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12.31.2003
Milken Institute Review
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The latest Milken Institute Review (Fourth Quarter 2003) has some interesting stuff: Martin Campbell-Kelly, author of a useful history of the software industry, defends software patents (warily); economist Frank Lichtenberg examines the value of pharmaceuticals; and the newly-appointed Chief Economist of the IMF has an excerpt from his book Saving Capitalism from the Capitalists.
I like to plug the Review. (Nothing to do with its good sense in publishing my article on stock options last year, of course.) Subtitled "A Journal of Economic Policy," it is edited by Peter Passell, a former New York Times-man gone straight, and it is consistently intelligent and readable.
posted by James DeLong : 12/31/2003 02:54:01 PM
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12.30.2003
"Fair Use" Barbie
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The Ninth Circuit yesterday upheld as "fair use" a series of photographs called "Food Chain Barbie," which "depicted Barbie in absurd and often sexualized positions." These included "Malted Barbie" -- a nude Barbie in an old Hamilton Beach malt machine. For "Fondue Barbie" and "Barbie Enchiladas," use your imagination, or read the opinion.
I'm a big proponent of property rights, including IP rights, but the world definitely needs more parody, especially in this era of grim PC police of all persuasions, and the court got this one right. If you are lucky enough and good enough to create a product that turns into a cultural icon (and everyone knows what "Barbie" means without any explanation), then it should be fair game for all kinds of riffs. Thus I loved it when Ralph Nader took off on the MasterCard "Priceless" slogan in a campaign ad, and the decision against the Cat-in-the-Hat parody of the O. J. Simpson trial has always seemed unfortunate, even though probably correct under existing doctrine.
Furthermore, sensible law of fair use is vital to the long term health and acceptability of intellectual property as an institution. As the Napster experience has shown, it is exceedingly unwise to get into a position where the public feels that IP rights are either too complicated or too restrictive.
So maybe the next in the series should be "Ninth Circuit Barbie," decorously robed, of course.
posted by James DeLong : 12/30/2003 12:23:24 PM
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New IP Book
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Amazon just delivered PFF's copy of William Landes & Richard Posner, The Economic Structure of Intellectual Property Law (Harvard Univ. Press 2003). It starts out with a few numbers on the growing importance of IP in the world of law and econ:
+ Increase in patents issued annually from 1985 to 2001: 111,000 to 260,000.
+ Increase in annual U.S. receipts from foreign trade in IP from 1987 to 1999: $10 billion to $36.5 billion.
+ Increase in percentage of federal civil cases involving disputes over intellectual from 1985 to 2001: 100%.
+ Increase in membership of the Intellectual Property Section of the American Bar Association from 1980 to 2001: 5,526 to 21,670.
+ Increase in number of law journals specializing in IP, technology, and art from 1980 to 2003: 2 to 26. [N.B. This seems low to me; a Stanford University Libraries website on copyright has 62 links to journals on the law of IP & technology.]
+ Increase in number of articles in economics journals dealing with IP from 1982 to 2000: 5 to 235.
+ And so on.
A work by these authors is of course AN EVENT for anyone interested in law, economics, and intellectual property. More comment will forthcome after we have a chance to read it.
posted by James DeLong : 12/30/2003 10:23:25 AM
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12.19.2003
Subpoena Wars
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The D.C. Circuit just decided RIAA v. Verizon - the record industry's effort to subpoena the identities of file-sharers - in favor of Verizon and other ISPs who argued that the law did not allow RIAA to obtain the information. The ruling was based solely on statutory interpretation: in the court's view, the relevant language simply was not intended to cover P2P sharing. The court did not reach any of the First Amendment points argued.
The ruling surprised many, most assuredly including me, who thought the RIAA had the better of the statutory argument, and that the district court had made the right decision. (Pass the crow, please.) Verizon's lawyers deserve credit for tenacity in what was regarded by most experts as a losing cause.
The decision will have serious consequences, not least for Verizon. The statute was passed in 1998 as a bargain; the ISPs got safe harbors and immunity against charges of contributory infringement. The content providers got help in identifying actual infringers. This decision leaves that bargain a smoldering ruin.
So the content industry will now be forced to file John Doe lawsuits to ferret out the identities of the illicit downloaders, which it clearly can do, but which will be more expensive for everyone, including Verizon. And one can expect an offensive by the content industry against the ISPs to limit the safe harbors, charging complicity in the P2P infringement if there is any indication whatsoever that an ISP approved of it or fostered it.
The decision also ensures that the Digital Millennium Copyright Act will be reopened in the next Congress, which will create a thorough mess.
So Happy New Year to all!
posted by James DeLong : 12/19/2003 12:16:34 PM
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12.16.2003
Blame Canada
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The IP press over last weekend headlined a conclusion by the Canadian Copyright Board that downloading songs from the Internet is legal, as long as the purpose is to create a copy for personal use. "Blame Canada" said the LA Times, obviously a nest of Southpark fans.
The reasoning was technical. A 1998 (pre-Napster) Canadian law creates this right, and says nothing that would limit the source of the copy. QED, downloading is legal. The Board split the baby by noting that uploading to the Internet remains illegal.
The Canadian Recording Industry Association will appeal to the courts, but it is not really a significant loss, and would have little impact even if transferred to the U.S. The music industry's enforcement strategy is to disrupt uploading, not crucify downloaders. A swapping system in which no one uploads and everyone tries to free ride is just ducky from the industry's perspective. It would even build markets for the legitimate services that are rapidly coming on line.
The more interesting part of the decision is the contortions the CCB must go through to supervise Canada's system of taxing hardware and blank media to create a fund to compensate artists for their losses to this right of private copying. Academia in the U.S. has become entranced by the idea of such non-market systems. But watching the Canadians struggle with rates, coverages (e.g., iPods but not hard drives), exemptions and other issues raised by the 1,500 commenters on the proposed levies should make them pause. Markets and pay-for-what-you-take have simplicity and moral clarity, qualities not found in any administrative proceeding that I have ever seen, and certainly not in this one.
posted by James DeLong : 12/16/2003 10:51:31 AM
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