Minnesota's Broad Publicity Rights Law, The PRINCE Act, So Broad That It May Violate Itself

from the subtle,-guys,-subtle dept

We've written many posts on the area of so-called "publicity rights" laws. These are state laws that try to create a newish form of intellectual property around someone's "likeness" or other identifying features. A few years ago, Eriq Gardner wrote the definitive piece detailing the rise of publicity rights as a new way to try to lock down "protections" for things that don't really need to be protected. The initial intent behind many of these laws was to avoid a situation where there was a false endorsement -- basically to stop someone from putting an image or likeness of a famous person in an ad to imply support. But the law has (not surprisingly) expanded over time, and there have been many, many crazy battles over publicity rights -- including ones concerning Marilyn Monroe, Manuel Noriega, Katherine Heigl, Lindsay Lohan, Lindsay Lohan and Lindsay Lohan.

Since there's no federal law over this, it's all based on a bunch of state laws, which vary quite a bit from state to state. For example, a big part of the publicity rights case concerning Marilyn Monroe was over whether NY or California publicity rights laws applied to her estate. In California, the publicity rights continue after death. In NY, they do not. For tax reasons, after Monroe died, her estate convinced California tax authorities that Monroe was a NY resident at the time of her death. That saved them on some taxes, but it created a problem for them when they realized it meant that they couldn't use publicity rights laws in NY. So they suddenly started claiming publicity rights in California anyway, until a court rejected that plan.

That brings us to Prince. The artist who both embraced and struggled with the internet throughout his lifetime, was always focused on one thing in particular: control. While some of his actions seemed contradictory (embracing the internet at one moment and slamming it the next), when viewed through the lens of "he wanted ultimate control," the actions fit a pretty clear reasoning. But, it turns out that Minnesota, where Prince famously lived, there is no post-mortem publicity rights.

No worries, thought some Minnesota legislators, apparently, let's just rush through as quickly as possible a brand new law to create massive and widespread publicity rights for the deceased. Hell, they thought, why not call it the PRINCE Act (Personal Rights in Names Can Endure Act -- because, nothing matters any more).

Of course, like basically any law that is rushed through in response to an event, like someone's death, it appears that the people rushing it through haven't spent any time thinking about the actual impact of what they're proposing. Instead, it appears that Rep. Joe Hoppe wanted to get his name in the headlines as "helping" the Prince estate to stop the "exploitation" of Prince. Except this law is insanely broad and will be abused to stifle expression. The bill first declares:

An individual has a property right in the use of that individual's name, voice, signature, photograph, and likeness in any medium in any manner.

That's pretty damn broad. To be fair, there are a few limitations included in the bill. It does allow for fair use, but that's limited to use that's "news, public affairs or sports broadcast." No idea why a sports broadcast is exempted here, but okay. The law also can be read to only apply to commercial use, since it applies to use "on or in products, merchandise or goods" or "for purposes of advertising or selling..." or for fund raising. And there is a limitation that just using the "name, voice, signature or photograph" "in a commercial medium does not constitute a use for purposes of advertising or soliciting solely because the material containing the use is commercially sponsored or contains paid advertising." So you could argue that you won't get hit for just posting a photo on social media or something, even if there are ads on the page.

But seeing how widely we've seen publicity rights claims abused, you could easily see this being abused. Any Prince cover artist would basically be required to get a license. Someone writing a book about Prince or that discusses Prince might violate the law -- and, at the very least, might face a lawsuit to determine if it's fair use. And, somewhat ironically, as our own Tim Cushing points out, one could read the bill itself as violating itself. After all, it's using Prince's name, and it's clearly being used to "advertise." You could also make a strong argument that it's being used for fund raising of the politicians pushing it.

In fact, Hoppe even admits that he's deliberately exploiting Prince's name:

“I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said.

So it's okay for Hoppe to exploit Prince's name and death... for the purpose of making sure no one else exploit's Prince's name and death? How does that work.

I know that Prince really liked to have control over everything, but it really feels a lot like this move is about figuring out how Prince's relatives will be allowed to cash in on his estate. It's not clear why politicians should be aiding such a maneuver.

Filed Under: intellectual property, joe hoppe, minnesota, prince, prince act, publicity rights

Greenpeace Publishes Leaked TTIP Documents... Show How Backroom Deals Are Driven By Lobbyists

from the because-of-course-they-are dept

We've written plenty of stories about the TTIP (Transatlantic Trade & Investment Partnership) agreement being worked on between the US and the EU. Think of it as the companion to the TPP, which covers the US and a variety of countries around the Pacific ocean. Like the TPP, the US has demanded extreme levels of secrecy around the negotiations (in the past, the US negotiating body, the USTR, has admitted that the more the public is aware of the details, the less likely they are to support the agreement). And while there have been reports out of the EU arguing that negotiators there are more willing to be more open about the negotiations, so far, the US has not allowed it. This has resulted in some crazy situations including secretive "reading rooms" where politicians are carefully guarded if they look at the current drafts -- and where they're not allowed to bring any device or copy anything from the documents.

Now, Greenpeace has leaked a bunch of the TTIP documents... and also set up their own "reading room" which mocks the secrecy of the current reading rooms, by making it very, very transparent:

Krasse Aktion von Greenpeace. Haben nen transparenten #TTIP Leseraum vor der US Botschaft … https://t.co/CZC0myHq5t pic.twitter.com/N0Iv8eHNwc

— Sebastian Jabbusch (@SebJabbusch) May 2, 2016

As for the contents revealed, it's pretty much what everyone suspected. Most of the focus, so far, is on details showing that the US has been pressuring the EU to loosen various consumer and environmental protections in the EU. While it hasn't received as much attention, the leak also does suggest problems for digital rights, mainly by giving telcos much more power. And while the "intellectual property" chapter does not appear to be included, one of the leaks is the "tactical state of play" document. This document isn't part of the negotiating text, but a general summary on where things are... and it's fairly revealing on a variety of topics, including intellectual property.

In the discussion on the intellectual property agreement, it notes that at the latest negotiation, the US refused to put forth "concrete proposals" on issues such as DRM, but the report notes that these are being pushed strongly by "rights holders." The EU, apparently, is nervous about what kind of language it will eventually see from the US. The US, in response, apparently told the EU negotiators that this would be a different kind of intellectual property chapter from the TPP:

A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement).

When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA.

The report also notes that Congress' unwillingness to pass laws to stop patent trolls or in support of (awful) broadcast rights, public performance rights and resale rights, may be an issue, since all three are important to EU rightsholders. We've covered all three issues at various points in time, and all three involve basically expanding copyright law in dangerous ways that will further limit the public's rights. In this case, it looks like it's the EU that's pushing more strongly for them, which is too bad. The public performance rights have the most forward progress in the US right now, with the push to ratify the Beijing Treaty, but hopefully that's an area where legislative indifference kills a horrifically bad idea.

In short, it appears that there are a lot of competing interests on both sides of the Atlantic around the intellectual property chapter, but both sides appear to be focused almost entirely on the protectionist, anti-innovation, anti-public interests of specific rights holders and how to make them happy. There's basically no discussion of how all of this impacts the public.

That's not too surprising, but it also shows why they've worked so hard to keep these documents from being seen by the public. The TTIP agreement was already way behind the TPP agreement, and it's quite doubtful that a final agreement will be reached before the new US administration is in place, which could result in some pretty massive changes in terms of what the White House is demanding. But, as of right now, the agreement looks like yet another mess where lobbyists try to divvy up the spoils in taking things away from the public.

Filed Under: backroom deals, eu, intellectual property, leak, lobbyists, tafta, transparency, ttip, ustr
Companies: greenpeace

USTR: Foreign Governments Engaging In Censorship And Rights Abuses Should Add IP Enforcement To Their 'To Do' Lists

from the let-the-USTR-set-your-priorities-for-you dept

If it's mid-spring, it means it's time for the US Trade Representative's "Special 301 Report," the annual "event" that names and shames countries who don't live up to US industries' intellectual property protection ideals. The same countries that have made the list for years still make the list, although a few have moved up a notch from the "Priority Watch" list to just the normal "Watch" list.

There are lots of familiar names on the lists, including such perennial favorites as China, India, Russia and… Canada. The report offers congratulations to countries like Italy, which has managed to steer clear of the watchlists by instituting censorious IP enforcement procedures like site-blocking. And it pats other countries on the head for ceding to the USTR's IP imperialism in exchange for upgraded 301 listings.

USTR has noted the willingness of two Watch List countries, Turkmenistan and Tajikistan, to work with the United States on improving their IPR protection and enforcement regimes and will conduct an OCR for each country to evaluate whether specific steps taken merit their removal from the Watch List.

The USTR has no interest in determining whether the US's IP laws are actually a good fit for other nations, especially those with a host of more pressing problems. All it cares about it whether they live up to the American ideal, as stated by the loudest "more-is-better" IP enforcement proponents. All in all, it's a completely ridiculous bit of paper rattling, served up annually for maximum theatricality.

Sadly, many of those who have landed on the USTR's Naughty 301 list take this process far too seriously. Even at its gravest, the USTR's only real threat is that if things don't change, it will be forced to print out Country X's name under a different bold sub-header in next year's report.

USTR extends the current OCR of Paraguay, which is currently on the Watch List, to provide additional time for conclusion of a bilateral IPR Memorandum of Understanding (MOU). USTR encourages Paraguay to conclude the MOU by June 30, 2015, and notes that if Paraguay does not do so, USTR will evaluate possible implications accordingly, including with respect to Paraguay’s status under Special 301.

Meanwhile, the USTR wants governments with histories of human rights abuses to institute stricter IP-related policies -- one that should better aid them in achieving their censorious ends. Thailand, which has already put mass internet surveillance in place to make sure its king remains unbesmirched, is encouraged to put its police force to use to round up infringers. Pakistan, itself engaged in censorship and mass surveillance of its citizens, is told it should hand over ex officio power to law enforcement to move against infringers without having to wait around for rights holder complaints. Ecuador, which already knows a thing or two about abusing the DMCA process, is elevated to the "Priority" list for not treating other nations' IP as worthy of the same sort of censorious actions. The USTR wants Mexico to divert law enforcement resources to combating counterfeiting and piracy, as if dealing with the consequences of four decades of US drug warring wasn't enough to keep it busy. And the USTR issues demands to Venezuela, as if that dumpster fire of a government has any interest in listening to what a US representative has to say -- especially one acting on behalf of a handful of US industries.

Like every year, the report is a joke. And it's not even a report -- not in the normal definition of the word. There's no independent action by the USTR to investigate IP laws and violations elsewhere in the world. Instead, it relies on submissions from entities like the MPAA and BSA and writes their accusations up as a "report" on the state of IP protections elsewhere in the world. Unfortunately, there aren't enough countries in on the joke. Canada, for one, at least issues nothing more than an eye roll in response to being listed as one of the world's top offenders, despite having IP laws at least as stringent as the United States'. And there's something both surreal and ugly about a process that includes the executive vice president of the American Apparel and Footwear Association -- whose members depend heavily on cheap foreign labor -- complaining that other countries aren't doing enough to prevent citizens from purchasing affordable knockoffs of the same clothes they're making for US companies, but can't actually afford to buy.

Filed Under: canada, censorship, copyright, ecuador, intellectual property, mexico, pakistan, special 301, special 301 report, ustr

Latest Version Of Anti-TPP, RCEP, Shows That Its Intellectual Property Provisions Are Even Worse

from the from-bad-to-worse dept

Last summer, we wrote a bit about the Regional Comprehensive Economic Partnership (RCEP), a trade agreement that is being worked on by a bunch of Asian countries, and which is often described as an "anti-TPP" or, at the very least, a competitor to the TPP. It's being driven by China and India -- two countries who were not in the TPP process. Given how concerned we were with the TPP, we had hoped, at the very least, that RCEP would be better on things like intellectual property. Unfortunately, some early leaks suggested it was even worse. And while the TPP is still grinding through the ratification process in various countries, RCEP has continued to move forward, and the bad ideas have stuck around.

Knowledge Ecology International just released a leaked copy of the agreement's draft intellectual property chapter, and it's basically chock full of bad ideas. As KEI's Jamie Love notes:

The RCEP will be a massive trade agreement and the content of the IP Chapter is important. It will bind India and China, two countries left out of the TPP. Japan and Korea are trying to push many of the worst ideas from ACTA, TPP and other trade agreements into the RCEP IP Chapter. Some of the issues that negotiators did not understand in the TPP, such as the damages provisions, are also lurking in this text, creating risks that negotiators will do worse than they think, because the secrecy of the negotiations insulates the negotiators from timely feedback on technically complex issues. Japan and Korea are pushing for test data monopolies, without the same safeguards available to patent monopolies. There are proposals for patent extensions, restrictive rules on exceptions to copyright, and dozens of other anti-consumer measures, illustrating the power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways.

The TPP is not good on intellectual property (at all). But seeing RCEP apparently be just as bad, if not worse, is not exactly encouraging. As I've said in the past, I think free trade is an important ideal, but free trade agreements are increasingly about something entirely different, and it's about backdoor (and backroom) mechanisms for putting in place regulatory frameworks that favor certain legacy players.

Filed Under: asia, australia, china, india, intellectual property, japan, korea, rcep, tpp, trade agreements

California Assembly Looks To Push Cities To Copyright & Trademark Everything They Can

from the this-is-a-bad,-bad-idea dept

Here's a bad idea. California Assemblyman Mark Stone is trying to get state and local governments to register copyright on basically anything they can. He may be doing so for what he thinks is a good reason, but the logic is very, very flawed.

If you've followed Techdirt (or US copyright law) for any length of time, you're probably familiar with the fact that the federal government is barred from claiming copyright on any work created by the federal government (but it is able to hold copyrights that were transferred to it, which is another issue for another day). However, with state law, it's a bit more murky. Many have (quite reasonably) argued that this same rule should apply to state laws as well. But states sometimes like to claim copyright in their works -- and thus, for now, it's officially a matter delegated to each state to decide for its own works. Remember when the state of Oregon claimed copyright in its own laws?

Here in California, government entities can claim copyright, but in very limited circumstances. In an important ruling back in 2009, a state appeals court said that under California's Public Records Act, public entities could only copyright a very limited set of things if first receiving explicit approval from the state government. The ruling in Santa Clara County v. Superior Court noted that based on the state's public records laws, government-created works should be assumed to be public domain, unless the state explicitly deems a category of work to be covered by copyright. In talking about the fact that California's Public Records Act says that nothing is intended to "limit any copyright protections" the court said:

In our view, that phrasing operates only as a legislative recognition that copyright protection for software is available in a proper case; it cannot be read as an affirmative grant of authority to obtain and hold copyrights. The Legislature knows how to explicitly authorize public bodies to secure copyrights when it means to do so.

It then goes on to list out a few examples where the code explicitly allowed California public entities to get a copyright. This is why, last year, when the City of Inglewood in California tried to sue a critic for copyright infringement for posting mocking videos of city council meetings, the court quickly tossed it out.

Well, Assemblymember Mark Stone and some of his colleagues appear to want to change that with AB-2880. It would not just allow California public entities to get a copyright, but would pressure them to do so. Here's the key bit that is fairly concerning:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires.

Later in the bill, it then forbids state agencies from waiving any intellectual property rights:

A state agency shall not enter into a contract under this article that waives the state’s intellectual property rights unless the state agency, prior to execution of the contract, obtains the consent of the department to the waiver.

It further notes that any such contract that waives the state's intellectual property rights "shall be deemed void."

Other questionable things in the bill would include requiring state entities to develop databases to track any intellectual property (which will only serve to increase the amount of claimed works, because once you have a database and information is tracked, it's natural to want to see the data grow). The bill also would create an "outreach campaign" to teach public entities all about how they should use intellectual property -- and to "develop sample language for licenses" that would be designed to prevent anyone else from using California public entity works.

Really.

Now, here's the part, where I note why I think Assemblymember Stone and his colleagues meant well, even if they're proposing a horrific idea here that would be immensely troublesome for a variety of reasons. Remember Yosemite? Earlier this year, the famed national park had to dump a bunch of classic and traditional names because it got into a legal fight with the previous "concessions vendor" in the park, who had received a trademark on many of the famous names in the park, and was demanding many millions of dollars in compensation to allow Yosemite to continue using those names.

From what we've heard, AB 2880 is something of a reaction to that totally ridiculous situation. And we agree that what happened with Yosemite was ridiculous and never should have happened, but it appears that Stone et al. got exactly the wrong message out of it. Unfortunately, it's the message that legacy copyright industry players have been falsely trying to indoctrinate the world with, and it's that everything must be owned somehow. The end result? Don't want a concessions company to own the name "Curry Village" or "Ahwahnee Hotel?" Well, then make sure a state entity (in this case, Yosemite Park) owns the rights to them.

This solution, of course, totally ignores the much better and more appropriate solution which is simply don't grant intellectual property monopolies on such things in the first place. The concession company should never have received those trademarks. But the California legislators pushing this bill don't even seem to consider that. They seem to come from the incorrect (and dangerous) view that everything must be owned and, therefore, if it must be owned, why not make sure the public entity does the owning.

The public domain exists for a reason. The California Assembly should embrace it. Having California works go into the public domain isn't something that needs to be stopped, it needs to be supported. There is no "loss" when that happens, the public only benefits. The Yosemite trademarks never should have been valid in the first place. The exact wrong answer is to think "Well, Delaware North shouldn't have them, Yosemite should!" The right answer is: "There is no need for a trademark here."

Of course, there's also another big problem with the bill, even if it was designed to address the Yosemite situation. That one dealt with trademarks. But this bill is inclusive of any kind of intellectual property, including copyrights. It's problematic enough when governments get trademarks, but it's much more troubling when they get copyrights -- which is why the federal government is barred from getting copyrights on works it creates in the first place. That's a good example to set -- and it's one that the sponsors of this bill are explicitly rejecting.

One hopes that this bill was just an ill-thought out response to the ridiculous Yosemite result and that someone can explain to the sponsors of this bill what a huge mistake it is. I've met Assemblyman Stone in the past (he came to one of our Copia events last year) and was quite interested in building stronger relationships between government and the tech industry. Hopefully he's coming to recognize that this bill would not do that at all, but would create a dangerous mess, in which important government records would be locked up. We've seen how this backfires in other states, or other countries that have concepts like Crown Copyright -- and it's frequently used to silence criticism, free speech and commentary. This bill is a bad idea all around.

Filed Under: california, copyright, intellectual property, mark stone, public domain, public entities, trademark, yosemite

Lucasfilm Threatens And Threatens Non-Profit Over Lightsaber Battle Event

from the the-dark-side dept

While we've certainly seen a fair share of ridiculous intellectual property protectionism stemming from the Star Wars Franchise, including overreaches like trying to silence people from photographing legally purchased toys and keeping breweries from making beer-themed puns, one area where Lucasfilm was generally pretty good on was fan participation, at least before the acquisition of the Star Wars rights by Disney. This included fan-fiction and films, gatherings, and role-playing events. That's what makes it so strange to see Lucasfilm decide to bully a non-profit group for daring to put together a "lightsaber battle" event.

Event company Newmindspace had organized the record-setting battles in December involving 9,951 combatants, with 2,000 in San Francisco. In January, it heard from lawyers for Lucasfilm, the San Francisco movie company that brought Star Wars to the world, and holds the rights to the characters, names and concepts within the Star Wars films.

“For three months we have been aggressively pursued by Lucasfilm over the use of the word ‘lightsaber’ in our events,” said Newmindspace co-founder Kevin Bracken. Newmindspace had been putting on “lightsaber battles” for eight years with no pushback, but in January, perhaps because the multi-city battles had drawn media coverage, a letter arrived from the Lucasfilm lawyers. “We immediately stopped using the words ‘lightsaber,’ ‘Jedi,’ ‘Sith’ and ‘The Force,'” Bracken said.

Newmindspace, which also puts on other gathering events, such as massive pillow fights and bubble-gun battles, changed the name of its "lightsaber battle" event, calling it the "Light Battle Tour", and referring to lightsabers and "light swords." As you've probably already anticipated, Lucasfilm immediately declared that the changes weren't enough. The lawyers sent more notices demanding more changes. Which is how what was supposed to be a fun gathering of Star Wars fans engaging in a fake lightsaber battle turned into a space battle between cats.

Since the agreement with Lucasfilm, Newmindspace has pivoted, and although it has more battles planned – including one on April 30 in San Jose’s St. James Park at 8 p.m. – it has put entire galaxies between itself and any Star Wars-related language. Lightsabers have been replaced with “Catblades,” which it must be said bear a certain resemblance to the famed movie weapon of Luke and Obi-Wan. And the sword-fight events are now dubbed “Cats in Space” because, said Bracken, “with the simple addition of whiskers to anyone’s face, they can be completely transformed into a galactic warrior – all it takes is a few brushstrokes and you’re ready to help us defeat evil mice across the galaxy.”

And the galaxy was saved, apparently, from a non-profit having a lightsaber battle, which obviously would have ended all the things for the Star Wars franchise. I don't even understand what the dispute here is. It can't be copyright, because the lightsabers to be used were Star Wars toys that were legally bought. I'm struggling to see how it could be trademark, as this use wasn't commercial and the likelihood of any confusion that the free battle was something put on by Lucasfilm is likely null. Yet, because one side is big and the other is small, now we have a battle of space-cats. Great job, everyone.

Filed Under: copyright, fans, intellectual property, kevin bracken, lightsaber, lightsaber fights, star wars, trademark
Companies: disney, lucasfilm, newmindspac

Chinese Company Learns From The West: Builds Up Big Patent Portfolio, Uses It To Sue Apple In China

from the just-as-Techdirt-predicted dept

For many years now, Western governments have been complaining about China's supposed lack of respect for intellectual monopolies, and constantly pushing the country's politicians to tighten the legal framework protecting them. To anyone not blinded by an unquestioning belief in the virtues of copyright and patent maximalism, it was pretty clear where this strategy would end. Indeed, over five years ago, Mike warned where this was leading: towards China repeatedly punishing foreign companies to protect domestic Chinese firms -- in other words, leveraging patents as a tool for protectionism. A post on the IAM blog about legal action taken by the Chinese company BYD, one of Apple's suppliers, shows that Techdirt's predictions are well on the way to being realized:

Apple says BYD filed a pair of patent infringement suits in the Shenzhen Intermediate People’s Court alleging that the antennae in the iPhone 6 plus and various other Apple products infringe BYD’s intellectual property.

Five other defendants working with Apple were also sued -- four Chinese suppliers, and one Chinese distributor.

BYD asked the [Chinese] bench to require "all six defendants to both cease allegedly infringing conduct and destroy allegedly infringing products".

In effect, this is a patent attack on Apple's supply chain in China, and one that would be devastating for the US company if successful. The IAM post points out:

Of the seven final assembly facilities for iPhones, only one is outside of China (a Foxconn facility in Sao Paolo, Brazil). That means any company with valid Chinese patents that it thinks reads on Apple products potentially has a lot of leverage.

There are two crucial elements that make Apple so vulnerable here. First, the fact that its assembly facilities are concentrated in China, and secondly, because there's a Chinese company with patents it thinks it can use against Apple in that country. A March 2014 press release from BYD boasted that it had already amassed more than 12,000 domestic patents and over 8,000 international ones; the figures today are doubtless much higher. Amongst those domestic patents there are probably many that could come in handy for future legal action against other Western companies that assemble their products in China.

Those in the West who pushed China to show more "respect" for patents must be feeling so proud of the progress that Chinese companies have made in this regard, and so pleased now to see Apple being sued in local courts using China's patent laws.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: china, intellectual monopolies, intellectual property, patent thicket, patents, smartphones
Companies: apple, byd, foxconn

The Ridiculous Rush To Try To Patent Pot

from the *sigh* dept

Over the years, we've had a whole bunch of posts demonstrating various industries where there is no direct intellectual property protection -- and yet where we still find tremendous innovation and competition. These include things like the fashion industry (where you can't copyright fashion designs), the restaurant industry and some others. In fact, a few years ago, a couple of law professors wrote an entire book highlighting competitive and innovative industries where there was a lack of intellectual property protection. And, yet, time and time again, we see people who show up in the areas where there's lots of competition and lots of innovation, and insist that those industries need more intellectual property protection.

The latest such industry? Apparently the legalized weed industry.

As you're probably aware, the US has been moving more and more towards legalizing marijuana, starting mostly with "medical marijuana" (and I use the quote marks there very deliberately), and increasingly opening it up for all kinds of recreational use (four states so far...). And, if you've paid any attention to the legalized pot business at all, you'd know that it's (1) a huge business with (2) tons and tons of competition and (3) an incredible amount of innovation. Lots of pot growers are trying to come up with newer and better strains, and there's a ton of other innovation going on concerning ways to ingest the stuff.

But the lawyers are descending... and they're telling people they need to "protect" everything. The article linked above, in the SF Chronicle, is ridiculous on multiple levels. It zips back and forth between patents and trademarks, doing little to explain the (vast) difference between the two. It also presents an entirely one-sided story, insisting (totally incorrectly) that "venture capitalists" require intellectual property protection to invest:

Investors, particularly those coming from the tech world, “are attuned to coming into a company and trying to secure as much intellectual property as they can quickly,” said Timothy Yim, the Startup Policy Lab’s director of data and privacy, who counsels cannabis-related startups.

“They want to make sure that you have as much of your intellectual property secured as possible” before the invest, said Kyndra Miller, an attorney whose San FranciscoCannabusiness Law practice specializes in weed clients, including Blake.

It's true that there are some investors focused on "intellectual property," but they tend not to be very good. Most of the top investors have no problem at all admitting that focusing on intellectual property is a mistake, because good venture capitalists are betting on upside. All intellectual property does is protect your downside risk most of the time. But the article just presents it as fact and keeps repeating the misleading message that locking down intellectual property is "necessary."

“A year and a half ago, we started telling people to think about (intellectual property) because this is what’s coming down the line,” said Reggie Gaudino, vice president for scientific operations and director of intellectual property at Steep Hill Labs, a Berkeley cannabis analytics lab with operations in several states. “Only in the last few months have people started to listen to what we had to say.”

Even worse, the article (again, ridiculously and misleadingly) insists that "open source" is somehow anti-business and a "kumbaya" concept, rather than a good business strategy:

“The reality is that most mature businesses have established the importance of intellectual property,” said Gaudino. “But one of the first things I noticed (in the cannabis industry) is that none of growers and breeders wanted to discuss that. They’d say, ‘No, we’re all open source,’ and the whole cannabis kumbaya stuff. And I’d say, ‘Let me know how that works out for you, because once this is legal, Big Pharma and Big Ag are going to come in here and grab whatever they can.’”

The reality is that big businesses tend to focus on intellectual property because they stopped innovating, so rather than compete, they like to use the law to block competition. And tons of open source offerings are very much about real (big) businesses, and there's no reason that shouldn't be true in other fields as well.

There's nothing wrong with folks in the industry trademarking their brand names and specific designs and such, but the idea that people should start to look to "patent" specific strains is deeply problematic:

To try to bring some order to the industry through science, Steep Hill analysts are using leading-edge technology, like a $1 million DNA sequencer, to “try to establish the genetic map of cannabis” as Gaudino puts it.

He said all of the marijuana strains found on dispensary shelves are blends “from the hand of man,” and he believes that they will be able to be patented once they are definitively mapped. In the last 1½ years, Steep Hill scientists have accumulated 1,000 samples of weed, sifting through some 400 strains that are on the market. Many of them, Gaudino said, share numerous similarities.

In other words -- using patents to limit innovation and competition, which is the exact opposite purpose that the law is intended for -- and in an industry that's already thriving, with tremendous innovation and competition. Once again, we see more evidence of how frequently patents have nothing to do with "promoting" innovation, but are used to stifle innovation and competition.

Filed Under: intellectual property, marijuana, patents, pot, reggie gaudino, weed
Companies: steep hill labs

Techdirt Reading List: Piracy: The Intellectual Property Wars From Gutenberg To Gates

from the the-pirates-go-way-back dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

This week, we've got a massive tome of a book in Piracy: The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns. Weighing in at over 600 pages, this is a highly readable and entertaining look at the fact that the whole concept of "intellectual property piracy" (as much of a misleading term as that may be) didn't just start with the rise of the internet, but has been going back centuries.

This book really helps put into perspective the fights over the past few years, and shows how these battles concerning the freedom of information and knowledge go back pretty much since the dawn of the ability to create "content" in some fixed form. Even better, it also highlights how over and over and over again, what starts out as "piracy" actually turns out to be key innovations that drives the whole world of culture forward. It's the kind of perspective that is sorely needed -- but frequently lacking -- from debates over the topic. While I've been familiar with many historical examples of fights over "infringement," this book took my knowledge and understanding to new levels. It's packed with useful information.

Filed Under: adrian johns, history, intellectual property, piracy, reading list, techdirt reading list

Full Text Of TPP Released: And It's Really, Really Bad

from the no-wonder-they-were-hiding-it dept

Yesterday, a month after it was announced that the TPP was "finalized," the official text was finally released. Immediately after that, USTR (somewhat oddly) reposted the whole thing to Medium -- apparently in an effort to appear transparent for an agreement that was negotiated for years in secret. The overall document has been broken out into many different sections, but if you add it all up it's over 6,000 pages long. The Washington Post did what none of the governments actually did and made the document searchable. I spent much of yesterday trying to read through the various sections, and it appears to be super problematic. Along with the text, the USTR posted a bunch of nonsense propaganda about what they want people to think the TPP is really about.

But the problems with the TPP run deep: Despite earlier promises from both the USTR and Australia that intellectual property would not be subject to the "corporate sovereignty" provisions (which they call "investor state dispute settlement" or ISDS), they absolutely are. And this is a massive problem. It means that any country that's a member of the TPP can effectively never move its intellectual property rules in the direction of better benefiting the public -- because some foreign company will claim that this takes away their expected profits. Section 9.1 lists "intellectual property" as the type of asset that is a part of the ISDS process.

We already know what a mess this can create. Remember Eli Lilly is currently using NAFTA's corporate sovereignty provisions to demand half a billion dollars from Canada, after Canada rejected two of its patents because Canada realized the drugs that Eli Lilly had tried to patent did not deliver the benefits the company claimed when trying to get the patent. Canada said that was a good reason to reject the patent. Eli Lilly claimed that this was taking away its assets and demanded half a billion dollars.

Now imagine what would happen if anyone tried to... say... shorten copyright terms? Or require registration for copyright? Or fix the patent system so that you can't patent obvious and broad concepts any more? Does anyone doubt that any country that did so would be beset by these kinds of attacks, which wouldn't even be handled by courts, but by a tribunal of corporate lawyers, often the very same lawyers these companies would hire for other work? Including intellectual property in the investment chapter is a poison pill designed to ensure that intellectual property can only continue to ratchet up, rather than back.

Now, there is a very limited "exception" concerning the "revocation, limitation or creation of intellectual property rights" if it's "consistent" with the TRIPS Agreement -- an earlier trade agreement regarding intellectual property. As KEI notes, this limited exception isn't going to cut it:

The exceptions for intellectual property in the TPP investment chapter are important, and often designed to accommodate existing state practice in the United States or other countries, but one should not overstate the degree to which intellectual property rights are excluded. The meaning of the WTO TRIPS agreement and the TPP IP Chapter itself will be subject to review and arbitration led by private right holders, on topics such as "adequate" or "reasonable" compensation or remuneration for non-voluntary uses of intellectual property rights, the standards for granting patents, and other issues, to determine "to the extent" an action of policy is "consistent" with the TRIPS or the TPP IP Chapter. This not only leads to forum shopping (TRIPS and TPP IP obligations can be interpreted via TPP ISDS), but also empowers private right holder investors (and not consumers) to bring cases and benefit from sanctions against governments.

KEI also notes that these "exceptions" don't apply to any of the new expanded IP requirements that the TPP has introduced -- including things like much higher damages requirements and the possibilities of criminal charges for the vaguely defined "commercial scale" infringement.

What's kind of amazing here is that we've spent years warning about problems with the "intellectual property" chapter and the "investment" chapter individually, and the absolute worst part of this agreement is the way the negotiators tied them together in a ridiculous and dangerous way. This is much, much worse than many of the things we feared would be in the agreement, and it's made even worse by the fact that the USTR directly promised this would not be in the agreement.

There are a number of other problems as well: KEI warns that at least part of the e-commerce provision can be read to ban a requirement for open source software, which would seem to undermine certain open source licenses, like the GPL. Michael Geist notes that the document confirms that Canada basically has agreed to wipe out many useful copyright reforms from a few years ago, and to extend its copyrights yet again, robbing the public of the public domain. Of course, that raises the question of whether or not someone could make an ISDS claim that Canada is taking away their "investment" in Canada... Oh, who am I kidding. ISDS doesn't apply to the public... just to companies.

There are also, as expected, serious problems for affordable medicine and healthcare, privacy, surveillance and more. Despite claiming to demand "nondiscriminatory treatment of digital products" and "cross border transfer by electric means" of information -- an anti-censorship/blocking provision -- the agreement lets Malaysia off the hook on such requirements.

In addition to that, last month we wrote about how it appeared that the negotiators had carved tobacco out of the ISDS section, but upon reading the whole thing, people are pointing out that it's not actually true, as it makes that part voluntary for countries to decide themselves.

In short, the TPP appears to be a massive mess, and in some ways worse than we feared. According to some, concurrent with the release, President Obama told Congress of his intent to sign the TPP, which started the 90-day clock for Congress to "review" the agreement -- conveniently making sure that much of the debate is limited by the end-of-the-year holidays, long Congressional "recesses" that happen around this time, and other key end-of-the-year business. In short, this agreement that was negotiated in near total secrecy (unless you were a big corporate lobbyist) is a really bad deal, and the administration is going to play every trick it can come up with to get it approved. Now would be a good time to let your elected officials know that they need to vote against the TPP.

Filed Under: copyright, corporate sovereignty, intellectual property, isds, patents, tpp, ustr