August 29, 2003  ·  Lessig

The Stanford CIS has been working on a case for a long time to establish the public domain status of Peter Pan. (The Internet has apparently already recognized it. Check out the Google search on Peter Pan). We represent a Canadian author, Emily Somma, who has written a sequel to the public domain portions of the Peter Pan story, called “After the Rain.” Somma was threatened by the rights holders of the Peter Pan-related work still under copyright. The essence of their claim is that so long as anything Peter Pan related is under copyright/trademark protection, everything is. (The rights holder is a children’s hospital in England, which has meant (1) that service of our complaint has been severely delayed by the UK government, and (2) that we get lots of nasty letters from people who think a charity should have the right to do whatever it wants so long as it benefits children. I’m all for charities, and especially for charities benefitting children, but threatening an author who is simply building upon the public domain is not the stuff a charity should be doing.)

ANYWAY, while practicing my Danish (not really: I am totally language illiterate) I came across another wonderful example of this increasing practice.

According to this story, there’s a Danish character called “Gummi-Tarzan” (I think this is an image) that has been forced to drop “Tarzan” from its name by the ever-pleasant Disney Corporation. This because Disney believes it owns “Tarzan.” This because Disney has trademark protection in a bunch of Disney work that builds upon Edgar Rice Burrough’s “Tarzan,” even though Burrough’s Tarzan originates from 1914, and is therefore within the public domain. Nonetheless, from now on, Gummi-Tarzan must be referred to as Gummi-T.

The public domain was supposed to be a lawyer-free zone. So much for how things were supposed to be. (Thanks to Joergen Ramskov and Thomas Wesley Hinton for porting the story into a form that the I could understand.)

August 29, 2003  ·  Lessig

The battle against software patents is coming to a head in the EU. (Not that much of the support for software patents has come from the head.) As these articles (News.com, TheRegister, and Slashdot) describe, the battle has become quite heated, with the side of right not expected to prevail.

A large number of F/OSS-related sites are shutting down because of the move. See, e.g., Gimp. And those amazing Europeans are actually marching in the streets about this threat to the freedom to innovate.

That there is a threat would be more obvious to WIPO and the US government if it didn’t spend its efforts working to remain ignorant about the importance of balance in intellectual property law. But I understand, they’re very busy, those regulating sorts. So here’s perhaps the most concise and compelling account of just why software patents will harm new innovators (that’s you Europe) and benefit old innovators (that’s America), written in 1991 by Mr. Gates:

“If people had understood how patents would be granted when most of today�s ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution . . . is patent exchanges . . . and patenting as much as we can. . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.” Fred Warshofsky, The Patent Wars 170-71 (NY: Wiley 1994).

Perhaps the F/OSS sites should take more advantage of this unique opportunity for them to quote the wisdom of Mr. Gates.

August 27, 2003  ·  Lessig

Ed Black of the Open Source and Industry Alliance has written Ms. Lois Boland a very nice and good letter about the recent statements about “open source.”

Meanwhile, there’s much reporting that Microsoft is behind the lobbying to kill the WIPO meeting. I don’t know anything about that (for some reason, I’ve been removed from Mr. Gates’ lobbying-strategy list). But it is useful to contrast the sophisticated, moderate, and well-informed work of Microsoft’s GC, Brad Smith, about “open source” software, recently published in a Joint AEI/Brookings book.

In addition to Ed Black’s letter, and perhaps letters from you, she might find Brad Smith’s essay useful.

August 26, 2003  ·  Lessig

The recording industry has been strongly opposed to a statutory or compulsory license for digital music (not the Internet radio kind, but a reasonable kind that would enable the spread of digital content). They object that “the market” should set the rate for music, not a federal statute. (Of course, they have no hesitation appealing to the statutory rate for damages, as opposed to the ordinary market measure for damages, when it comes to a breach, but that’s a separate matter).

But the history here is fun. Here’s a quote from a 1967 House Judiciary Report, considering a modification to the law as it existed then:

[T]he record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

Copyright Law Revision, Committee on the Judiciary, 90th Cong. 1st, Sess., Rep. No. 83 66 (March 8, 1967).

“The result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.”

Nicely put.

(Thanks to Glenn Brown for drawing my attention to this report).

August 26, 2003  ·  Lessig

So like bored guests at a dinner party, everyone seems keen to change my subjects. (If I believed in smileys I’d insert one here, but I don’t.) So ok, let’s talk about what YOU want to talk about.

As you likely know, the Supreme Court of California has held that a preliminary injunction in a trade secret case does not necessarily violate the first Amendment. The decision was in the context of deCSS code that enabled the decryption of CSS protections for DVDs. The opinion is here and worth a read.

Two points, one annoying and one important.

Annoying first: Gaggles have written me asking how is it that if “code is speech” the First Amendment doesn’t guarantee that code can’t be regulated? This is an argument that has been around for a long time, and its staying power is something I don’t quite get. Sure, code is speech. But why do you think speech can’t be regulated? Mickey Mouse is speech. But just try posting copies of Mickey Mouse films without Disney’s permission, and you’ll see how far that gets you. The truth is, the Constitution notwithstanding (“Congress shall make no law…”), Congress (and states) make law all the time regulating speech. Thus, calling it speech is just a first step in the analysis. The real question is what burden the government must bear in justifying the regulation.

Important second: The court assumed a bunch of important facts. In particular it assumed:

“First, the court concluded that the CSS technology contained protectable trade secrets because it derived independent economic value from its secrecy and because DVD CCA made reasonable efforts to maintain its secrecy. Second, the court found that Johansen had obtained these trade secrets through reverse engineering in violation of a license agreement and therefore acquired these secrets by improper means. Third, the court found that the defendants, including Bunner, knew or should have known that Johansen acquired these trade secrets by improper means when they posted DeCSS on their Web sites. Fourth, the court held that the trade secret status of the CSS technology had not been destroyed because it had been posted on the Internet.”

But the Court goes on to say (unanimously) that it was wrong for the District Court to simply assume these facts. Indeed, it was the duty of the District Court to independently determine whether each of these facts was true. If any of these facts is not true, then as a matter of trade secret law, there is no right to a preliminary injunction.

August 25, 2003  ·  Lessig

Tony Auth is a favorite cartoonist of mine. In 1981, he drew a cartoon in response to the 9th Circuit Court of Appeals’ decision in the Sony v. Universal case (the Betamax case). In that case, the Court of Appeals had held that the VCR was an infringing technology. Auth’s cartoon captured the silliness of this perfectly: In a single frame, there was a VCR and a handgun, and the caption read (something like) “Which of these is illegal in California?”

I’m trying to clear permissions to use this cartoon. The people who handle Auth’s rights can’t locate the cartoon I’m speaking of. Does anyone have a memory of seeing this somewhere?

August 22, 2003  ·  Lessig

The thread about Ms. Boland’s (mis)characterization of open-source software (remember the days when statements were either true or false?) reminded me of an odd fight I found myself in the middle of at the World Summit on the Information Society (WSIS) in Geneva in February.

I was asked to give one of three keynotes launching the second preparatory conference. At a press conference before the keynote, a reporter asked what I was going to talk about. I indicated vaguely I would discuss the importance of the public domain to innovation, etc. (same old boring stuff). But I was then astonished when the moderator of the event, Maria CATTAUI, Secretary-General of the International Chamber of Commerce, scolded me that issues of “intellectual property” were not to be discussed because they were “exclusively” the concern of WIPO.

I promptly threw away the talk I had intended to give, and gave a completely different talk about how — Ms. Cattaui’s scolding notwithstanding — it was crucial that a summit on the world “information society” consider the role of the public domain in spreading knowledge and culture even if WIPO claimed exclusive jurisdiction of the matter. That assured I won’t be invited back to WSIS anytime soon (or at least by Ms. Cattaui).

It is therefore extraordinary now that people purporting to speak for WIPO would say that WIPO too is not to consider issues about the public domain. Neither at WIPO, nor at WSIS, nor apparently anywhere. Except among us commies I guess. (Fellow travelers, for our next secret communist meeting, be sure to read the latest great work by some of the most prominent IP commies out there. Linked here.)

August 22, 2003  ·  Lessig

I don’t even know how to begin this story, so stupid and extreme it is.

The World Intellectual Property Organization (WIPO) was convinced by Jamie Love and others to hold a meeting about “open collaborative models to develop public goods.” One of those models is, of course, open source and free software. Lobbyists for Microsoft and others apparently (according to this extraordinary story by Jonathan Krim) started lobbying the US government to get the meeting cancelled. No surprise there. Open source and free software is a competitor to MSFT’s products. Lobbying is increasingly the way competition is waged in America.

But the astonishing part is the justification for the US opposing the meeting. According to the Post, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said “that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.” As she is quoted as saying, “To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.”

If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment. First, and most obviously, open-source software is based in intellectual-property rights. It can’t exist (and free software can’t have its effect) without it. Second, the goal of WIPO, and the goal of any government, should be to promote the right balance of intellectual-property rights, not simply to promote intellectual property rights. And finally, if an intellectual property right holder wants to “disclaim” or “waive” her rights, what business is it of WIPOs? Why should WIPO oppose a copyright or patent rights holder’s choice to do with his or her rights what he or she wants?

These points are basic. They should be fundamental. That someone who doesn’t understand them is at a high level of this government just shows how extreme IP policy in America has become.

August 21, 2003  ·  Lessig

One of the most frustrating aspects of Eldred was the crudeness, in many places, of the legal anaysis by the government, and courts. Distinctions that should have been important were ignored or glossed over. Arguments making distinctions that should have been important were just glossed over.

It is therefore extraordinarily encouraging to read this by the Court of Federal Claims in the case of Figueroa v. US. Judge Futey is exceptionally careful and subtle in his analysis of the claim about patent fees. I don’t know enough about the non-Eldred parts here, but the constitutional analysis is very well done.