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Larry Lessig: All "property" is imaginary

Posted by Tom Giovanetti | Comments | October 19, 2016

Larry Lessig is a well known critic of intellectual property protection, such as copyright and patents. But Larry has always claimed to believe in the basic idea of intellectual property; he just thought it all needed to be "reformed," by which he always seemed to mean "rendered impotent."

Well, a couple of days ago, Larry made a little Freudian slip on Twitter. Or perhaps it was entirely intentional. Regardless, it's instructive.

@thrashRadical @girlziplocked all “property” is imaginary. Some just gets your hands dirty.

— Lessig (@lessig) October 7, 2016Read More >>

Is the SEC's Money-Market Rulemaking Designed to Discriminate Against Private Sector Debt?

Posted by Tom Giovanetti | Comments | October 6, 2016

In a few weeks we have another policy change coming out of Washington—this time new regulations on money market funds—that seems almost intentionally designed to cause harm to the private sector and to slow economic growth. I’m starting to wonder whether this is simply more Big Government incompetence or something more insidious?

I tend to attribute most failures of government to ineptitude rather than conspiracy. There’s no reason to think the average government employee is any wiser or more knowledgeable than the average person in the private sector—in fact, there’s every reason to believe otherwise, since various federal protections make it harder to weed out incompetent federal employees.

But suppose for a moment that I am wrong—that at the highest levels of the most important federal agencies, there are actually devilishly clever people playing the game several moves ahead of the rest of us. Making moves that are vital to the survival of their most cherished and most useful institution—the federal government—regardless of the impact on the American people.

That scenario might be more probable or less probable, depending on your degree of cynicism, but it hinges on a defensible premise—that the interests of the federal government and the interests of the American people are NOT the same thing. The federal government is not a proxy for the country. As Ronald Reagan said in his first inaugural address, “We are a nation that has a government—not the other way around.” It’s said that the smartest thing the Devil ever did was convince people he didn’t exist. Well, the smartest thing the federal government ever did was convince the American people that its interests are their interests. The truth is, the federal government is the most powerful special interest in America.

So if you’re the federal government, what is your greatest threat? Not war or terrorism, because war and terrorism have proven to be windfalls for federal government growth. Almost certainly the single most important institutional concern of the federal government today is managing its own debt, which has risen to an unimaginable $19.4 trillion dollars. Interest alone on the debt is now one of the largest line items in the federal budget, and so servicing its debt and avoiding insolvency is as important to the federal government as it would be to any business or household. Read More >>

So It Turns Out That Trade Agreements ARE in America's Best Interests

Posted by Tom Giovanetti | Comments | September 20, 2016

We’re in a political environment right now where, stunningly, in a very short period of time, free trade and the treaties that liberalize trade have gotten a bad rap. Read More >>

IPI's Advocacy on Municipal Broadband Networks: A 12-Year Update

Posted by Tom Giovanetti | Comments | September 12, 2016

A couple of weeks ago, back on August 29th, the Federal Communications Commission (FCC) once again lost a major case when the US Court of Appeals for the Sixth Circuit ruled unanimously in favor of the states and against the FCC’s brazen attempt to overrule state laws regulating municipal (government-owned) broadband networks. Read More >>

When Academics Try to Silence Debate

Posted by Tom Giovanetti | Comments | August 1, 2016

The policy problems with FCC Chairman Tom Wheeler’s set-top box proposal are many—the majority of which have nothing to do with set-top box competition issues—from consumer privacy to cybersecurity to energy consumption. But the concern that seems to have resonated the most is the proposal’s brazen disregard for copyright—constitutionally enshrined intellectual property rights that help provide the foundation for American creativity and the cultural and economic benefits they bring our nation.

Wheeler's proposed rule would force pay-TV providers to transmit copyrighted content to third parties without obtaining the consent of the copyright holders, allowing the third parties to appropriate that content for their own commercial benefit and undermining the ability of programmers to create television and film content in the first place. 

Almost from the moment Chairman Wheeler announced his set-top proposal, it has been teetering over an abyss in the face of near unanimous opposition, including from small and large programmers, civil rights groups, television and film unions, individual creators, more than 180 Democrats and Republicans in the House and Senate, and a bipartisan triumvirate of Chairman Wheeler’s own fellow commissioners. Read More >>

Some Internet Language We'd Like to See in the GOP Platform

Posted by Tom Giovanetti | Comments | July 11, 2016

Here's some language we'd like to see in the appropriate section of the GOP platform. In case anyone's interested:

The Internet is a platform for disruption, allowing individuals, private enterprises and entrepreneurs to communicate and engage in commerce in new ways, breaking down walls of distance, size and established power.  Regulators and tax collectors, threatened by the disruptive Internet that empowers people and private businesses, are pushing for their powers to regulate and tax to grow in the same way, across borders and reaching every corner of the Internet.  The Republican Party should consistently support Internet policies that allow people and private enterprise to thrive, without providing new and expanded powers to tax and regulate so that the Internet does not become the vehicle for a dramatic expansion of government power.  Maintaining fundamental principles of limited government in an increasingly Internet-enabled world is a critical role for the party that puts people ahead of government bureaucracies and regulators. Read More >>

The Moral and Logical Vacuity of the Anti-Patent Crowd

Posted by Tom Giovanetti | Comments | June 17, 2016

Now, any clown can come up with an example of a bad patent. Priti has the nerve, however, to use Sovaldi as her example, which is where we are going with all of this.

What is Sovaldi? Sovaldi is a CURE for Hepatitis-C. It’s a revolutionary medicine. First you had Hep-C, and you suffered and you died early. Now, with Sovaldi, you can be cured of Hep-C.

I emphasize this because, before Sovaldi, the critics of the pharmaceutical industry were bashing the industry because it allegedly was focusing on lifestyle drugs for the rich West rather than trying to cure the diseases that plagued millions of people. Greed rather than trying to actually cure diseases. Then Sovaldi comes along and inconveniences their argument.

But you’ve got to hand it to Priti. She has nerve—almost certainly more nerve than you or I have. Because Priti can write something like this:

“We have evaluated Gilead’s patent portfolio and found that, based on US and international patent law, Gilead does not deserve any of its 27 patents for Sovaldi. Both the base and secondary patents for the drug are based on old science and commonly known techniques.”

Really? So there’s no cure for Hep-C. Someone invests millions of dollars and years of expertise and actually manages to invent a cure for Hep-C, but they’re not entitled to a single patent for such a revolutionary invention? Read More >>

Needed: Global Sugar Trade Liberalization, not Just a "Shakeup"

Posted by Tom Giovanetti | Comments | May 27, 2016

Venture Capitalists and Copyright: Smug Alert!

Posted by Tom Giovanetti | Comments | May 11, 2016

HBO’s “Silicon Valley” has built a successful show satirizing the real Silicon Valley’s hubris and worst excesses. Many of the funniest moments follow the struggles of the protagonists with various venture capitalists who have invested in their business (Russ Hanneman anyone?). VCs – or “Angel Investors” – are the demigods of Silicon Valley. Their decisions can make or break companies. As such, they hold a special place in tech circles and their opinions are given a lot of deference.

It’s this VC worship that likely led Silicon Valley-backed intellectual property skeptic advocacy group Engine to commission a 2014 survey of investors (and law firms that advise them) concluding VCs may be less likely to invest in “digital content intermediaries” (firms like YouTube) if the company were exposed to legal risk for copyright infringing content on their sites.

The notion that investors account for legal liability as they choose their investments isn’t insightful or new. And the idea that a VC might choose not to invest in a new business built on facilitating access to unlicensed copyrighted content shouldn’t be either.

This “innovation at all costs” mentality, which seems to fuel the Engine report, reminded me of a 2013 Wired article discussing Silicon Valley’s “threadbare nature of digital exceptionalism.”

The undue emphasis placed on entrepreneurship, combined with a limited view of who “counts” as an entrepreneur, functions to exclude entire categories of people from ascending to the upper echelon of the industry. And the ideal of authenticity privileges a particular type of self-presentation that encourages people to strategically apply business logics to the way they see themselves and others.

Why Did You Vote for Donald Trump?

Posted by Tom Giovanetti | Comments | May 4, 2016

Q. Why did you vote for Donald Trump instead of Ted Cruz?

A. The whole establishment is corrupt. The whole Republican Party is corrupt. I’m done with them. Donald Trump isn’t beholden to anybody—not the establishment, not the lobbyists, not the crony capitalists. He will look out for the people and do what’s right for America, not what’s right for Wall Street. He can do it all by himself.

Q. Why do you conclude the Republican Party is corrupt? They agree with you on almost every issue.

A. They said they were going to get rid of Obamacare but they didn’t. They said they were going to fix immigration but they didn’t. They let Obama get away with executive orders, and they didn’t investigate Benghazi or the IRS or Hillary’s email scandals. They signed a budget deal with Obama instead of cutting spending. They all suck.

Q. Actually, they DID investigate Benghazi, and the IRS, and Hillary’s email scandals (though they wisely deferred to the FBI on that one). They voted to overturn all or portions of Obamacare like 60 times.  And the budget deal held spending below Obama’s budget AND locked in the Bush tax cuts PERMANENTLY.

A. Yeah, but what came of it? NOTHING! We voted them in and they didn’t get a thing done. I’m through with all of them. They betrayed us.

Q. You do understand that, to pass laws, House Republicans had to get the agreement of the Senate, which was in Democrat hands for the first part of the Obama administration, and of course they had to get Obama’s signature. You can’t change the law without getting the President’s signature. You know that, right?

A. They should have forced change from Congress. They should have shut the whole place down until the Senate and Obama were forced to overturn Obamacare, cut spending, and throw Hillary in jail. They should have refused to pass the spending bills and just shut the whole thing down until we got our way.

Q. You do realize that the only person in Washington who actually followed that plan was Ted Cruz, right? Ted Cruz is the guy who tried to shut down the government. And you just voted against him. You voted against the only person who actually agreed with you on the issues and the strategy.

A. Um . . .  Read More >>

New Xfinity TV App Demonstrates Irrelevance of FCC's "AllVid" Rulemaking

Posted by Tom Giovanetti | Comments | April 20, 2016

One argument against the FCC’s recently announced “AllVid” plan to regulate and “open up” the video set-top box is that set-top boxes are NOT a natural monopolistic platform that must be regulated by government in order to allow competition – in fact, set-top boxes are on the verge of being phased out and replaced by a variety of innovative new options. Apple TV, for instance, is an example of innovative new hardware for video access. But even a look at Apple TV lets you quickly see the real future of video access – apps. Put simply, in the normal course of innovation responding to consumer demands, set-top boxes are being replaced by apps on smart TVs, mobile and streaming devices. There may never be a better example of government regulation being behind the pace of innovation.

And today, Comcast announced its Xfinity Partners Program, which will allow Comcast customers to access their Xfinity content through a variety of devices and platforms using an Xfinity TV Partner app. Samsung and Roku have already joined the program, which means Comcast customers simply won’t need a set-top box if they own one of the new Samsung or Roku devices featuring the Xfinity TV app.

Seeing Comcast join the impressive number of over-the-top video providers who allow access to their content through apps demonstrates that the FCC’s AllVid rulemaking is not a response to a problem in the marketplace. The FCC has also done no economic analysis whatsoever to justify its scheme. Nevertheless, the FCC is pushing the Allvid scheme very aggressively with shortened timeframes for comments and public input.  One has to wonder what, exactly, is the FCC trying to accomplish? And why the rush?

Meanwhile, industry continues at the speed of innovation while the FCC regulates looking backward. Read More >>

Trump's Drug Reimportation Scheme Would Open Americans to Huge Risks

Posted by Erin Humiston | Comments | March 4, 2016

The TPP, Conspiracy Theories and Click-Bait

Posted by Tom Giovanetti | Comments | February 25, 2016

Die-hard opponents of free trade and intellectual property have plainly stated their intention to wage a smear campaign against the largest trade agreement in history, the Trans-Pacific Partnership (TPP). Their transparent and tone-deaf tactics have been lampooned as one-sided and overly simple, but still they strain to create fear and anxiety among consumers and users at every opportunity. This, despite mounting fatigue and annoyance from their own supporters. For example, Redittor “binarybandit” posted:

I've seen EFF doing this lately with the TPP bill. They've been using fear mongering to make people believe that they're seriously gonna go to prison for making a free mod for a game, or that it's gonna destroy the internet somehow. People are eating it up though.

Right on cue, the latest effort to invent controversy centers on a breathless EFF conspiracy theory – government lawyers have secretly expanded the scope of penalties for copyright infringement during a technical review of the TPP text by changing the word “paragraph” to the word “subparagraph” in a footnote. 

To be fair, it is true that this change means the footnote only applies to one part of the paragraph, and that does actually make a difference.  The paragraph at issue sets out rules for calculating and applying remedies for criminal theft of intellectual property, and the footnote allows countries to ignore those rules, except for more significant cases.  The change means only the last part can be ignored (except for more significant cases), not the whole paragraph.  Sensing an opportunity, the EFF pounces insisting there is “no rational basis” for the change.  Let’s examine that.

The very first obligation in the paragraph — where the footnote no longer applies — is that the punishment should fit the crime.  In the precise terms of the agreement, countries must provide “Penalties that include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with the level of penalties applied for crimes of a corresponding gravity.”  Now, if the footnote applied to this requirement, it would be saying that in lesser cases, the punishment doesn’t have to fit the crime and doesn’t have to provide a deterrent.  Would that make any sense to you? 

Exceptions & Limitations Harm the Creation of Culture in Developing Countries

Posted by Tom Giovanetti | Comments | February 24, 2016

I’ve just discovered the International Authors Forum (IAF), and I’m in love.

For one thing, IAF features prominently on their website and in their materials the critical text of Article 27 of the Universal Declaration of Human rights, which states:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

It drives the CopyLeft and Access to Knowledge folks crazy that the key international human rights document includes intellectual property rights as a basic human right. Yes it does. They try to reconstruct the sentence sometimes to make it sound like it means the opposite of how it is written, but they’re wrong.

I’ve tried to make some hay over the years with this fact, not only writing about it, but also getting physically accosted by activists at a WIPO meeting where I dared to read out the text of Article 27 during an IPI intervention (more here). Ah, memories.

Anyway, the International Authors Forum has a great document [PDF] on their website where authors from around the world including developing countries explain how expanding copyright exceptions and limitations would be harmful to their attempts to produce cultural products in their own markets. It’s worth your time. Read More >>

Municipal Choke Point on Innovation

Posted by Bartlett D. Cleland | Comments | February 23, 2016

The Consumer Electronics Show, hosted by CTA, is appropriately lauded for being a showcase of technology and innovation.  As they tout themselves, “For 50 years, CES has been the launch pad for new innovation and technology that has changed the world. Held in Las Vegas every year, it is the world’s gathering place for all who thrive on the business of consumer technologies and where next-generation innovations are introduced to the marketplace.”

This year the buzz around the show was even greater than usual, largely because of the promise of a connected life becoming real in so many ways—from cars, to wearables, to thermostats and home alarm systems.  Sharper pictures, bendable screens, virtual reality and the reality that your “phone” is rapidly becoming your personal “smart hub” all fought for attention inside the show.  But the most accessible innovation may have been happening off of the show floor.

This year Uber, the ride hailing app provider, was operating in Las Vegas during the show.  The impact was obvious.  The infamous hours-long taxi lines for those trying to leave the convention center were cut by half or more. This year show attendees were able to make productive use of their time instead of waiting thirty minutes or more for a cab from the hotel to the show.  As a further customer service, Uber partnered with a Dallas start-up company, Vinli, to provide riders with a Wi-Fi connection while they rode.  The entire experience of attending a trade show that attracts 180,000 visitors to Las Vegas changed for the better Read More >>

 

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