DWM600-54682-07229-66748 TOP C StarOne

2:30pm - 3:45pm IP: Think Tank

Any exclusive claim to "all now-known or hereafter existing rights...of every kind and nature throughout the universe" is outlandish enough to make the most ambitious conquistador cringe. Is intellectual property the economy of the future; or is it the strip-mining of history? Does it guarantee the viability of creativity; or is it a tidal wave of authoritarian exploitation? And worst of all, does the subject really have to be so droll and technocratic? Panelists, Alan Toner, Jamie Love and Greg Pomerantz, will address the ways in which the future of innovation is at risk due to the closure of the public commons through both legal and technological activity and the recent countervailing interest in legal reform that shifts away from protecting corporate rights toward reclaiming the public domain. Organized by Ted Byfield

trade secrets ucita benkler overcoming agoraphobia

The art of theft

marcantonio Raimundi - durer's printer reproduction Reynolds - emulation 1774 discouse on art encourages imitation of masters old and new

barbie/napier barbie/acqua harry potter/time warner

"The problem remains that such practices are likely to meet legal challenges; but this only emphasizes the necessity of a broadly praacticed art of theft - of many parallel thefts , both mainstream and marginal. only the continuation and intensification of culture jamming can give momentum to necessary initiatives to reform copyright law."

p.100

Pierre Huyghe retelling dog day afternoon and the story of john wojtowicz

the third memory

1. Forthcoming proposal on counterfeiting and piracy in EU.

2. Innovation? Is it necessarily good? The danger of the innovation argument and the commons/enclosures discourse. The temptation of economic argument, alluriong because we see ourselves confronted by cartels, and we know that within the parameters of classical economics immaterial goods are public goods.

Has there ever been any sustained investigation of the effects of innovatio on distribution? Why is it that those interested in innovation generally ingnore questions of equity, and vice-versa.

3. Mass market in pirated goods provides sustenance for many in the great cities of the third world, and constitutes an increasing point of confrontation. The riot in San cristabl de las Casa is only a first skirmish in what will undoubtedly become a more blloody battle. We have already seen the attempts by copyright monmopolists to draw connections between terrorist funding and counterfeiting of copyrighted and trademarked goods. Some believe that it is merley a matter of time before there is a an armed international conflict based upon the contestation of IP rights. The question is whtyher this war has actually already begun within states rather than between states? Is this not paradigmatic of the contemporary international organisation of power,

4. Within the industrialised west, the counterfeit market also constitues an important and growing economy. Specifically it is vital to new immigrants who encounter obstacles to their entry into the orthodox labour market. This can be seen clearly in Italy, where ambulant vendors of pirated software and cds/dvds are ubiquitous. There is sometimes a wariness amongst those who have been charcterised as 'reformers' to identify themselves with these activities, and that is something which should be challenged.

5. The process of enclosure has been accompaniued by the introduction of a wideranging criminalistaion of individual use of copyrighted works. The NET, the DMCA. Sklyarov, boy in Hong Kong, the raids in Belgium, Jeffrey Gerard Levy.

6. Apart from all these dour facts, there is also a ludic aspect. The battle in the peer to peer terrain is the best example of this game. Napster. Think pig-latin. Or better still think Gnutella, or one of the dozens of derivative applications operating off their networks. Or freenet. This is literally a game of 'catch me if you can', and the RIAA is it.

7. This brings us back to a curious point, which is often ignored, the relation between that which is constructed, as an artefact, as 'crime' and innovation.

8. The question must be posed as to what this technological society wants to do with vast array tools and the cpacity of mass production which is available to it, yet instead decisions continue to be made under the cosh of economic imperatives in an environment where austerity is imposed to a degree that is utterly absurd. The first obstacle is the refusal to pose the question. The shame is that alternative futures are in the large part anything but 'utopias', The technological means required to materially sustain other trajectories exist.

917- 751-7582. eurolinux alliance RAFI Rural Advancement Foundation International TACD Michael Davis - Progressive IP Law Assoc. DocketWatch July 13, 2001 from the Committee of Appropriations

.......

Within the amounts available to the PTO in fiscal year 2002, the Committee expects that not less than $3,000,000 will be provided to expand PTO's relationship with the National Inventor's Hall of Fame and Inventure Place, and not less than $1,000,000 will be provided to the International Intellectual Property Institute to promote sustainable development in developing countries and to protect business interests by assisting in the establishment of intellectual property legal frameworks. W3C Patent Policy Framework

collapse of idea/expression dichotomy open conflict with the FA collapse of public private distinction

napster- german constitutional court 1963 compare soviet control of printing presses

Wind Done Gone- Alice Randall Damien Loeb

Sklyarov Universal v Reimerdes Eldred Free Republic

MyMp3 got a performance license Rosetta v Random House

default rule removal of formalities, date, owner absence of notice registered 15% were renewed so they were protected only for 28 years required by Berne Convention divisibility

repro distro perf/display divided ownership? Must be done with the contracts to get permissions.

ostrom at 50 Kazaa - no liabilty http://www.recordingartistscoalition.com/ Jeffrey gerard Levy

Intellectual Property and communications Omnibus Reform Act 1999 (brought in work for hire in sound recordings) Repealed in October 2000 NET 1997 DMCA 1998 AHRA 1992 Copyright Renewal Act 1992 Computer Sopftware Rental Amendment Act 1990 Copyright Remedy Clarification Act 1990 Anti Counterfeiting Consumer protection act 1996 Digital Performance in Sound Recordings Act 1995 Digital Theft and Copyright Damages Act 1999

and now Consumer Broadband and Digital Television Promotion Act extending the draconian sanctions which apply to 1201 and 1202 infringements to (a) IN GENERAL. The provisions of section 1203 and 1204 of title 17, United States Code, shall apply to any violation of this Act as if --

(1) a violation of section 5 or 6(a)(1) of this Act were a violation of section 1201 of title 17, United States Code;

[[SEC. 5. PROHIBITION ON SHIPMENT IN INTERSTATE COMMERCE OF NONCONFORMING DIGITAL MEDIA DEVICES.

(a) IN GENERAL. -- A manufacturer, importer, or seller of digital media devices may not --

(1) sell, or offer for sale, in interstate commerce, or

(2) cause to be transported in, or in a manner affecting, interstate commerce,

a digital medial device unless the device includes and utilizes standard security technologies that adhere to the security system standards adopted under section 3.

(b) EXCEPTION. -- Subsection (a) does not apply to the sale, offer for sale, or transportation of a digital media device that was legally manufactured or imported, and sold to the consumer, prior to the effective date of regulations adopted under section 3 and not subsequently modified in violation of section 6(a).

SEC. 6. PROHIBITION ON REMOVAL OR ALTERATION OF SECURITY TECHNOLOGY; VIOLATION OF ENCODING RULES.

(a) REMOVAL OR ALTERATION OF SECURITY TECHNOLOGY. -- No person may --

(1) knowingly remove or alter any standard security technology in a digital media device lawfully transported in interstate commerce, or ]] & s.6a2 (2) a violation of section 4 or section 6(a)(2) of this act were a violation of section 1202 of that title. [[knowingly transmit or make available to the public any copyrighted material where the security measure associated with a standard security technology has been removed or altered, without the authority of the copyright owner. ]]

xerox 1948 & 1959 popular

Copyrioght Term Extension Act 1998 Sonny Bono Visual Artists Rights Act 1990

JL on PD: Material not subject to copyright protection either because the material is not protectable by copyright (eg ideas, facts, processes systems) or becuas ecopyright protection has expired (eg Mark twain's Tom Sawyer) or been forfeited by failure to comply with a statutory condition for copyright. The public domain comprises material that the public is free to use in any way it pleases.

Viewing thsaes things within the law can only get you so far.

WeinrebХs suggestion that fair use must ultimately rest in Тa communityХs established practices and understandingsУ could do much to rescue us from the uncertainties and intellectual impoverishment of conventional section 107 analysis, and would carry us beyond the confines of parody and market harm analysis as well.

In this respect, section 107 stands in sharp contrast to so much of property theory generally as may propose (quite wrongly, in our judgment) that property rights are presumptively superior to rights grounded in public entitlements. [cite Underkuffler as to this last point]]

But younger works (understand that this is a term of art, not necessarily bounded or defined merely by time) present another dimension. If the antecedent work has not yet had occasion to recoup, it may be fair to call upon the creator of a subsequent, transformatively critical appropriative work to share in proceeds from that work. There need be no conventional copyright justification in this; we need not jump through doctrinal hoops. The thought here is simply that if the copyrighted work has not managed to return its investment to its creator, there is nothing inequitable - but let us say, rather, that there appears to be something equitable - in broadening fair use so as to return to the copyrighted work some measure of the later workХs success. And convention would be served by such a principle, meanwhile, if only indirectly. The incentive to produce works would be preserved, and preserved in settings where, at present, the fair use doctrine actually does not do so.

Which brings us to our final thought: would it not be equitable to require an acknowledgment of the creative provenance of an antecedent work by the creator of a second work? Among the moral rights, the right to acknowledgment has always seemed singularly just. It costs nothing in economic terms. It can mean much to those whose work has been appropriated. One writer, recalling the earliest experiences with sampling, observed that most musicians whose work was sampled were content with an acknowledgment. That is no longer necessarily the case today, but the point is no less valid for the fact that the music industry may have succeeded in altering the consciousness of artists. Fair use at present does not formally require an acknowledgment. We think such a requirement should play an ordinary role in cases of transformative critical appropriation.

Lessig

When they are smart, they said they were worried about congestion. But when they were honest they said something different. Said Somers, of AT&T, Тwe didnХt spend 56 billion on a cable system to have the blood sucked from our veins

The monopoly rights that the 1790 statute granted were essentially protections against pirate presses. The target of the regulation was the press that would take an American authorХs book, and simply reproduce it without compensation to the original author. These pirate presses were to focus their energy on stealing from the British and French; Americans were to be exempted from the pirate trade.

Most Americans agree with the Disney Corporation that Mickey Mouse is DisneyХs now and forever; they donХt even notice the irony then when Disney can make millions off of HugoХs creation, the Hunch Back of Notre Dame, or Prokofiev or Pocahontas.

Lessig is being very dark and pessimistic.

Rai

Wesley Cohen et al., Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not), NATIONAL BUREAU OF ECONOMIC RESEARCH, Working Paper No. 7552, 2000 (discussing the importance of patents relative to other mechanisms of appropriation across various industries and concluding that patents are particularly important in the pharmaceutical arena);

the explicit policy of the U.S. government to promote patenting of government-sponsored research results by universities, government agencies, and other recipients of federal research funds. This policy, which was codified beginning in 1980 with passage of the Bayh-Dole Act5 and the Stevenson-Wydler Act,6 has turned universities into major players in the biopharmaceutical patenting arena.

Universities have taken the opportunity to file patent applications on basic research discoveries, such as new DNA sequences, protein structures, and disease pathways, that are primarily valuable as inputs into further research, accelerating the encroachment of the patent system into what was formerly the domain of open science.

upstream/downstream effect

In 1979, universities received 264 patents;14 by 1997, that number had increased to 2,436.15 This almost 10-fold increase in university patenting was significantly greater than the twofold increase in overall patenting during the same time period,16 and substantially exceeded growth in university research spending.17

Patents are plainly important to private investors in biopharmaceutical research. In some industries, patents serve primarily as Тbargaining chipsУ to negotiate around patents held by other firms,32 but in the biopharmaceutical industry, firms hope to use patents to enhance their profits. But the patents that primarily serve this function are patents that permit them to charge higher prices (and earn higher profits) on the products they sell, not patents that permit other institutions to charge firms higher prices for the research tools that they buy.33

Bronwyn Hall & Rosemarine Ham Ziedonis, The Patent Paradox Revisited: Determinants of Patenting in the U.S. Semiconductor Industry, 1980-1994 (National Bureau of Econ. Research Working Paper NO. W7602, 1999) (discussing use of semiconductor patents as bargaining chips to forestall potential infringement litigation).

allow march in prior to exhaustion of appeals expedite the exceptional circumstances procedure and remove the 'exceptional' constraint

public choice problems with a reivigorated level of discretion?

Patents on research discoveries impose costs on R&D, and these costs may well exceed any social benefits that they offer in the form of motivating further private investment in product development. It makes little sense to entrust decisions about when to patent the results of government-sponsored research to the unbridled discretion of institutions that are not motivated to weigh the costs against the benefits. A more sensible approach would give research sponsors such as NIH more authority to restrict patenting of publicly-funded research when such patenting is more likely to retard than promote subsequent research and development. A public research sponsor is particularly likely to invoke such authority to promote free dissemination of discoveries made in the course of grants to pursue the development of fundamental knowledge and research tools with the goal of enabling wide-ranging further investigation. As a likely sponsor of such future investigation, the agency will be motivated to keep its costs down, and this goal will often be better served by restricting patents. A conspicuous recent example is ТrawУ DNA sequence data generated in the course of the Human Genome Project, a fundamental resource for much future biomedical research. Although in this particular setting NIH has had some success, despite the constraints of the Bayh- Dole Act, in its hortatory efforts to restrict patenting of this fundamental information, hortatory efforts that rely on self-restraint by universities may no longer be sufficient.

sony broadband powell/broadband/sony

free labour/free culture eben

the more they disintermediate the more there is just them and us.

if all culture all information all art all music all knowledge has zero marginal cost and can be given to everybody everywhere at the same price for that it can be mader in the first place, why, is it ever moral to exclude anyone from anything.

comprisaon with feeding the world by pressing buttons.

and we have to make sure that we don't forget that the moral question is before our eyes all the time.

without coercion in the world towards whih we are moving all the traditional relations that support ignorance are radically unjust and we have an obligation to fight against them

with the world looking in errors are quickly noticed and corrected

nimmer on the number of licenses required