long as there are technological systems, my guess is that the amplification effect will be in play. And the possible response, the idea that static or even flexible system automated systems can somehow cope with this, that we can trust them to actually handle this kind of human ingenuity, is at the core of the trusted technology fallacy. Turnkey computer security? I don't think so . . .
16 March 2004
The new Issue 8 of the International Journal of Communications Law and Policy is online, and there's some really, really solid scholarship in it, including pieces on the Internet in China, EU regulation of software and expression, the German approach to illegal Internet content, institutional structures in communications regulation, information convergence, and liberalization of telecom services in the WTO framework. Papers and reports from the European eGovernment Conference for 2003 make up a special eGovernment section of this Issue. There is also a conference review of WRC-03, and a book review of Manuel Catells's The Internet Galaxy.
The Journal main page is here, the current edition here.
11 March 2004
Making the US Congress look like a nice, left-leaning, consumer friendly body takes some doing, but that's precisely what the European Parliament has done with its vote on the piracy directive (the relevant portion begins at page 203 of the PDF). This has received a lot of coverage, but to my mind most of the discussion misses the point by totally underestimating what's going on. Four of the directive's provisions, when seen together with other recent developments, mark a shift in the law so profound that it has no parallel in recent times. Here's why.
First, the non-exclusion of consumers. The original draft specified in Article 2 that the Directive only applied to commercial piracy. By the time it was passed, this provision had been removed, and replaced with a recital which said that the Directive would not ordinarily have to be enforced against consumers acting in good faith. Yeah, right. As the drafters knew very well, in English law and most other legal systems a person who reasonably ought to have known that the material was copyrighted will never be acting in good faith in downloading the material without authorisation, even for personal use. This is so glaringly obvious that I wonder why they even went through the charade of making an exception.
Secondly, the remedies. Confiscation and destruction of any equipment used for infringement. Mareva injunctions and Anton Pillar orders for the asking against commercial infringers. A mandatory disclosure of all personal information known to anyone who's asked for it in the case of commercial infringers.
Thirdly, the position of intermediaries. Full interim relief available against any intermediary. No defences are stated to be allowed. Not even good faith. Non-compliance may be met with confiscation of equipment as above.
Fourthly, the role of third parties. Relief may be sought by professional bodies dedicated to the enforcement of third party rights, if they are generally recognised as such.
Now let's recontextualise this. Let's say that the European Parliament passed a law not about intellectual property piracy, but about thieves. People who're actually stealing tangible stuff, not just violating rights over intangible stuff. Should be less controversial, right? Except that if this directive were transposed directly to that realm, what we'd have would be something like this:
If a thief steals, his car can be confiscated and destroyed, because he drove to the scene of the crime in it. We can hire people who know how to do these things. We can freeze all his cash if he's been stealing a lot, and go into his house and grab all his property as security. We can even get the court to issue an order to all gas stations preventing them from selling him petrol. And all this is in additon to rights under criminal law.
How likely is it that such a law would be tolerated? Yet measures of protection that would be rejected out of hand for tangible property are being granted for intangible property. And it's this underlying attitude that's deeply troubling. Over and over again, the need for deterence is being emphasised. We're being told that the correct way for civil law to achieve its ends is through draconian punishment. But this is precisely the position our western legal systems have been moving away from for the past four centuries. Fundamentally, the idea is that civil law's goals are compensation and restitution, and the deterence of behaviour deemed undesirable by depriving the misfeasor of the benefits of such self-serving behaviour. Civil law should not resort to deterrance through punishment not aimed at compensation, nor will it condone vengence. With this directive, We've effectively thrown all this away, and gone back to a system that I can most charitably describe as mediaeval, and less charitably as something unprintable.
But this isn't the worst of it. As I said above, this directive marks a complete redefinition of how far the law can go to protect property holders, and how much property holders can do to those who infringe their rights. And it's not the only move in relation to bolstering the position of property holders. With the ever-continuing expansion of what is patentable, the unending extension of copyright duration, and the constant challenges to the idea of fair use, we're seeing an attempt to appropriate things that could never have been property in earlier times. The real problem isn't that we're not being given enough rights in relation to the new media. It's that our laws are taking away what few rights we've always had.
Dave Bolier drew some interesting parallels a few months ago in his excellent book "The Silent Theft", but the problem's much deeper than that. I don't see myself as being radical - I'm a commercial lawyer who became interested in the technology-related issues because of their importance to commercial law. But I'm still going to come right out and say it. I think that we're seeing the most drastic attempt to redefine property relations in society since the enclosure laws, and the most coordinated attempt to prevent challenges to existing producers since the corn laws. As then, basic notions of what measures the law is justified in taking are being redefined, and redefined in a manner that challenges fundamental principles of our legal system. In that society, immoveable property and agriculture were the focus. In the information society, intellectual property and multimedia are the focus. And I think the existing producers are winning for now, and will continue to win unless we take the kid gloves off and organise ourselves into a real, co-ordinated opposition.
21 February 2004
Prof. Alexandra George, Queen Mary Intellectual Property Research Institute, University of London
Emperor's New Clothes Analogy Applied to Intellectual Property
Where does this lack of consensus show itself?
The varied and unsatisfying way of seeing this shows how unclear it is
IP is not property, it is regulatory
Note: Technological problems prevented me from blogging this panel; I will seek copies of presentations from the below and post them as soon as I can.
Prof. Christopher A. Cotropia, Tulane Law School
“Claim Interpretation and the Patent Disclosure”
Prof. Richard Gruner, Whittier Law School
“Corporate Patents: Optimizing Organizational Responses to Innovation Opportunities and Invention Discoveries”
Prof. Katherine J. Strandburg, DePaul University College of Law
“Mining the Patent Database”
Prof. Shubha Ghosh, University at Buffalo Law School, SUNY
“A Social Insurance Perspective on Privacy and Security”
How do you talk about information privacy?
- Explain social insurance perspective
- example of products liability approach-thought experiment
- felshing out implications for legal reform
Social Insurance Perspective
- Defining Social Insurance Perspective
- systematic versus individual costs
- creation of trusted institution
- risk and uncertainty
- liability and social cost
Products Liability Approach
- Services are not standardized
- service providers and insurance
- service providers and professional regulation
- information security as product not service
- standardization exists in software
- deep pockets not a bar
- industry standard
- analogue to products at turn of the century
- restatement third: sufficiently analogous to distribution of tangible personal property
- standardization exists in software
- Traditional categories of manufacturer, retailer and distributor
- software in a box
- dowload software as manufacturer
- Programmers: apply traditional respondeat superior principles
- Open source software
- traditional products liability doctrine: defining consumer expectations
- manufacturing defects
- desing defects
- consumer misuse and alteration
- remedies for economic loss: other property
Lessons from the thought experiment
"By Any Other Name: Identity, Anonymity, and the First Amendment"
New Title: "For What IT's Worth: A First Amendment Guide to Interpreting - and Sometimes Protecting - Anonymous Speech"
Supreme Court protection for anonymous speech
- being tested on the Internet for "john doe" speech
- referred to as CyberSlaps: attempt to punish by uncovering identity
- Past article, Silencing John Doe: must interpret internet speech must be read in context, including opinion doctrine
What does identity contribute to a statement?
Thesis: We can sort good anonymity (supports free expression) from bad anonymity (fraud, others) by looking at the context of the speech
- MacIntyre was fighting school board and printed out flyers
- MacIntyre was in the "core" speech area, not false/misleading, and aimed at a particular audience informed on heated political issue
- MacIntyre was handing them out
- Got in trouble for violating Ohio election law (invalidated because of speech)
- Did not need her identity to evaluate her speech
Anonymity in Cyberspace:
- must have an educated critical audience
- Must have an audience that understands the norms of the communication
Flaws in MacIntyre theory
Prof. Laura A. Heymann, The George Washington University Law School
"The Birth of the Authornym: Authorship, Pseudonymity, and Trademark"
How is this a literary analysis
What does this mean?
Law has not caught up with the literary theory
Prof. Mark McKenna, St. Louis University School of Law
“Identity and Autonomy: Towards A Rational Theory of Identity Protection”
Identity appropriation: right of publicity seen as part of the right to privacy, based on Brandeis, and rights to control exposure
But law doesn't follow this theory
- Right of privacy violation seems inadequate
- Perhaps it's the association with a product
- It's a question of control over associations
- conclusions are made about what products/things you associate yourself with
- this is the same for famous and non-famous
- we should protect this aspect of autonomy, even if scope of protection may vary
Claim should be when your image is used so as to make it look as though you endorsed the product
Prof. Adam Candeub, Michigan State University-DCL College of Law (beginning Fall 2004)
“Trinko, Antitrust, and Network Interconnection”
All comments are the presenter's; errors are the reporter's
Basic holding: essential facilities and refusal to deal cannot be used against telcos, etc. where refusing interconnection for purposes of antitrust
Scalia's opinion must be read narrowly
- What anti-competitive strategy could a monopolist be engaged in when refusing to deal?
- raising rivals' costs
- vertical integration in response to bargaining constraints
- raising rivals' costs
- Prudential concerns are overstated
- regulatory agencies are not always best at this
- agencies are subject to political capture
- judges have less time to consider issues, more isolated, less information at times, but are more independent
- regulatory agencies are not always best at this
- Paper argues that we should not look to which institution is better situated to regulate this issue
- Basic insight of Coase in "Firms" is to set out that size of firms and transactions, where we look at transactions that are information intensive, these are best done within a firm; simple transactions are better done between firms
- What does that tell us here? Are courts or agencies better?
- Look at the relevant transactions . . .
- Interconnection at the long distance level was fairly straight forward, and was done by a judge
- local interconnection is more complicated, and the transactions supporting them are complex, and is done by a regulatory agency
- Look at the relevant transactions . . .
“Intellectual Property and the Sixth Estate”
Fourth Estate is the newspaper estate, fifth estate is broadcasting. The sixth estate is Web media and Web logs.
Internet was designed initially as another mass media medium. It has characteristics that make it useful: cheap, far ranging audience, interactivity. Advantages include potential democractic functions, as well as journalism. By allowing people to interact, they become more involved. A final advantage of the Internet is a new means of news media.
The problem is the enclosure movement. Highlights of IP and Internet news interaction:
- Used in ways not intended
- Has been used to infringe speech (take down provisions)
- Locking up public domain data and preventing fair use
Extension of the Copyright Act
- under Feist
- Not political
- Under DMCA, ask for fair circumvention for news reporting
- For term, ask for greater fair use in the extended period
- Database exception: ask for news reporting/journalist exception
- Copyright system can be a hydrolic system, and can be adjusted in both directions. You can always have offsets within the Intellectual Property system.
- Don't give rights if they are not necessary
- Copyright should always be a limited monopoly
- Practitioners don't see it this way: they see it as needing to draft patents properly to keep property from going into or being "donated" into the public domain
- We need to educate both journalists and other people
- Many myths exist and journalists sometimes share them or spread them
Three Crazy Ideas about what is going on here (between recording industry and consumers)
- recording industry trying to protect human jobs, machines are taking human jobs away by destroying intermediaries
- But we lose jobs all the time: what we have today is very different from how things looked before
- creative destruction allows for replacement and not just destruction
- Internet was created during the cold war to decentralize communications
- If companies want to win the Internet war, they need to develop new strategies that may destroy portions of the network
- People will not understand what is going on until they get jobs
- Worse, most elementary/high school teachers are teaching students to violate copyright (using Napster, for example)
- If those who are educating don't understand, how can they educate properly?
- Parents also don't understand
One word to describe what's going on: Nostalgia
Prof. Jay P. Kesan, University of Illinois College of Law
“Why Bad Patents Survive in the Market and How Should We Change?—The Private and Social Costs of Patents”
Criticisms of PTO performance
What is the patent system bargain: two stages
Quality of Issued Patents actually matters
- supra-competitive pricing
- Legal costs
Want people to get involved; two choices: at examination or re-examination
Effects of patents on markets (economics)
Focus of the piece
Why Bad Patents Survive
Introduction of Patent Oppositions
Japan Approached it the Other Way
20 February 2004
Prof. Adam Mossoff, Michigan State University-DCL College of Law
“Spam—Oy, It’s Such a Nuisance!”
Spam has been increasing rapidly. Individual spammers can send 250,000,000 spam messages per day. Injury includes not only direct damages, but education for users, customer service, and other indirectly related costs.
- Essentially empty
- Essentially a fraud measure
- Provisions were eviscerated because of need to be able to use E-mail legitimately
- ISPs are inviting people to use E-mail
- Is not about exclusivity, and no real dispossession of the "chattel"
Use and enjoyment of land: includes commercial use of land being infringed
No need to engage in a legal fiction of dispossession of chattel
Prof. Matt Jackson, Department of Communications, Penn State University
“Rethinking Copyright: The Role of Intermediaries in Communication and the Law”
Liability rules in terms of intermediaries in Communication and the Law
Problem that the Internet poses for copyright is that it is a network (not that it is digital)
How does the imposition of liability standards effects development of resources by intermediaries
In addition to liability, three prong strategy: liability, contract and technology
- Hardware: DMCA is limiting the reach of the Sony case
- Contracts: licensing agreements required under broadcast flag
- End-users become intermediaries: different forms of liability may apply
Hillel Sommer, Radzyner Law School, The Interdisciplinary Center (Israel)
“Rethinking the Legal Protection of Television Formats”
Some thought has been given to television formats
- Significant part of production
- Being sold worldwide at trade shows
- opportunity to copy arises earlier
How does copyright fit into this?
Howard Stern vs. ABC over format
Fair Dealing or Fair Business Practices
Leaves only sui generis, relying on catch phrases from patent area
Michael Landau, Georgia State University College of Law
“Dastar v Twentieth Century Fox: Has the Supreme Court Granted a License to Pass-Off and Plagiarize Creative Content?”
This case is the death of attribution . . .
Film fell into public domain, Dastar copied and repackaged and then released it as Dastar as publisher, sued by TCF for false origination
Lars S. Smith, Louis D. Brandeis School of Law, University of Louisville
“How IP Laws Can Discourage Innovation and Business Development”
Basic idea came from reading Lexmark case
What is the result?
Wants to contrast this trend with Sega, where use of Sega trademark was approved, and the loss of leakage
M. Scott Boone, Appalachian School of Law
“Rights in Virtual Objects: Contract or Property
Why do we care about virtual objects (within massively multiplayer online gaming)?
How does it work?
First Sale Doctrine
What does looking at this do for us?
I dropped out of recording the comments on this panel as I began to participate; sorry, I'm not much good at multi-tasking in both the real and virtual worlds at the same time!
Mistrale Goudreau, University of Ottawa Faculty of Law (Civil Law Section)
"Moral Rights and Freedom of Speech: Connecting the Dots"
Moral Rights: Useful, Harmful, or uesless:
Canadian scholars have been hostile to them; Berne Convention implementation has not been robust in the U.S. and UK (not adopting the French approach). ;
|U.S. statute: 17 USC Sec. 106A, Visual Artists Rights Act of 1990, prohibits "defamation style" distortions||French law (Article L121-1) includes distortion as interpreted by the artist; . French courts will not let artists go too far, but in principle it is the individual's choice|
|waiveable||Not easily wavied, but waiver may be upheld|
So do rights exist in the U.S. that are like moral rights, especially within the freedom of speech?
Can freedom of speech be waived? Yes and no; sometimes upheld and sometimes not upheld
What about private intereference with freedom of speech? Not clearly regulated (only Red Lion)
If we had a private tort for private interference with freedom of speech, you might have this . . .
Margaret Ann Wilkinson, University of Western Ontario Faculty of Law
"The Public Interest in Moral Rights Protection"
Sets copyright against technological development. Copyright followed "information containers" and distribution methods. Concludes that copyright bargain is a valid one in this context. Recent history of technological development is outlined, and following that leads to the finding that moral rights have a role. The appropriate role of moral rights is a bargain: give authors control so that audience gets knowledge of source. Paradigm of the moral rights does not fit all moral rights (such as the right of anonymity), though that should still be protected.
Susan Scafidi, SMU Dedman School of Law
Borrowing from moral rights to talk about cultural property. Looking at the lifespan of cultural property, and the artificial creation of that lifespan. Destruction of cultural properties, drawing then on moral rights to explain reactions to the destruction of cultural property. Cultural property as images that represent culture. Iconoclasts do not despise icons, but they value them. Why is it that we (the international community) celebrate certain kinds of iconoclasm: toppling of statues of Lenin (more recently Hussein), yet protest other kinds of iconoclasm (destruction of the Bhuddas).
How do we determine what is "good" iconoclasm?
Shared theories of intellectual and cultural property may give us some purchase. Borrow from IP for cultural property. In the context of iconoclasm, ask "who is the author" or "who is the community." Focus on the process of creation of these images.
Statues (Lenin/Hussein): directed/created by political figures; given cultural meaning by citizens who lived under them.
Bhuddas: community who supported their creation, or, since they are gone, the world Bhuddists community
If this is the case, only the communities can "take them back." Taliban thus did not have this right. Authorship is located in the author or imagined community with the closest relation to them. If you ask the more traditional real property question, it would be harder to reach this conclusion.
In terms of cultural heritage, the author or source community becomes the community interpreting the text. The decision whether to destroy (withdraw) an object would then be with the world community.
International rather than national heritage gives greater international control, but this involves a contrary loss in national or local cultural control.
Would this have stopped the Taliban from destroying the Bhuddas? No, they were outside the world system. But it does give a possible moral basis for discourse in the discussion of iconoclasm.
Prof. Jacqueline D. Lipton, Case Western Reserve University School of Law
“Personal Property Security Law and Intellectual Property as Loan Collateral”
(this presentation was originally scheduled for later today, but the schedule has changed a bit)
Compares American approach with Anglo-Australian approach to Personal Property security law.
Classified problems into two different groups
- Risks inherent in dealing with IP generally (for generalist financiers); categorize IP in a way that makes sense for commercial people who don't deal with that on a regular basis in the regular course of their business;
- To what extent does an Article 9 finance system solve all the problems?
The second is the bigger point. Article 9 lawyers think they have dealt with it, but as commercial lawyers they may not have a full understanding of the implications of their categorization. So many problems, such as registerization, are still there. Sometimes the answer is to not take a security interest in particular knotty IP. If US commercial lawyers looked at English responses, some trouble might be avoided.
Issue One: How do we categorize things helpfully and deal with risks
Response has often been (in Australia and UK) we don't want to do it. It is starting, but is not strong yet. Rather than traditional patent/copyright, is rights that are clear property interests that are relatively easily transfered. This is what financiers are interested in. The legal formal issues are: is it property and can I deal with it? Commercial lender is not interested in theoretical property questions, but rather whether it has value and can be transferred. English approach of defining things are property may be helpful: it is property, it can be transferred in this way. Distinction between title exchange for security and equitable interest taken.
Finding a property interest that is transferrable is central to that. This is not an issue under Article 9, which is a function over form approach. If it functions as a security transaction, then it is one. Maybe property question is not so important to creation of interest, but it may be on default sale.
This leads to taking the approach that we can call it property if we know what it means.
What are the commercial risk issues?
- Harder to categorize
- Might be designed around
- Might only flourish with creator
Categorization into legal and proprietary, with subsequent categorization between legal risks based on categorization and legal risks because of the nature of IP as a good.
Compare statutory IP with "colloquial/common law IP; example: trade secrets (in the UK these are not property, are called "confidential information"), copyrights in software . . . advice is to not deal with them alone, but in combination it may be okay
- Legal/conceptual: is it recognized as property, transferrable, etc.
- Commercial risks: based on the nature of the right secured
- Dual registration: detailed jurisprudence in the US; Canadians and UK are addressing it now; Australia
- Where do you register? state Article 9 filing, federal IP register, company charges register?
- In U.S., appears that you can register under Article 9, but that there is nothing that would stop you from transferring legal title on the IP register
- Where do you register? state Article 9 filing, federal IP register, company charges register?
So maybe the answer is in the old forms of practice. Current inquiries are around whether to have a national register (Canada), in the UK they have tentatively concluded leaving them in the securities register.
Is the question (where do we register) really the point? Or is it how you characterize the transaction? If a commercial transaction, then securities register. If it is dealing with property rights, then the IP register seems more appropriate. Mortgages are illustrative: if you create a commercial transaction by transferring title, then you don't need to do securities registration because the lender holds title.
Legal mortages as the answer to IP security. The more control the lender exercises, the more risks can be controlled by the lender. It's all about control; the lender having the proprietary control, to be able to bring infringement proceedings, among other advantages. Maybe there are just some assets that don't belong in the Article 9 system, and where that's the case (and maybe that's the case with IP), do something else.
- U.S. did study this
- U.S. study is available
- Asset issues, where right comes about because of filing with patent office (for example), or federal copyright law, question is just about perfection of the security interest, and should it happen under federal law or state laws; the practical answer is, just file everywhere (this at least gets you protected); ninth circuit said federal if registered, but state if unregistered
- Have always advised clients of this in the absence of some clear resolution, but it is more problematic in the U.S.; as to registered/unregistered, it is avoided elsewhere by not having a copyright register
- Article 9 is great because things are spelled out, but we could do this with standard contract forms, as well, lowering transaction costs as well as article 9 does
- Have always advised clients of this in the absence of some clear resolution, but it is more problematic in the U.S.; as to registered/unregistered, it is avoided elsewhere by not having a copyright register
- security interests in licenses have been an issue in the US; where does this fit in?
- Moving to legal mortgage is to get title is teaching commercial lawyers to be licensing lawyers; but this is taking a class of lawyers and retraining them (commerical to act as IP lawyers); bankruptcy issues may also be important in moving to a legal title system
- this is always part of the problem, and sometimes exists within the same field; it's a commercial question, answered in the negative in UK/Australia in the rejection of taking security interests in IP; keep thinking about UCITA, and the need for them to speak together: the answer needs to be to draft a sets of laws that fit together (UCITA didn't work at this for various reasons)
- Situation in relationship to copyright is a nightmare; perfection cases are all over the place, and incredibly complex, requiring belt and suspenders (file with everyone)
- true, and due diligence required is very extensive and complicated; generally agree with everything you say, though in GB adoption of an article 9 type system would be easier because of no federal/state issues; but there are rights that may be missed (plant breeders rights, for example, in UK)
- With regard to fitting IP into a category, it is a pretty general notion; are you ignoring that IP is a funny sort of property in respect of value and how it's determined; IP has a context specific value -- valuable to specific companies with ability to exploit it -- if patent is separated from company, it won't have that same value; has using patent cut the property too narrowly (like taking security interest in left shoe, not both); why not just take stock in the company?
- Banks may not want to be seen as controlling companies instead of assets; in addition, other patents may have value outside of current situation.
- how do moral rights fit into this entire scheme?
- Don't discuss them; do discuss it in other articles; always falling on the side that moral rights are property rights; think they are limitations on property rights; moral rights fix or limit property right
- Patents and trademark are property-like, copyright is harder . . . maybe the security should be in something else that is relevant? performance rights, etc.
- Interesting suggestion, but potentially more difficult (more education required for the lender)
- Are the horror stories to tell about this?
- Not a lot of empirical evidence, or even ad hoc, on this; the article is about the time being wasted on the issue when it might not be one (money wasted on law reform)
- Your perspective is primarily commercial lawyers; to what extent should we think about promoting progress in science and the useful arts (IP policy)?
- Not sure; needs further thought to put the two together; property is a transactional tool . . . fascinating suggestion
- Article 9 explicitly mentions that IP is intangible property, but lots of other things that Article 9 says that don't deal with IP
- classic situation is creditor v. licensor (licensor wants it back at bankruptcy)
- depending on the form of IP, whole variety of routine issues for IP irrelevant under Article 9
- classic situation is creditor v. licensor (licensor wants it back at bankruptcy)
- This really should be a matter of good drafting of the charge document to begin with; the rules are not there, and so it needs to be spelled out
- Is there evidence of any problems in this? Sounds like more of a lawyer's/academic's problem
- This is a real issue, but we don't have empirical evidence; in Australia, England and Canada, there is the feeling that something must be done, and that all the bases must be covered; there is not litigation about most of this; also, writing this to say to those jurisdictions that think the US is the perfect model, that there are still issues in the US and it may not be perfect
Prof. Michael A. Carrier, Rutgers Law School—Camden
“Cabining Intellectual Property Through a Property Paradigm”
If property is more limited, there would be less concern with calling information property. Four parts to the paper:
Propertization of IP
Limits of Property
Extrapolating to IP
How IP can be limited
Propertization of IP
- IP has come to look more like property rights in physical things. They have become longer, more exclusive, and more pervasive.
Limits of Property
Three paradigms based around development (including access, waste), necessity (including emergency, eminent domain), and fairness (limits promote equity).
Extrapolating to IP
IP is now considered absolute, which if not true for physical property, then may not be true for IP;
Property works: if property works (in general), then IP could as well, to strike the appropriate balances;
Utilitarian basis for property: no question of overuse (tragedy of the commons) in information, and so IP only has the incentive rationale to support it; and in IP, incentives are often other than IP rights (first mover advantage)
Upshot: if limits are appropriate in property, with two utilitarian justifications, they are more so in IP with only one;
Dangers more possible in IP; limits in IP can have effects outside of the property arena; to the extent that this is true, limits are more appropriate.
They already exist: Generics and non-use in trademark law are quick examples
What we do not have is new fundamental limits to IP
- necessary fundamental fair use: uses needed for democracy (alternative viewpoints)
- How would this change things? Mickey Mouse alternative uses would be allowed; Free Republic would be allowed to include text from newspapers in its forums; Dr. Suess Cat-in-Hat version of OJ Simpson
- Where necessity exists:
- Concern: present always seems more important when it happens than in hindsight, so a rigorous definition of emergency could be adopted;
kinds of emergencies might be bio-terrorism attacks
compulsory licensing with some royalty would be appropriate
- Some others
equitable fair use: whether or not a fair segment of the society is engaging in the behavior
To the extent that IP is considered property, we are too late: it is. Now we should look to putting appropriate limits on it.
- There are more issues to talk about than two utilitarian justifications for property, and thus there is more to discuss than utilitarian to justify limits
- It is too complex to try to address all issues and justifications, and will probably stay with utilitarian approach
- How do things change when you do consider the broader picture?
- The difficulty this applies to is how do we move from one area to another? Pick it up and apply it; Michael doesn't think this is very convincing. So he goes to necessity development in IP; there is nothing that automatically follows from this; there is slippage as to how it will work, and what doctrines will follow;
- Doesn't a balancing test already exist in terms of the remedy? injunctions are balacing
- Michael would rather have the balancing up front
- Exceptions do exist in patent law; patent pools may exist; TRIPS public policy health exception;
- Maybe some of these
- When looking at ways to get incentives, it is not necessarily possible to choose just one, as long as market is competitive you cannot overflex your muscles; ex ante incentives will not necessarily be the same when substituted;
- Michael is trying to look at the story of incentives, and, in the aggragate, it can be criticized, and we have these lessons that can be learned from that criticism
- private ordering questions regarding property use
- private ordering is important
- leaving out moral rights is going to leave an entire culture out of the importance of the paper
- this may be true
- empirical claims: are these overstated?
- they are based on US empirical studies, and there are contrary studies, as well
- Should we look at the difference between producing cultures and non-producing cultures
- Yes, we should
- could we have the question be one of beneficial patents?
- by definition, all patents fit the test, why question it second order?
- distinguish between cat exercise patent and AIDS virus
- but who is hurt by the cat exercise patent?
- Fungibility in terms of copyright seems less troubling: no access to patent to save life and you die; not really true for copyrighted works
- aggregate of copyright could equal problems in patenting, but not in the micro
- Notion of transformative use, and parody, are questionable, and lead to a free rider effect; limited times for creation are not necessarily directly related to incentives; lots of people create without that; and they probably don't relate to things like publicity rights; all of this can be balanced by eliminating injunctions and move to determining what the damages are (which would also require losing fair use for free);
- base limits in functional use, and compulsory license is another valid approach
- real property is changing: non-use is now recognized to a degree in real property as valid (in regard to adverse possession); adverse possession may not be the right terminology; it is not a transfer of ownership
- Michael belives this is covered within his framework
- Should the question be whether patents increase dynamic efficiency? Isn't the answer "we don't know"?
- Let's assume we don't know; but how would that affect the argument; patents are the necessary point to show that limits are necessary, but it helps the point to say patents are not necessary in all cases;
- Transferring from one area of law to another, look at international law on this issue
- What are the free speech implications of necessity in your framework, as well as problems of emergency in long-term illnesses; how do we limit the limits?
- No need to limit the viewpoints; the more the better
- Be aware of talking within the utilitarian framework that you are in one context
- need to figure out how this fits
Debora Halbert, Department of History and Political Science, Otterbein College
“Feminist Interpretations of Intellectual Property”
Up front disclaimer: There is no general agreement on feminist interpretations of IP.
Looking to how feminists would approach Intellectual Property from three perspectives: 1) epistomological 2) authorship and contextualism; 3) property itself; approach to the idea of property. How the law is written itself.
Epistomology: knowledge construction; Firestone wrote about it in the 1970s. The feminist critique makes the argument is that knowledge has been constructed in a masculine way, and you must go beyond this and construct it anew. Investigation of craft labor, through the example of knitting as becoming commodified: how does the shift happen? Epistimological component from knowledge construction can lead to a new construction within feminism.
Authorship and textual analysis: early copyright constructed within a male framework; women writers were seen almost as prostitutes. Hazlett thought women wouldn't even understand his writing. The question: Why was it necessary to set up reading, and knowledge and understanding in this way? This still exists as the staking of territory. Relationship of authorship is the key. Then bring in Focault and the deconstruction of the author: why did this happen as women were finally accepted as authors. Feminists are trying to find a middle ground.
Property: decreasing boundaries in terms of property. Rethinking it from this perspective.
Just starting to work on the textual analysis of bias in the text of the law.
Michael J. Madison, University of Pittsburgh School of Law
“Rights in Things”
Hewlitt Packard inkjet print cartridge: "Intended for single use only. Not licensed for modification." Michael's not sure if it's binding, or why or why not. He wants to think about the tangible property question. Two things in looking at it as an IP lawyer: 1) it's not as weird as looking at it from a conventional property response; you cannot put a servitude on a chattel. But the conventional IP understanding of tangible/intangible is focused on the difference between the creator and the created; then the updated policy justifications for IP and first sale, etc.. But much of the world has gotten away from the dualist approach: we define the things in law and we moved away from the idea that there is an actual "thing" that we are simply applying law to. If this is true, why can't we say, "I've created a limited use print cartridge"? What if HP created the cartridge so that it was not useful physically after the appropriate amount of use? That would be okay. If HP can do that, why can't HP put the legend that defines that thing the same way?
Our intuitive reaction as IP lawyers is that we should be able to do with it as we want. But software licensing works essentially the same way. Restrictions are also placed on the "physical thing" in terms of the code. The point of the paper is to figure out the answer to one of two questions: 1) maybe we need a different or better way to distinguish tangible/intangible; subject/object. Or, maybe we need to do a better job conceptualizing what "things" are.
Robert A. Heverly, The Norwich Law School, University of East Anglia (U.K.)
“Intangible Property: Oxymoron or Reality?”
My piece is focusing on notions of how IP is treated as property, especially considering differing conceptions in different countries. The traditional idea of information as property is more firmly established in the UK than it is in other countries (to be updated later, as I was presenting rather than blogging).
- The nature of the framework (linguistics as important, but not an end in and of itself);
- The idea of women writers and anonymity (women taking male roles); women as property, women's stories as property; is it that women's creations were not covered, or that they may have gotten other coverage (such as that the design was covered)?
- Was it that there was an underrepresentation of women as authors, artists, etc., and that women reacted to that and wrote as men because they thought they would be better accepted; or was it that there were not the appropriate areas for coverage, and it seems to the commenter that it was the former.
- Property is often seen as being absolute, but that's just not accurate historically, and it's actually limited and contextual.
- Go beyond the idea of contextual framework of language and include cognative aspects to acknowledge that people experience things differently even within the same contextual framework
- Are we asking the wrong question; maybe it's not this versus that, thing versus not-thing, property versus commons, and that we need to ask another question to find what the hybrid may be
- What is the question are we asking, and what does it mean? Is there tension between wanting to question
- We should acknowledge that the economic argument for licensing restrictions on physical things only seem to go so far, and we should be cautious of that;
- Real property rights are maleable; property right in divorcing spouse's income (courts call it a property right)
- Post sale restrictions are well-known; software; seeds are another one; what is the difference to others?
So we're here, and all set up, and getting the introduction from Dean Terance Blackburn. I noted to one of the workshop participants, and I should note to you. I'm not the official (or even unoffical) workshop secretary. Secretaries are supposed to be accurate. I'm playing more of a journalist's mode; accuracy may suffer accordingly. What that means is that if things seem wrong, or don't make sense, that's my fault, not the panelists!
17 February 2004
Peter Yu at Michigan State's Detroit College of Law is hosting a workshop for IP and communications law scholars [pdf] on Friday and Saturday, and has agreed to let me blog it. There are some really interesting people with some really interesting papers going to be there; some people in particular I am really keen to meet, but honestly I just can't wait to spend some time with the whole bunch of them! I'll be participating, as well (presenting an early draft of a piece I have on information as property . . . or, as not-property).
Watch this space on Friday and Saturday for updates of the discussions, as best as I can capture them. Of course, it's not an "official" record, but hopefully it's the next best thing to being there!
13 February 2004
Some musings on Microsoft's new XML-related patent, which has blown up quite a ruckus on Slashdot and elsewhere.
On the face of it, the patent's description is innocuous enough. Microsoft's method will consolidate scripts written in different languages into an XML file, and add tags to the file which contain the script's name, language and a brief description of what it does. The file will be parsed, and its contents presented to the user in the form of a menu or some other system enabling selection. The script selected by the user will then be extracted, and passed to the appropriate interpreter. So goodbye to the days of hunting for that old shell script you wrote in 1978: all shall be neatly organised and menu-driven for you. And for those running corporate intranets or even webservers, here's a great new sparkly way for you to bring together scripts which you want end-users to be able to run.
So why am I grumbling?
The answer lies in software history. Right from the early days of UNIX, scripts have been identifying their language through a tag (#!bin/sh, #!bin/ksh, #!usr/bin/perl, etc), and the OS has been passing them to the appropriate interpreter. Most UNIX systems don't hold different scripts in the same file, but as pointed out by one of its developers in a discussion on this patent, ALL-IN-1, the 80s' favourite office automation tool did hold multiple scripts in different languages in the same file, together with each script's name, language, description and a rudimentary help system; all of which was presented to the user through menus. And if you take many of the macro packages that extend Emacs' abilities apart they're - surprise, surprise - organised in the same way.
So here's what's new in Microsoft's patented technology: they use XML to do this more efficiently.
Is this an appropriate way of determining obviousness in relation to computer software?
I would say that it is not. First of all, there's a huge difference between a medium like C++ that's been around for a while, and newer programming media like XML. If someone figures out a genuinely new way to do something with C++ now, it's pretty likely that it's not obvious. But this isn't necessarily so for XML. XML hasn't been around for that long, it offers a whole range of new possibilities, and it's not unreasonable to say that people wouldn't have gotten around to even using all its obvious features. Just because it hasn't been done before in XML, it doesn't mean it isn't obvious, particularly where - as seems to be the case with the patent in question - it's been done before using other programming media.
Secondly, and more fundamentally, it creates a rather disturbing situation when you look at the way software standards such as the XML standard are arrived at. Many standards bodies - such as the W3C - require companies to agree not to charge royalties for technologies that are incorporated into standards. What patents such as this in effect do is to give companies a way of circumventing this - whilst pretending to keep the technologies themselves patent-free, they are free to patent the most important applications of the technologies thereby making them virtually useless to the programming community at large. Microsoft, for example, has repeatedly pledged to keep the XML standard royalty-free, while continuing to file for patents over several applications of the standard. If other companies are following suit, it looks like we can expect a rash of patents over various core applications of XML whilst preserving the façade of keeping the standard itself royalty-free.
This problem isn't going to go away, since software patents look like they're around to stay for the foreseeable future. In the course of next week, I'll post explaining why I think raising the bar of "obviousness" can help mitigate some of their worst effects, and avoid the more absurd and damaging effects of patents on new technologies. In the meantime, I'll leave you with the thoughts of a programmer on an XML Developer's forum, who wondered what the software industry would look now if the very basic techniques of programming, such as using a stack to store subroutine calls' return addresses, had been patented. Well, if patent law continues dealing with new programming media and technologies as it is currently doing, we might just have the answer.
07 February 2004
In the ongoing discussions over control of information, we all start with certain basic premises. Some of these later become explicit, while others remain unspoken. At times both kinds can undermine our conclusions: Anyone investigating the world when it was thought to be flat (an explicit premise) would have run into this effect. But implicit premises can have this undermining effect, too, and sometimes with more pernicious effect.
Some of the most interesting conversations on copyright in the United States flow out of a discussion about how much use individual users should be allowed of information goods, whether they've purchased them or acquired them in some other way. Commentators have followed the premise to notions like this one: when law provides protection to the owners of information goods to "lock up" their goods through technology, the law is actively shifting rights from users to owners. This is especially true where the "goods" include information that is in the public domain (ie, goods which do not need to paid for to use). In such a case, users are actively deprived of their rights, the theory goes. Duke Law Professor James Boyle refers to the attempts in U.S. copyright law to restrict use of the commons as the second enclosure movement [pdf]. At broad levels, this is an argument that individual use of information is necessary and perhaps even inherent (an argument I myself have made in at least some form here, but on a different premise).
This idea is ingrained in the American pyschy. It's led a lot of people that I really respect to say things that, to me, made a lot of sense. But then I moved here [more specifically here to teach things like this here]. And the perspective from this side of the ocean has made me see how much I had bought into some basic and unstated assumptions about the nature of copyright. And since this is something I think about (the nature of copyright and information ownership, that is), I've become more intrigued as posts have gone up recently surrounding these issues.
Within this "shrinking of the public domain" thread of discussion, Mary Hodder at BiPLaW picked up on the Cory Doctorow/me discussion over the "postman whistling" licensing issue (she actually picked up on it in a rather timely way; my response here is very, very late). And her response is the one I would have had not one year ago:
- I can't help thinking that it's utterly ridiculous that we are even discussing whether the Post Office need obtain licensing for postmen whistling tunes while working. I mean, what is the point here, what is the idea, what is the need? The postman is on duty, walking down the street, delivering mail, not performing on stage for money. He's entertaining himself. Is it the fact that he's singing while on duty, and there's the possibility of obtaining some sort of fee from his employer? Is it a desire for money, or a desire to control the content? I realize the statement is that licensing is unnecessary, but if they are thinking about it, it means they have some concern, the issue has come up, someone somewhere expressed a desire to control or profit on postmen whistling or someone somewhere thought they might violate a very tight reading of the copyright laws. The fact that this has to be clarified officially, formally, demonstrates how far tilted incumbent content control has become.
- "There is no general private right of use in copyrighted works," the British scholar would say.
"What's that?" you say, mixing again the appropriate amounts of incredulity and indignation.
"That's right," would come the response, "in the UK, there is not -- and has not been -- a private use right. It just hasn't existed. Why should one person be able to use another person's work, their property, without the owner's permission? The postman 'whistling' the song is using the song creator's property, and any use, even private, is use."
So what's different in UK law as compared to US law? A provision (constitutional or otherwise) allowing general private use. The limited private use rights in UK law are explicitly defined. Fair use as it is understood in the US doesn't exist in the UK; the exception here is called "fair dealing," and it's just much more limited than fair use is. It's been that way; Section 6 of the Copyright Act 1956 (unfortunately not available on the Web), included fair dealing exceptions only for private study, review and criticism, reporting, and a few other esoteric things (like reading a short excerpt from a book in public). The Copyright, Designs, and Patents Act 1988 carries those provisions forward. There's nothing essentially new in it. And what was in the 1956 Act was carried forward from Acts prior to that (actually, finding repealed versions of law here in the UK is a royal pain in the neck, pardon the pun).
Absent being within one of the stated exceptions, there is no private use right. This is not a new development; it's not a result of Disney (however much I'd like to blame them). Go back to the Statute of Anne . . . works subject to copyright protection are called "property." This is not a new conception on this side of the pond. It hasn't been hard fought by modern content industries trying to consolidate power. It's been here: Copyright law protects someone's property. You may disagree with the theory behind it, you may object to the classification, but you really can't argue with the fact that it's been here (in England) for a long time, and that once we admit this fact, it changes the nature of the discussion. If copyrighted works are someone's property, then use of them is use of someone else's property. Again, you don't have to agree with this to see that it is generally accepted here, and law and policy have been made that accept it clearly as a premise. England is not the U.S., where considerations of freedom of expression have predominated since the founding of the republic. Here, copyrighted works are property, and they are protected, conceived of, and understood as such.
So what does this mean? The notion of copynorms might help [those being informal attitudes about the rightness or wrongness of duplicating material that is copyrighted--see also, Wikipedia's definition here]. Copynorms in the U.S. are often intricately intertwined with US ideals of freedom of speech; copynorms in the U.K. are premised on the notion of works as property. It's a completely different ideal. And so refrains such as "information yearns to be free" have limited application in the UK (but don't read that to allow generalization of the "no private use" to other European nations; Germany, for example, has constitutional protections for private use of information). Arguing here in the UK that "it's all about distribution" or for a concept of "normal use" are likewise a non-starters. You can't take the "copy" out of copyright here; it is about copying.
So are the English forever stuck in a world of non-use, limited creation and mini-automated-instant-micro-payments? I doubt it; but the context [history, law, norms, culture] shows us a need for the debate here to be different. What should that debate be? Should we be arguing for a commons? Arguing against further expansion of property rights (in terms of length, given that there is not much possible expansion left in terms of rights)? Arguing for greater personal autonomy? Arguing for general personal or "normal" use? That seems to be the question of the day for the UK, but it i's a very, very different discussion from one in which it is argued that personal use is being taken away, both substantively and rhetorically. As we all know, when it comes to rights, the status quo is very hard to change. And changing it, not defending it, is what must happen in the UK. Understanding this point is critical to making the debate here (and abroad about here) more useful, progressive, and forceful.
I should note here that I am not a copyright enthusiast; I believe strongly in the potential of computer processing power and network connectivity to turn consumers into users [pdf] and enhance the creative opportunities for people worldwide. I am, in that respect (and in others), a Benklerite. That said, we still need to take context into account when deciding how to proceed. I'm not sure what the next step is on this side of the pond, but I'm open to suggestions [if only our university would see fit to give us server space for this blog, we might actually be able to have comments; but for now please just E-mail me if you have ideas], but I know what the next step is not. It is not going on about how copying is not important; it is not going on about the increasing power of content providers; and it is not looking at everything through the lens of American copynorms. Taking into account English history, and particularly the history of copyright in this country, will be central to opening up use rights in the UK.
So, shall we take the next step?