Thursday, March 24, 2005
MGM v Grokster: the Free Software Foundation
First things first. I realized that my plan of coming back to Copyright last is a good one, if only because I don't have all the references with me. William Fisher's book Promises to Keep has a chapter titled "Taking Property Rights Seriously." I had wanted to use parts of that. It's sitting on a shelf in my room in Chicago. I'm not in Chicago. This makes it difficult to cite from it.
Another advantage is that there are at least two timely examples I can use for Trade Secrets. Starting there will make those more useful. With any luck, I'll get that together and posted before returning to Chicago.
I was cleaning things up on my laptop, and found a couple of briefs from the Grokster case sitting there. I realized I hadn't had a chance to read them, so I read them. I was annoyed at myself about the first one, because I could have used it for a paper, had I read it a week ago. But then I look at the Free Software Foundation's brief. They have a couple of quite awesome footnotes. First, in the middle of dicsussing why independent filmmakers might want to use P2P networks to distribute their works:
It's funny, because these independent filmmakers are in competition with the larger companies. MGM, et al have this obvious financial interest in destroying this technology that they don't mention to the Court.
Later, discussing why Congress should handle this question, instead of the courts:
In Sony, the movie studios were making largely the same arguments that they are making here. After the Court refused to ban Sony's Betamax machine, the studies adjusted their businesses to profit from the market the Betamax created. This is the very market they are so concerned about today.
Another advantage is that there are at least two timely examples I can use for Trade Secrets. Starting there will make those more useful. With any luck, I'll get that together and posted before returning to Chicago.
I was cleaning things up on my laptop, and found a couple of briefs from the Grokster case sitting there. I realized I hadn't had a chance to read them, so I read them. I was annoyed at myself about the first one, because I could have used it for a paper, had I read it a week ago. But then I look at the Free Software Foundation's brief. They have a couple of quite awesome footnotes. First, in the middle of dicsussing why independent filmmakers might want to use P2P networks to distribute their works:
Being an oligopoly, petitioners are understandably shy about indicating in their presentation to this Court that the technology they are seeking to eliminate as contributing to infringement lowers the most important barrier to entry faced by their competitors.
It's funny, because these independent filmmakers are in competition with the larger companies. MGM, et al have this obvious financial interest in destroying this technology that they don't mention to the Court.
Later, discussing why Congress should handle this question, instead of the courts:
An irony that seems to escape petitioners is that the non-theatrical market they claim respondents’ computer software inappropriately threatens to deprive them of is the market that came into existence as a result of the videocassette recording technology they were suing to prohibit in Sony. Not only is Congress better than the Court at making predictive determinations in this area: it appears that it is also better than petitioners themselves.
In Sony, the movie studios were making largely the same arguments that they are making here. After the Court refused to ban Sony's Betamax machine, the studies adjusted their businesses to profit from the market the Betamax created. This is the very market they are so concerned about today.
Tuesday, March 22, 2005
Intellectual Property -- Generally
During a St Patrick's Day get-together, Connor mentioned his ambivalence regarding Intellectual Property. This doesn't surprise me, for a couple of reasons. Some have to do with Connor himself, but I'm more interested in the more general reasons. There are several significant political and philosophical traditions in this country: ... . None of them really seems to have a good resolution to the problems posed by Intellectual Property. An adherent to any given political philosophy could come to nearly any conclusion regarding Intellectual Property, and justifiy that conclusion using that political philosophy.
Past posts about Copyright have largely assumed my own opinions on the current state of the field. Connor's comment suggested he wanted to discuss it at a more fundamental level. Nora and I were just leaving at that point, though. So let's start from scratch. The rest of this post will be the summary version of Intellectual Property. It will be the first in a continuing series. It will also help organize my own thoughts, and force me to explain and justifiy them better.
The first thing to point out is that the phrase "Intellectual Property" is a metaphor; a bad one, in my opinion, though there is some truth to it. Lawrence Lessig's book Free Culture has a footnote about this in Chapter One:
"Property" in the sense that the rights that attach to intellectual property are similar to the rights that attach to real property. But the metaphor refers to four classes of objects that are widely different. You can't claim a copyright on most of the things you can claim a trademark on. You can't claim trade secrets protection on something you're also trying to claim a patent on.
The next few posts will describe each in turn, in more detail. They are ordered by the extent to which I've studied them, from most to least. This is also (perhaps not coincidentally) the order of complaints I have about the current state of each field, from most complaints to least. I will probably give each area a brief overview, in reverse order.
Past posts about Copyright have largely assumed my own opinions on the current state of the field. Connor's comment suggested he wanted to discuss it at a more fundamental level. Nora and I were just leaving at that point, though. So let's start from scratch. The rest of this post will be the summary version of Intellectual Property. It will be the first in a continuing series. It will also help organize my own thoughts, and force me to explain and justifiy them better.
The first thing to point out is that the phrase "Intellectual Property" is a metaphor; a bad one, in my opinion, though there is some truth to it. Lawrence Lessig's book Free Culture has a footnote about this in Chapter One:
The term intellectual property is of relatively recent origin. See Siva Vaidhyanathan, Copyrights and Copywongs, 11 (New York: New York University Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: Random House, 2001), 293 n. 26. The term actually describes a set of "property rights" -- copyright, patents, trademark, and trade-secret -- but the nature of those rights is very different.
"Property" in the sense that the rights that attach to intellectual property are similar to the rights that attach to real property. But the metaphor refers to four classes of objects that are widely different. You can't claim a copyright on most of the things you can claim a trademark on. You can't claim trade secrets protection on something you're also trying to claim a patent on.
Copyright: "subsists" in any creative work. Books, movies, music, computer programs, art, etc. If the author is a natural person, the copyright lasts for the life of the author plus 70 years. If the author is a corporation, or the work was comosed "for hire," the copyright lasts for 95 years.Patents: "nonobvious" inventions. Requires an application, which must be approved by the Patent Office. Once granted, the patent lasts for 20 years from the date of the initial application.Trademarks: marks used to identifiy the source of goods or services. Duration and geographical extent determined solely by use. Can last forever.Trade Secret: information about the operation of a business. The business must make some minimal effort to maintain the secrecy of the information. Can last forever.
The next few posts will describe each in turn, in more detail. They are ordered by the extent to which I've studied them, from most to least. This is also (perhaps not coincidentally) the order of complaints I have about the current state of each field, from most complaints to least. I will probably give each area a brief overview, in reverse order.
Monday, March 14, 2005
Visual Studio
Steven and I are selling one (1) copy of Microsoft's Visual Studio, version 2002. We have all the discs. this page indicates that the retail is $99.95. We'll round that up to $100.00 even, and call the remaining $0.05 part of the "Steven and Colin Destroy Microsoft Legal Defense Fund."
I feel compelled under the Lanham Act to point out that we have no association whatsoever with Microsoft. I also feel compelled to point out that the EULA says nothing regarding the First Sale Doctrine. This is entirely legal, Microsoft's protestations to the contrary. Maybe they should retain more competent legal counsel.
I feel compelled under the Lanham Act to point out that we have no association whatsoever with Microsoft. I also feel compelled to point out that the EULA says nothing regarding the First Sale Doctrine. This is entirely legal, Microsoft's protestations to the contrary. Maybe they should retain more competent legal counsel.
