Stanford Center for Internet and Society

I write this month in CIO Insight, “IP Law vs. Moore’s Law,” that the legal fiction treating intellectual creations as a kind of property has proven less and less useful as technology for creating, reproducing, and distributing those creations has grown faster, cheaper and smaller.

As partisans on both sides line up to begin shooting at each other in a copyright war, it's worth remembering that the fiction of intellectual property law was only an approximation. IP has never been given the same degree of legal protection as personal property or real estate, and for a very good reason.

I’ve just read the opinions released on Monday by the U.S. Supreme Court in two separate patent cases, KSR v. Teleflex and Microsoft v. AT&T. Though the business press has no trouble finding lawyers eager to announce the enormous significance of these decisions (“trillions of dollars,” ad. nauseum), the truth is, as always, that these opinions have little immediate or obvious impact.

But what both demonstrate to me is the dangerous chasm between the real world and the world of law, a chasm that gets deeper and more deadly all the time.

My column in this month's CIO Insight describes a few of the big concerns I have with the Council of Europe's Convention on Cybercrime, which the U.S. Senate ratified over the summer.

The Justice Department took the unusual step of issuing a press release at the time announcing that, although in theory the treaty could lead to significant free speech and privacy issues, the U.S. wouldn't enforce it that way.

I am working in Europe this week with a large technology company, and of course everyone is talking about the filing of a $1 billion copyright infringement case against Google by Viacom. "We have rights management products that would solve the problem," one of my clients noted. "I don't understand why it isn't selling."

Maybe it's because Google doesn't think it has a problem. Maybe it's because what my client is offering isn't a solution, it's the raw material of weaponry in an escalating information war.

Viacom agreed to license some of its vast content to Joost today, only a few weeks after ordering YouTube to pull 100,000 unauthorized clips from its programs from the site. Viacom’s Chief Executive notes the company is interested in operating in any “secure environment,” adding, “This assures any potential partners that we’re open for business and that we’re able to enter into transactions with companies that respect our content and the considerations of our business.” Here’s the press
release.

Apple (computer) and Apple (records) announced
yesterday they had once again (finally?) resolved their trademark dispute, which dated back to the formation of the computer company in the 1970’s. Under the undisclosed terms of the new agreement, the computer company will be the “owner” of the Apple marks and license back to the music company the ones it uses (e.g., the green apple). And now, at last, iTunes will begin to sell Beatles songs.

I predicted last May that this would be the outcome of the lawsuit brought by the music company two years ago, but it didn’t take a genius to see what was coming.

Wells Fargo and Visa released a study on Thursday that reported a significant decline in reports of identity theft last year. Still, the losses to individuals and financial services providers may be as much as $49 billion.

Attorney General Alberto Gonzalez is interested in restarting talks with Congress about data retention legislation. (See Anne Broache, “Feds: Details of ISP Snooping haven’t been decided”, http://news.zdnet.com/2100-9595_22-6152598.html). I’m worried, but not as much as many commentators seem to be.

I've already gone on record opposing "net neutrality" legislation, (see
"What's Wrong With Net Neutrality," http://www.cioinsight.com/article2/0,1540,1993563,00.asp), and predicted that none of the pending legislation from the 109th Congress would pass. None of it did.

There they go again. The other day (see http://www.nytimes.com/2006/12/21/business/21cable.html?_r=1&th&emc=th&o... ), the FCC ruled in favor of local phone companies and ordered municipalities to respond within 90 days to requests by phone companies to offer cable services. The Times quotes a Verizon spokesman saying, “This means an end to the automatic skyrocketing in cable prices and means greater choice in service and programming."