The Land Of Broken Links

Copyright is broken. Intellectual property in general has become a troll’s playground. Jump to that link to see how easy it is for extortionists to invert every rationale for a patent/copyright regime, transforming the support of innovation into simple theft.

But we knew that.

Still:  the latest outrage to hit my twitter feed gave me real pause.  It’s an example of the ease with which private censorship can manipulate the IP legal regime to disappear uncomfortable speech.  I don’t know how many of you know of the excellent site Retraction Watch, founded and run by Adam Marcus and Ivan Oransky (full disclosure — Ivan’s a friend of mine).

The site monitors the scientific and medical press to identify and discuss withdrawn research papers — its motto is “Tracking retractions as a window into the scientific process.”  The fact of retraction is occasionally a sign of genuine error, but as Ivan and Adam have documented, betting on misconduct is never a foolish option.

Georges_de_La_Tour_-_Cheater_with_the_Ace_of_Diamonds_-_WGA12334

Yesterday Ivan put up a post that differed from the usual fare of discredited research and queries about peer review or the editorial processes involved. Titled “WordPress removes Anil Potti posts from Retraction Watch in error after false DMCA copyright claim”*, the piece documents how an obscure Indian website managed to persuade Word Press to remove ten posts about former Duke University researcher Anil Potti.  As described in an Ars Technica article,

Potti first fell under scrutiny for embellishing his resume, but the investigation quickly expanded as broader questions were raised about his research. As the investigation continued, a number of Potti’s papers ended up being retracted as accusations of falsified data were raised. Eventually, three clinical trials that were started based on Potti’s data were stopped entirely. Although federal investigations of Potti’s conduct are still in progress, he eventually resigned from Duke.

By Ars Technica’s count, Retraction Watch has so far published 22 posts on the Potti case.  Ten of those have now gone missing.  Here’s Ivan:

If you went looking for ten of our posts about Anil Potti today, you would have seen error messages instead. That’s because someone claiming to be from a news site in India alleged we violated their copyright with those ten posts about the former Duke University cancer researcher who has had 19 papers retracted, corrected, or partially retracted.

The claim, as Ivan documents, is bullshit (a term of art, of course, but mine, not deployed by Retraction Watch):

If you click on any of the NewsBulet.In URLs provided in the takedown notice, you will indeed find the text — and images — from ten of our posts about Anil Potti. But as will be abundantly clear to anyone who does so that our text was placed on NewsBulet.In, not the other way around.

In other words, NewsBulet.In is violating our copyright; we are not violating theirs. That’s driven home by the fact that the site did not exist until October 2012, according to a WhoIs search. All but one of the Retraction Watch posts they cite appeared before they even existed.

Retraction Watch is on the case — neither of its two authors fell off a turnip truck recently.  But even if — when — the material gets restored to the site, the chilling power available to those who would use copyright for evil is obvious.  The assertion of bluntly false claims is hassle enough — and if it distorts or simply constrains folks’ ability to cover controversy, then the damage is obvious.

Of course, the problems with copyright (and the patent system) extend far beyond overt nonsense like that which Retraction Watch confronts today.  For a historically grounded insight into our troubles, I highly recommend Lewis Hyde’s Common as Air, in which Hyde examins what our founding fathers actually meant by the intellectual property system they advanced at the birth of the American republic. In the here and now, the problem — or at least one big one — is that it is just too damn easy to disrupt the free exchange of ideas with spurious claims, acts for which there are no consequences sufficient to offer an incentive to play nice.

I have no good idea how to dig out from this mess (though any solution that makes Mickey Mouse cry would be a move in the right direction, I think).  You?

*OK.  I’ll admit that the headline isn’t quite in the “Headless Body Found In Topless Bar” league

Image:  Georges de la Tour, Cheater with the Ace of Diamonds, 1635.

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82 replies
  1. 1
    Higgs Boson's Mate says:

    Another shade of meaning to FYWP.

  2. 2
    burnspbesq says:

    And if you are beyond the jurisdiction of U.S. courts, as newsbulet.in almost certainly is, you can do shit like this with pretty much complete legal impunity. I can visualise Potti’s “defenders” prancing around like the French knights after they fechez’ed la vache and catapulted it at King Arthur and the Knights of the Round Table.

  3. 3
    MobiusKlein says:

    @Higgs Boson’s Mate: more like FYDMCA. WP is just the middleman.

  4. 4
    Tom Levenson says:

    @MobiusKlein: ‘zactly so.

    DMCA and its big-media backers are deeply f**ked up.

  5. 5
    burnspbesq says:

    According to this nearly-two-year-old story in the Duke Chronicle, Dr. Potti hired an “online reputation manager” in 2011 to do whatever sort of obfuscation it is that such people do.

    http://www.dukechronicle.com/a.....on-manager

    Sheesh.

  6. 6
    burnspbesq says:

    Yer kiddin me: the doctor’s name put me in moderation?

  7. 7
    kindness says:

    Too early for Kill All The Lawyers jokes?

  8. 8
    burnspbesq says:

    @kindness:

    The day after you kill all the lawyers, you’ll find yourself in desperate need of one.

    Karma’s a bitch.

  9. 9
    Tom Levenson says:

    @burnspbesq: And the truth shall make you free.

    Or rather, I’ll have to do it. Paul Pierce is busy.

  10. 10

    Even his name sounds made up.

  11. 11
    Julia Grey says:

    I don’t understand.

    Is the idea that you have to take it down because it would cost you too much in legal fees to prove that it’s your own property???

  12. 12
    MobiusKlein says:

    @Tom Levenson: But what do we replace the DMCA with? I worked at a video sharing company once (not youtube) and we had to follow the DMCA procedures. My memory was that all the requests were pretty much legit – but we were small enough that we didn’t have to have an automatic system.

    We ended up also accidentally on the hook for a terabytes of bandwidth when we did not notice the massive japanese anime collection somebody had placed on our servers… We would have loved the DMCA notice then.

  13. 13
    Soonergrunt says:

    @Julia Grey: In the short term, it’s just to get these embarassing postings about you removed from the Internet. Perhaps Potti is trying to get a job somewhere?

  14. 14
    Roger Moore says:

    I have no good idea how to dig out from this mess (though any solution that makes Mickey Mouse cry would be a move in the right direction, I think). You?

    The most obvious thing is to create some kind of negative consequence for asserting baseless or fraudulent claims. Copyright holders want some kind of three strikes system where repeat violators are kicked offline. I propose something similar for false claims of violation; make a false claim too many times and you lose your ability to assert copyright.

  15. 15
    Roger Moore says:

    @burnspbesq:

    The day after you kill all the lawyers, you’ll find yourself in desperate need of one.

    I like to say that there’s a sleazy client behind every sleazy lawyer. Alternatively, lawyers don’t sue people, clients sue people.

  16. 16
    joes527 says:

    So, it looks like newsbulet.in was a complete fabrication. They were typo-squatting newsbullet.in

    The site now redirects to newsbullet.in. There is no mention of Anil Potti at the actual news site.

  17. 17
    Ted & Hellen says:

    It’s an example of the ease with which private censorship can manipulate the IP legal regime to disappear uncomfortable speech.

    Oh yeah…absolutely. DougJ tries to accomplish this all the time here at BJ.

  18. 18

    @Soonergrunt: He can be the new Indian wingnut Pundit, since he is good at making up stuff.

  19. 19
    Scott S. says:

    I’m seeing some stuff suggesting that trademark trolling is going to be the next big thing. Games Workshop, creators of the Warhammer 40,000 RPG, are trying to claim a trademark of “space marine” to get an author’s book tossed off Amazon, and DC and Marvel Comics are threatening a suit against a small publisher because they have a jointly-held trademark of the word “superhero.”

  20. 20
    Alex says:

    WordPress is not the problem. They did what was legally required of them. In my experience (I send about 20 DMCA notices a week to pest control companies selling themselves with my photographs without my permission) WordPress handles takedowns better than most. GoDaddy, in contrast, will yank entire sites rather than just the files in question. Even as the rights-holder such an extreme measure pisses me off.

    Once WordPress receives a proper counter-notice they’ll reinstate the content, also as legally required. This is no biggie.

    People who receive spurious takedown notices need to fight back. Whinging on the internet doesn’t count. Lawyering up will. The law allows victims of false filings to recoup damages, but the practice of predatory DMCAing isn’t going to change unless victims stand up and collect what they are legally entitled to take.

    Eliminating DMCA entirely won’t help, as the internet without a safe harbor provision for web hosts will shut down faster than it ever could with SOPA.

  21. 21
    Roger Moore says:

    @Julia Grey:

    Is the idea that you have to take it down because it would cost you too much in legal fees to prove that it’s your own property???

    The idea is that a lot of service providers have automated their takedown procedures so that challenged material is taken offline automatically on receipt of a complaint, and the people who put it online have to counter-challenge to get it put back up. In effect, people are assumed guilty until proven innocent. And there are no real consequences for making false accusations, so challengers can behave like trolls on Balloon-Juice, popping up under a new pseudonym and IP address to make the same baseless accusations.

  22. 22
    Peter says:

    @Roger Moore: There should at least be serious financial penalties associated with falsely claiming copyright. In theory making a false DMCA claim is supposed to have fines associated with it but in practice I’ve never heard if these being enforced.

  23. 23
    joes527 says:

    @Alex:

    People who receive spurious takedown notices need to fight back. Whinging on the internet doesn’t count. Lawyering up will. The law allows victims of false filings to recoup damages, but the practice of predatory DMCAing isn’t going to change unless victims stand up and collect what they are legally entitled to take.

    Yeah. Good luck recouping damages from a faked website with an obviously bogus WHOIS record.

  24. 24
    Alex says:

    @joes527: I’d aim for Anil Potti, personally.

  25. 25
    martian says:

    I’d like to ask a question only tangentially related this post, if I may, because it seems like the people drawn to this topic might know: What’s a good book about the origin and history of corporate personhood? Does anyone have a suggestion ? A Republican-voting Libertarian (is that redundant?) friend of my spouse’s asked for suggestions. I suppose he thought the liberals in his life were just the people to help him along with his naughty thoughts about how corporations might be getting just a tiny bit too powerful.

  26. 26
    liberal says:

    @Roger Moore:
    Yes, but in most cases the lawyer doesn’t have to take on the client, right? In which case the lawyer is at least to some degree a moral agent.

  27. 27
    Peter says:

    @Alex: Most of the people who are the subject of spurious copyright claims can’t afford to lawyer up, or it isn’t worth the trouble. And most of the people who make spurious copyright claims are not actual people to begin with so lawyer up against WHO, exactly?

  28. 28
    trollhattan says:

    And here I thought “copyright” was whatever Disney said it meant.

  29. 29
    joes527 says:

    @Alex: Without evidence to link him to this that’s slander or libel (depending on whether you read it out loud or print it out)

    Lawering up might be the right thing to do because you are going get a defamation charge in return.

  30. 30
    PJ says:

    Tom – The problem you’ve described here doesn’t involve copyright per se, but rather with the DCMA, which was crafted to allow internet providers and web aggregators to avoid liability for copyright infringement which they did not directly do themselves. Here, somebody is filing BS claims to protect their reputation and WordPress is apparently complying because that’s the easiest thing for them to do. It’s a clear abuse of the DCMA takedown system.

    But the DCMA is currently the only immediate mechanism to stop piracy on the internet. And it stinks, but it’s all there is. It requires rights holders to send takedown notices for each and every instance of infringement to each and every host. You cannot simply send a notice to the host saying, or even proving, that you have the copyright to a particular work and asking them to ban any unauthorized publication or downloading of the work. If you are dealing with YouTube or any Megaupload type site, it’s like a game of whack-a-mole. While ostensibly banning links that lead to copyrighted material for which they have received a takedown notice, Google deliberately circumvents the purpose of the law by providing a separate link which leads to a document containing the infringing link, which can then be cut-and-pasted to access the infringing material.

    I would love to see this system changed, to put the onus on the Googles of the world to police themselves (which they can and do do on YouTube with regard to porn), but the tech industry has an awful lot of money invested in keeping things the way they are.

  31. 31
    fuckwit says:

    Oh it’s not just DMCA. Software patents are evil too, as are patent trolls.

    I am sitting on a niche invention right now because some asshole patented it 7 years ago, but hasn’t actually shipped it, despite how fucking simple it is and how much prior art there is; there is no way he should have been granted that patent in the first place, but now he’s got it.

    I can’t see investing the time to ship it and market it, especially since it’s kind of a niche anyway, and then to rish having such douchebag hit me with some kind of extortionate demand that would shut me down or end up with him shaking me down for my work.

  32. 32
    Roger Moore says:

    @Alex:

    I’d aim for Anil Potti, personally.

    Can you prove that he’s behind this? It’s not enough to suspect him; you need real evidence that it’s his work.

  33. 33
    Peter says:

    @PJ: Or maybe the onus could be on copyright trolls to actually prove they own the things they say they own and that what they’re claiming to own is actually infringing.

    If ‘rightsholders’ can’t keep up that’s their problem.

  34. 34
    burnspbesq says:

    @martian:

    Blackstone’s Commentaries on the Laws of England. Anyone who points you to anything having to do with the Southern Pacific case from the 1880s is fucking with you.

  35. 35
    peach flavored shampoo says:

    “WordPress removes Anil Potti posts from Retraction Watch in error after false DMCA copyright claim”

    Quadruple negative? This one took me about 3 minutes to unwind.

  36. 36
    NonyNony says:

    Actually at this point the NewsBullet.in site is now returning “403 Forbidden” errors when trying to access the pages that were in the DMCA notice.

    This might not actually be a case of the good doctor’s image management going awry at all. This might be a case where a “journalist” in India turned in a plagiarized story and the editor honestly thought that the work had been stolen from his paper.

  37. 37
    peach flavored shampoo says:

    So, it looks like newsbulet.in was a complete fabrication

    The clear misspelling should have made it that a dead give-away….

  38. 38
    PJ says:

    @Peter: It would not be complicated to have a registry of copyrighted works (i.e., the Copyright Office) to which a content aggregator could refer when a dispute regarding infringement arises, but this would require aggregators to actually do some work, so it is unlikely to happen in our political climate. As long as they can sell someone else’s content without paying a price for it, they will continue to do so.

  39. 39
    PopeRatzo says:

    There’s an argument to be made that all copyright is evil.

  40. 40
    Alex says:

    @PopeRatzo: @PJ: Yeah, I think a central database to keeps track of rights is the best solution. I’d be willing to pay higher registration fees to see it happen.

  41. 41
    Roger Moore says:

    @burnspbesq:

    Anyone who points you to anything having to do with the Southern Pacific case from the 1880s is fucking with you.

    Or they’ve been misinformed themselves by somebody else. The thing about it being created from whole cloth by the Supreme Court in the 1880s is a very common belief; it’s a zombie lie that just won’t die.

  42. 42
    jayackroyd says:

    You know, Tom, I think the phrase “intellectual property” was one of the greatest PR coinages of all time. The whole idea of copyright and patent, as you know, is to have a limited period of monopoly for innovators and artists. That’s nothing like “property,” but the use of the phrase makes the claim that sharing an mp3 with a friend is theft seem more plausible. I try not to use the phrase, pissing into the wind I know–it’s hard to fight The Mouse–but it’s one little thing I do.

  43. 43
    martian says:

    @burnspbesq: Prior to the late 1880’s though, weren’t corporations very tightly regulated at the state level? My understanding is that in the wake of the American Revolution the founders were wary of potential abuse of corporate power.

  44. 44
    jayackroyd says:

    @PopeRatzo: The idea of a limited period of monopoly over original works isn’t a bad idea. But it makes no sense for the monopoly to extend past the life of the creator.

  45. 45
    Roger Moore says:

    @NonyNony:

    This might not actually be a case of the good doctor’s image management going awry at all. This might be a case where a “journalist” in India turned in a plagiarized story and the editor honestly thought that the work had been stolen from his paper.

    Or it could be that some fanboy in India is trying to protect the reputation of his hero. We just don’t know what’s really going on.

  46. 46
    sm*t cl*de says:

    an “online reputation manager” in 2011 to do whatever sort of obfuscation it is that such people do.

    Reputation management is a fine literary tradition.

  47. 47
    joes527 says:

    @NonyNony:

    This might be a case where a “journalist” in India turned in a plagiarized story and the editor honestly thought that the work had been stolen from his paper.

    Nope. The reason that the links are dead is because the whole site was a fake. There is an actual news site with a similar correctly spelled name and newsbulet.in was typosquatting. They seemed to have gotten more attention than they figured, and so have folded up the whole site at this point.

    There is no way that this is an honest mistake by the Indian website caused by a rogue reporter’s plagiarizing.

    The website with the articles was fake from start to finish. (and is gone now)

  48. 48
    Tom Levenson says:

    @jayackroyd: You are right, and I shall join you in said upwind urination (at some safe distance from your location, of course…)

  49. 49
    cleek says:

    @jayackroyd:

    But it makes no sense for the monopoly to extend past the life of the creator.

    what if the ‘creator’ is a corporation?

    ex. a Pixar movie isn’t the work of one person, it’s the work of hundreds of people, gathered together under a corporate umbrella. how long should Toy Story stay under Pixar’s control?

  50. 50
    eemom says:

    I love that painting. Used to have a little postcard version of it that I got in the Louvre gift shop a million years ago.

  51. 51
    Baud says:

    @cleek:

    Corporate works are protected for a set terms of years. I believe it’s 75 or 100 years.

  52. 52
    burnspbesq says:

    @martian:

    Certainly, the founders were well aware of the sordid history of the East India Company. That may explain why with very few exceptions (e.g., Fannie and Freddie) there is no such thing as a Federally chartered corporation in the United States.

    Prior to around 1830, in most states it took an act of the legislature to create a corporation. This came to be seen as excessively cumbersome, so over time the states moved to something akin to the current system where corporations can be formed by private action and their existence receives official recognition as a result of a filing with a state administrative body.

  53. 53
    burnspbesq says:

    ETA: As the use of corporate form for business enterprises proliferated in the second half of the nineteenth century, corporate franchise fees came to be an increasingly important part of the states’ revenue. This led to competition among the states to create more hospitable legal and regulatory environments for corporations. Eventually, Delaware, which had no other tax base to speak of, won the race to the bottom.

  54. 54
    PJ says:

    @jayackroyd: How, precisely, is intellectual property any different, as property, than real property, business property (securities, partnership interests, sole proprietorships, etc.), personal property, and that most intellectual of all properties, money?

    A property right provides exclusive use and exploitation of the thing owned. This applies to copyright as much as to an office building, a business, a car, or a stack of cash.

  55. 55

    @Roger Moore:

    Can you prove that he’s behind this? It’s not enough to suspect him; you need real evidence that it’s his work.

    Proof is for wussies. Lack of it should never hinder a prosecution. The BJ commentariat has been very clear about that when dealing with financial companies.

  56. 56
    martian says:

    @burnspbesq: It would seem to follow from that initial wariness and the strict state level oversight common well into the 19th century that the current corporate meddling in government and the fearful deference offered up by many politicians is very far from what the founders intended. A pitfall they were directly attempting to steer the country around, actually.

  57. 57
    joes527 says:

    @PJ:

    How, precisely, is intellectual property any different, as property, than real property, business property (securities, partnership interests, sole proprietorships, etc.), personal property, and that most intellectual of all properties, money?

    If I take your money, then I have your money and you don’t.

    If I “take” your intellectual property, then I have your IP and … you still have it too.

    It’s witchcraft I tell you!

  58. 58
    TriassicSands says:

    I’ve long been fascinated (and disgusted) by people who falsify not only their credentials, but also much more significant and dangerous things like medical research. After reading this post, I went to Wikipedia for a quick profile of Anil Potti and I was disappointed to learn that despite everything Potti still has his medical license. With any luck, no one will give him an opportunity to practice and perhaps when all the information is in he and his license will be permanently parted.

  59. 59
    burnspbesq says:

    @martian:

    By the 1820s, it was obvious that the world the Founders knew was long gone. The building of canals and railroads required capital on a scale never before seen, and the limited liability afforded by corporate form was needed to get investors to put up that capital.

    Originalism is one thing. Fetishistic originalism is another, and I am not down with it, whether it’s coming from the left or the right.

  60. 60
    martian says:

    @burnspbesq: There were always corporations for the purpose of building canals and so forth in the U.S., but the charters were extremely limited as you probably know. There are multi-nationals that exist today that seem not dissimilar in character and influence to the East India Company. That seems to me to not be an inevitable situation but, rather, one that snowballed as the corporations gradually escaped tight state limits, and acrued recognition of their personhood rights in the courts. Perhaps the affirmations of their personhood rights is not the nut of the problem, but it seemed to proceed hand in hand with the increase in economic scale and scope and the decrease in regulatory supervision.

  61. 61
    Nutella says:

    @fuckwit:

    Software patents are evil too, as are patent trolls.

    The good guys won one recently: link

  62. 62
    PJ says:

    @joes527: No, if you wanted to obtain my IP legally, you would have to pay me. By taking it without paying me, you are taking money from me. Just as if you’d rented my apartment but elected not to pay me; I’d still own the apartment, but would be deprived of the rent. The fact that the “capital” is undiminished does not excuse the taking. If an unauthorized person can use property with impunity, it ceases to be property.

    Furthermore, one need not physically take property to reduce its value. If the currency supply is, say, 1 trillion dollars, and I print 1 trillion dollars for my own use, I have cut the value of whatever money you have in half, while enriching myself, all without touching your bank account.

  63. 63
    stoned stats says:

    Late to the party as usual, but great post as always, Tom. I’d say peer review is more fucked than copyright, but I’m at the mercy of peer review more than of copyright. So I’m biased. Fuck peer review. Gotta go publish. Bye. Hope my work never shows up on that site.

  64. 64
    Joey Giraud says:

    @PJ:

    “take my intellectual property” only makes sense if an idea *can* be property.

    Just because contemporary propaganda calls it property doesn’t make it so.

    You’re being deliberately dense here. Joe is talking about the idea itself, not the money you think is owed you.

  65. 65
    Joey Giraud says:

    @jayackroyd:

    You’ve hit the nail on the head.

    “Intellectual Property” the phrase is a first rate bit of sophistry, a brain worm, a friendly lie.

    Sapir-Whorf indeed.

    What they really are is a government-issued artificial monopoly.

  66. 66
    Joey Giraud says:

    @burnspbesq:

    Blackstone’s Commentaries on the Laws of England. Anyone who points you to anything having to do with the Southern Pacific case from the 1880s is fucking with you.

    Thom Hartmann isn’t known for fucking with people, and his show is where I first heard of the Southern Pacific case.

    Since you’re so knowledgeable and erudite, perhaps you could manage a simple two sentence summary on the origin of corporate personhood that isn’t fucking with us and is more then a mere reference to a book quite obscure to laymen.

    Or are you a corporate concern troll?

  67. 67
    Joey Giraud says:

    @jayackroyd:

    limited time

    Let’s be traditional: twenty years for copyright and fourteen for patents.

    If you can’t make money on it by then, too bad. You had plenty of time.

    Get the government out of the monopoly business.

  68. 68
    AWJ says:

    No, if you wanted to obtain my IP legally, you would have to pay me. By taking it without paying me, you are taking money from me. Just as if you’d rented my apartment but elected not to pay me; I’d still own the apartment, but would be deprived of the rent. The fact that the “capital” is undiminished does not excuse the taking. If an unauthorized person can use property with impunity, it ceases to be property. Furthermore, one need not physically take property to reduce its value. If the currency supply is, say, 1 trillion dollars, and I print 1 trillion dollars for my own use, I have cut the value of whatever money you have in half, while enriching myself, all without touching your bank account.

    In short, “IP is property, because if you infringe it you’re robbing me of the money I would have made if you hadn’t infringed it”.

    There may be logically sound arguments for IP, but this particular argument is a textbook example of begging the question.

  69. 69
    TDS says:

    IP as currently legislated is an awful concept.

    it’s one of those Best-lies-have-a-grain-of-truth things.

    You do want to protect people from having their work stolen but our law stifles people and is mostly friendly to wealthy & legally powerful corporations.

    @PJ – there is a difference between money you could theoretically could have earned and actually losing something. If you skimp out on your rent you arn’t stealing from the landlord.

    i.e. lets say Bill is selling an apple and Joe is selling a digital apple. Bill’s apple gets stolen and now he can’t sell it to anyone. Joe’s digital apple gets copied, but he can still sell it since he didn’t lose anything.

    To put it another way, IP law suggests the real crime is that the apple thief didn’t pay, not that he took the apple.

  70. 70
    PJ says:

    @Joey Giraud: IP doesn’t protect ideas, but rather expression (copyright), procedures or devices (patent) or trade practices (trademark). You can think all of the ideas you like, no one is stopping you. “Contemporary propaganda,” or what the rest of us call the law, is what creates property. You may not like this, but your contempt for it does not render the law invalid.

  71. 71
    PJ says:

    @TDS: How does IP law stifle people any more than any other form of property law? In your view, laws regarding personal property “stifle” me from taking the apple from the farmer without paying for it. The money that can be earned by the artist or the farmer isn’t in any way theoretical.

    Property law works in favor of those who have property, it’s true. Those who have massive amounts of property stand more to gain from it. But even for those who have little property, it protects them from the predations of their neighbors and the more powerful. If I have copyright in the song I created, no matter how little money I have, I can prevent Frito-Lay from using it in their ad without my permission.

    All forms of property are different in nature. I used the example of counterfeiting because it most resembles what happens when digital works are duplicated without compensating the owner. With regard to personal property, yes, the property can be lost forever to the original owner if it’s taken without permission. This is not true with other forms of property, either because the thing is readily locatable (real estate) or because it is essentially fungible (money). Analogies between them are not going to be exact because they are in many ways fundamentally different things. Through our laws, we, as a society, have decided that they are all worthy of similar protection.

    With regard to your apple example, the crime is not just that the digital thief didn’t pay, but also that the thief (say, Megaupload) is selling those apples to hundreds of thousands of other people at a fraction of the cost charged by the digital farmer, greatly reducing the market for apples from the digital farmer.

    People who take IP without compensation implicitly acknowledge that it has a value (otherwise, why bother?), but they do not believe that the labor that created that property has a value. Ultimately, the question is: do you think that labor should be compensated or not? (As an aside, I have never heard anyone advocating for an end to IP also announce that they would gladly give up all of their own property rights.)

  72. 72
    Tonal Crow says:

    Just for reference, Art.I s.8 cl.8, from which the copyright and patent powers flow:

    [The Congress shall have Power…] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]

    (emphasis added)

    Of course, the Supreme Court eviscerated the limitations when they gave Disney an extra ~70 years to squeeze bucks out of Mickey Mouse ™’s ass.

  73. 73
    Tonal Crow says:

    @PJ: “IP” is itself an intentional misnomer. It is a very special kind of “property”, intended to be limited to mortal grants of exclusivity that “promote the Progress of Science and useful Arts”, Art.I s.8 cl.8. It was intended to have little in common with the kinds of property (e.g., real estate, chattels) upon which British common law lavished most of its attentions. By applying property law to intellectual attainments (“IA”), we’ve created yet another means for large corporations to stifle small ones, and for all of them to stifle the individual, in direct contravention to the constitutional basis for the entire venture.

    Why do we have such a problem being moderate?

  74. 74
    A Streeter says:

    @PJ:

    How, precisely, is intellectual property any different, as property, than real property, business property (securities, partnership interests, sole proprietorships, etc.), personal property, and that most intellectual of all properties, money?

    Temporality? Those other things you mention are owned indefinitely, but in principle a copyright or patent will expire after a set period.

  75. 75
    PJ says:

    @A Streeter: Well, that’s what the Constitution says, but that could be amended. We could also put a time limit on all other forms of property (say, death), at which time they return to the public domain, but fat chance that anyone will vote for that. The point is that all of these forms of property are legal creatures.

  76. 76
    PJ says:

    @Tonal Crow: I haven’t seen one example of anyone being stifled by intellectual property, other than by the simple fact, as with any other type of property, people have to pay to have access to it. As you quote, the Constitutionally stated purpose of copyright and patent law is to promote “science and the arts”. How does eviscerating intellectual property accomplish that? Without the protections of property, artists and inventors will be forced to seek patrons to suck up to, and any large scale investment in creative or scientific works will cease.

  77. 77
    Lex says:

    Here’s a slightly more entertaining case, involving a friend of mine’s battle with Viacom — he blogged multiple times about the case as it progressed, so here’s a roadmap: https://www.google.com/search?q=takedown+election+Viacom+YouTube+site%3Atheknightshift.blogspot.com&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla%3Aen-US%3Aofficial&client=firefox-a

  78. 78
    Tonal Crow says:

    @PJ:

    @Tonal Crow: I haven’t seen one example of anyone being stifled by intellectual property, other than by the simple fact, as with any other type of property, people have to pay to have access to it. As you quote, the Constitutionally stated purpose of copyright and patent law is to promote “science and the arts”. How does eviscerating intellectual property accomplish that? Without the protections of property, artists and inventors will be forced to seek patrons to suck up to, and any large scale investment in creative or scientific works will cease.

    Where did I argue for “eviscerating” IA? Please be specific. Also, you can find many examples of innovators being stifled by having to pay patent trolls. Just search “patent troll”.

  79. 79
    Tonal Crow says:

    @PJ:

    @A Streeter: Well, that’s what the Constitution says, but that could be amended.

    We haven’t amended it. It’s the law of the land. IA is not common-law property.

  80. 80
    Joey Giraud says:

    @PJ:

    Strawman. A distinction without a difference.

    An expression of an idea is no more material then an idea. The same argument applies.

    Deliberately dense.

  81. 81
    Tonal Crow says:

    @Joey Giraud: I don’t see why nonmaterial items (e.g., shares of stock) cannot be property. That said, as you can see above, I take issue with the extent to which corporate interests and politicians have depleted the cultural commons by transforming the constitution’s limited grants of exclusivity into basically eternal property.

  82. 82

    The US Patent and Trademark Office is a complete failure regarding software (not to mention other subject areas). Patent trolling is rife in the software industry, and it’s almost always bullshit.

    I was involved in a case several years ago and helped my employer settle for short money a completely meritless claim from a stupid patent that should never have been granted, since it was filled with bullshit (it was waaay more unreadably vague than scripture, for christ’s sake), prior art (it pretended to patent work in 1996 that I personally knew had been done elsewhere in 1992), and obviousness (one of its claims of novelty could be implemented with five lines of C code, even with braces on their own lines).

    But still, my employer settled rather than squash the patent trolling roaches. It’s simply an institutionalized protection racket.

    First step: Impeach all the federal judges who hear patent cases in the Eastern District of Texas.

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