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PATRIOT Act: Last Refuge of Scoundrels
“Patriotism,” as Samuel Johnson famously said, “is the last refuge of a scoundrel.” In that sense, perhaps the USA PATRIOT Act is appropriately named after all.
In the immediate aftermath of 9/11, most people (though not everyone) agreed that the government should be given additional investigative powers to reduce the risk of more terrorist attacks. The fact that perfectly good intelligence was already available and ignored before 9/11 was considered water under the bridge. The attacks signaled a new era in national defense.
Electronic communications bore the brunt of government complaints that the enemy had outpaced the government in an information arms race, and not surprisingly some of the most contentious features of the PATRIOT Act involved provisions to expand government powers of surveillance, information collection, and secrecy:
http://larrydownes.com/the-patriot-act-last-refuge-of-scoundrels/
The End of the American Internet
In 1998, all hell broke loose as the U.S. government considered how to govern the network it had created. That fight has now ended, with a whimper:
Horsemen of the Patent Apocalypse
No one would seriously disagree with my observation that the patent system has become the single greatest obstacle to innovation faced by entrepreneurs and established companies alike.
Which is ironic, because the only reason the system exists at all is to encourage innovation.
In the U.S., patents have been around since 1790. Many would argue that the existence of this powerful but short-lived monopoly protection (originally only 14 years) given to inventors of novel and useful technology was crucial in America’s transformation from an agricultural to industrial economy.
Unfortunately, in the transformation from industrial to information economy, the system is showing both its age and the poor fit of many of the baubles and ornaments hung on it over the years by Congress and the courts. As I write in Law Eight of The Laws of Disruption, the unique economic properties of information call for a very different kind of incentive system, one that current information law doesn’t provide.
For more, see http://larrydownes.com/horsemen-of-the-patent-apocalypse/
Fall 2009 Hearsay Culture schedule posted
I am very excited about the slate of upcoming guests for Hearsay Culture this quarter! Ranging from copyright experts to technology philosophers, this quarter should be fun and educational. Hopefully you will enjoy listening to the interviews and learn a bit as well!
10/12: Speaker Series - Mark Lemley - The Patent Crisis and How the Courts Can Solve It
End: October 12, 2009 2:00pm
Location
Widely recognized as a preeminent scholar of intellectual property law, Mark A. Lemley (BA '88) is an accomplished litigator—having litigated cases before the US Supreme Court, the California Supreme Court, and federal circuit courts—as well as a prolific writer with more than 100 published articles and six books. He has testified numerous times before Congress, the California legislature, the Federal Trade Commission, and the Antitrust Modernization Commission on patent, trade secret, antitrust, and constitutional law matters. He is also a partner and founder in the firm Durie Tangri LLP. His contributions to legal scholarship focus on how the economics and technology of the Internet affect patent law, copyright law, and trademark law; and at Stanford he currently acts as the director of the Program in Law, Science & Technology, and the director of the LLM Program in Law, Science & Technology.
Before joining the Stanford Law School faculty in 2004, he was a professor of law at the UC Berkeley School of Law (Boalt Hall) and at the University of Texas School of Law. He also served as counsel at Fish & Richardson and Brown & Bain as well as clerked for Judge Dorothy W. Nelson of the U.S. Court of Appeals for the Ninth Circuit.
CIS and the Federalist Society sponsor Mark Lemley's talk on his new book The Patent Crisis and How the Courts Can Solve It.
Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescription drugs wreak havoc on information technologies and vice versa. According to Dan L. Burk and Mark A. Lemley in The Patent Crisis and How the Courts Can Solve It, courts should use the tools the patent system already gives them to treat patents in different industries differently. Industry tailoring is the only way to provide an appropriate level of incentive for each industry.
Burk and Lemley illustrate the barriers to innovation created by the catch-all standards in the current system. Legal tools already present in the patent statute, they contend, offer a solution—courts can tailor patent law, through interpretations and applications, to suit the needs of various types of businesses. The Patent Crisis and How the Courts Can Solve It will be essential reading for those seeking to understand the nexus of economics, business, and law in the twenty-first century.
The Net Neutrality Walk of Shame
It just gets worse...less than a week after the FCC Chairman calls for simple rules to enforce Net Neutrality, all the thieves have fallen out. Everyone thinks their view of the problem is simple and uncomplicated, and that those who understand it a different way are being intentionally confusing. No surprises here; this has been the modus operandi of the communications industry (whatever that means) and its regulators, lobbyists, and lawyers since 1974, when this fight really started. For the gory details, see http://larrydownes.com/the-net-neutrality-walk-of-shame/.
Joyce Estate Pays $240,000 In Attorneys' Fees To Shloss And Her Counsel
The long saga of Professor Carol Shloss's dispute with the Estate of James Joyce over her right to use copyrighted source materials in connection with her biography of Lucia Joyce has come to a remarkable end: Last May, the Court ordered the Estate to pay more than $326,000 in attorneys' fees. After initially appealing that decision to the Ninth Circuit, the Estate thought better of it and agreed to pay $240,000 in fees to resolve the matter once and for all.
This lawsuit represented the culmination of more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit Professor Shloss from quoting from anything that James or Lucia Joyce ever wrote for any purpose. As a result of these threats, significant portions of source material were deleted from Shloss's book, Lucia Joyce: To Dance In The Wake. Roughly a year into the lawsuit, the Estate agreed to settle the case on terms that permit the publication of the material that was deleted. But Shloss also demanded the Estate pay attorneys' fees to compensate her counsel for the many hours they put in vindicating her rights in the face of the Estate's assertions of infringement. With this payment, much of that cost has been recouped.
The key here is to realize there are solutions to problems like the one Carol Shloss faced other than simple capitulation. The risks and costs of standing up for important rights like hers may be significant, but they can be managed. The playing field can be leveled and the tables can be turned. I hope this fact is impressed not only on other scholars, but also on the institutions that need to support them when they are faced with threats like these, as well as lawyers who are in a position to donate their time to help.
I hope what we accomplished here becomes a model for dealing with problems like the one Carol faced, whether my organization is involved or not. Whether that happens or not, I'm proud of Carol for standing her ground, proud of what we accomplished with her, and proud to have worked with the fantastic team of lawyers that got us here.
Paris in the Ninth Circuit
I simply could not resist sharing this one, for those who don’t check IPKat regularly. Apparently, transformativeness is not only a big deal in copyright fair use law, but also in tort claims for misappropriation of celebrities’ name and likeness (aka the right of publicity).
In the copyright context, at least, the underlying work – i.e., the work that is being sufficiently transformed (or not) by the defendant - must be original in the first place in order to give rise to a legal action. Would Paris Hilton’s pitch “That’s hot” qualify? Obviously not. But when Paris says “That’s hot” – then, folks, we have some heavyweight first amendment issues coming our way…
The Persistent Myths of Identity Theft
Stealing credit card numbers from corporate computers is a serious crime, but it is not "identity theft." Why does terminology matter? See below:
http://larrydownes.com/the-persistent-myths-of-identity-theft/
Zombieland - Net Neutrality rises from the grave
Net neutrality is back. Rather than rehash my earlier arguments against it, I point out a few relevant differences between the legislation proposed last time around and the proposed rulemaking described in Chairman Genachowski's speech today:
Spotlight on CIS
Securing Privacy in the Internet Age
Edited by Anupam Chander, Lauren Gelman, and Margaret Jane Radin.
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CIS Fellow Elizabeth Townsend Gard
Non-resident fellow Dr. Elizabeth Townsend-Gard is an Associate Professor of Law at Tulane University Law School. With the help of her students, Elizabeth has developed the "Durationator," an online tool and accompanying study that tracks copyright duration in the U.S. and abroad. A beta version is expected to be released in January 2009. Their progress can be followed on her blog.
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