IP Matters

Associated Press reporter Martha Mendoza writes how a promised satellite patent office for tech giant Silicon Valley—the top region in the world producing patents—is being denied thanks to sequestration cuts, despite the fact that patent offices are funded through patent fees, not taxpayer dollars.

It’s time once again for us to delve into the logical fallacies of Mike Masnick. Previously, we dealt with Mike committing the bifurcation fallacy. In today’s installment, it’s Mike committing the logical fallacy of begging the question.

Mike has often broadly asserted that one of the many sins of copyright is that it is used to facilitate censorship. So anytime any proponent of copyright points out how copyright facilitates the creation and distribution of speech, and thus is a friend of free speech and the First Amendment, Mike is quick to retort something like “How can anyone claim with a straight face that copyright supports the First Amendment when it is so often used for censorship!”

Like he did here, for instance.

Perhaps no other area of innovation is more critical to protect than pharmaceuticals and medical technology. But a piece today in Forbes by Eli Lilly's CEO discusses how a trend in Canadian courts may be threatening drug innovation by invalidating therapies and medicines already in use by patients on a wide scale.

Lechleiter writes:

“Canadian courts have arbitrarily created – and retroactively applied – a standard for what is ‘useful’ under Canadian law. Applying the ‘Promise of the Patent Doctrine,’ the courts have set a standard found in no other developed country, and one that is more or less impossible for an innovative pharmaceutical company to consistently meet.”

Not going to do a full dissertation on the topic, but the term "patent troll" is being thrown around quite a bit too broadly these days. For many, ANY non-practicing entity is, by their definition, a patent troll.

We think this is ridiculous. There is nothing wrong with an entity simply being in the patent business. Whether or not some entity is a "patent troll" should be determined by their behavior, not simply by their business model.

What brings this to mind? Noticed a patent application published by USPTO on July 25th, filed by Intellectual Ventures. If you're in the business of inventing things and filing patent applications, you are not a patent troll.

Why did I happen to notice? Well, the application has some very prominent names listed as inventors, including Bill Gates and Nathan Myhrvold. Those are names that stand out.

I'm probably going to regret the title of this blog post, not because I'm afraid to say that Mike Masnick committed a logical fallacy, but because he commits logical fallacies so often that I should reserve this title for a SERIES of blog posts . . . 

[Note: Title edited]

Anyway, a few weeks ago I did a blog post on the House IP Subcommittee's second hearing of the new copyright review process, this one themed copyright and innovation.

My main point was that there was actually very little criticism of the copyright status quo during the hearing, but you can read that blog entry for yourself.

My blog post aroused the ire of Mike Masnick over at TechDirt, which they often do (and which frankly isn't hard to do). But the nature of Masnick's complaint about my post was truly amazing, as Masnick made really obvious logical fallacies in supposedly rebutting my points.

This item is from a few weeks ago, but Rep. Marsha Blackburn (R-TN) had a good piece in The Hill where she calls for stronger IP enforcement action by the administration.

An excerpt:

Who is going to take the U.S. seriously if we continue to deny a performance right for sound recordings as the rest of the developed world already does? We’re in a league with North Korea, Iran and China that still fails to recognize these rights. Will other countries take advantage of U.S.-based innovation if we aren’t willing to take reasonable actions against foreign-based rogue websites that threaten U.S. health and safety?

We continue to allow 25 percent of all Internet traffic to go to illegal rogue websites. It helps criminal enterprises thrive but it kills American business and hurts consumers. Creators benefit from the certainty of consistent and strong enforcement.

In today's copyright review hearing, in the heat of his passion to point out that there are many exciting new ways to distribute content that don't involve nasty old paternalistic devices like copyright, one of the witnesses mentioned how enthusiastic the bands Radiohead and Nine Inch Nails are for free distribution.

Um, you might want to update your gallery of CopyLeft heroes, according to an article entitled "Radiohead, Nine Inch Nails, and other digital pioneers sour on 'pay what you want' music":

Not long ago, many hoped the Internet would emerge as a music fan's Shangri-la, a utopian world where any track, no matter how obscure, was available for free, record labels were extinct and artists made a good living because their fans chose to reward them. Acts like Radiohead and Nine Inch Nails championed this brave new world. "The way things are," Trent Reznor, Nine Inch Nails' frontman, told CNET in 2008, "I think music should be looked at as free. It basically is. The toothpaste is out of the tube and a whole generation of people is accustomed to music being that way."

But that dream has turned into a nightmare, according to Radiohead frontman Thom Yorke.

There's a strong and provocative piece in the Australian press today by novelist and author Linda Jaivin on how the proposed changes will cause economic losses to authors.

Jaivin writes powerfully and persuasively about the importance of intellectual property protection for creators. The occasion of her piece is proposed Australian legislation that would remove some author protections in the form of statutory licenses, and in the course expands Australia's fair use exceptions.

Over the last several years the U.S. patent system has received a great deal of attention. However, patent pools, one area that was previously largely ignored, are now coming under greater scrutiny.

This morning, the House Subcommittee on Courts, Intellectual Property, and the Internet held its second in a series of hearings that form the beginning of a review of current copyright law. And while the first hearing was largely comprised of copyright critics, today’s hearing featured those who make their livings and who are innovating new technologies based on the copyright system.

Along those lines, of particular interest was witness William Sherak, whose company handles the 3D conversion of blockbuster movies. In addition to getting committee members to don 3D glasses, Mr. Sherak pointed out that both the technology his company developed and the workers he employs are all dependent upon the copyright system.

The list of witnesses for Thursday's Judiciary Committee hearing on copyright and innovation has been released:

Sandra Airstars
Executive Director, Copyright Alliance

Eugene Mopsik
Executive Director, American Society of Media Photographers

Tor Hansen
Co-Founder, Yep Roc Records/Red Eye Distribution

John Lapham
General Counsel, Getty Images

William Sherak
President, Stereo D

Webcast link: http://judiciary.house.gov/hearings/113th/hear_07252013.html

Reporter Claudia Kienzle cites IPI’s copyright piracy study in a comprehensive piece, "What is the cost of free?" examining efforts to curtail online copyright infringement in the June/July issue of Streaming Media Magazine.

We've just gotten word that the next hearing in the Judiary Commitee's series of hearings on copyright review has been scheduled for next Thursday, July 25, at 9:30 am in 2141 Rayburn. The theme of this hearing is "Innovation in America: The Role of Copyrights."

A good theme. In fact, that would have been a pretty good theme for the FIRST hearing in this series, instead of the near waste-of-time topic that occupied the first hearing. But I've already ranted about that . . . 

While the House Judiciary Committee is certainly busy with a raft of issues these days, sooner or later they will continue to hold hearings about the copyright system in the U.S., considering how it works in an age of rapidly advancing technology, business models, an ever growing pool of content and new means to access that content.

This week marks the initial negotiating session for the new Transatlantic Trade and Investment Partnership (TTIP) agreement, which is a new free trade agreement between the U.S. and the European Union. And IPI will be there.

Like most trade agreements, the goals include lowering tariffs, but because the E.U. countries are for the most part advanced economies, there will be more focus on technical regulations, standards and certifications—all designed to make it easier to sell and ship goods between the U.S. and the E.U.

There’s nearly a $trillion per year in trade between the U.S. and the E.U., but the barriers are such that both sides of the agreement think there are $billions in savings to be achieved by lowering tariffs and otherwise making it easier to do business across the pond.