People Who Have Actually Heard of the Supreme Court Don't Like It Very Much

from the whozzat? dept

In August, we lamented the fact that nearly two-thirds of Americans couldn’t name a single member of the Supreme Court. At the time, we blamed it on the perceived stupidity of our nation’s population, calling for televised oral arguments in the hopes that they’d someday compete in the ratings with reality shows like Keeping Up With the Kardashians. Unfortunately, given the high court’s resistance to change and the burgeoning evidence that we live in a country that’s overflowing with Honey Boo Boos, neither is going to happen any time soon.

But that’s really beside the point, because even if SCOTUS arguments were televised, they’d likely appear on C-SPAN, a channel that some people have probably never heard of before. Another thing that some people have never heard of before is the Supreme Court itself. That was a serious statement….

According to the latest Pew Research Center survey of 1,501 adults, conducted between March 13 and 17, approximately two percent of respondents claimed that they had “never heard of” the Supreme Court, which is the highest percentage that response category’s seen since 2007. Really? Really?!

Unlike the names of our nine Supreme Court justices, knowledge of the fact that the Supreme Court exists in the first place isn’t mere trivia question fodder. This is something that people learn in grade school, and considering that many of the Court’s high-profile cases have received hours upon hours of television coverage on basic cable, it’s shocking — nay, mortifying — that some can claim they’ve never heard of highest court in all the land. In sum: America, F**K YEAH!

Among the people who have heard of the Supreme Court, the justices’ favorability ratings are near an all-time low. Here’s more info (people who’ve never heard of SCOTUS should read this S-L-O-W-L-Y):

A national survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that 52% view the court favorably, while 31% view it unfavorably. Those ratings have changed only modestly since last July, shortly after the court’s ruling to uphold most of the Affordable Care Act.

The WSJ Law Blog (sub. req.) notes that in years prior, between 1987 and 2010 in particular, the Supreme Court’s favorability rating never fell below 57%, and oftentimes was higher than 70%.

Are people just pissed off that “nine unelected people from a narrow legal background” have been responsible for many of our major democratic decisions (e.g., health care reform, immigration enforcement, affirmative action, and gay marriage)? That’s apparently what Justice Kennedy thinks, so it’s probably safe to assume that laypeople feel the exact same way.

But hey, at least these people have an opinion about the Supreme Court and know that it’s not some sort of a fictitious entity like the Justice League. We’re probably better off this way.

Supreme Court’s Favorable Rating Still at Historic Low [Pew Research Center]
A Hardening Opinion of the Supreme Court [WSJ Law Blog (sub. req.)]

More stories from Above The Law

• Things Oliver Wendell Holmes Didn’t Say
• 3D Printers Don’t Kill People, Guns Made With 3D Printers Kill People.
• Career Alternatives for Attorneys: Disney World Guru

Filed Under: knowledge, opinion, supreme court

A Fitting Tribute For Aaron Swartz: Researchers Post Free PDFs Of Their Research Online

from the it's-a-start dept

As we noted earlier, one thing that Aaron Swartz would have almost certainly wanted, as a memorial for his own accomplishments, would be for others to continue that work and to do much more with it. It's a small thing, but it's been inspiring to watch one aspect of that come to life: some academic researchers suggested a bit of simple civil disobedience in asking other researchers to post their own research publicly for others to download, and use the tag: #pdftribute. Many researchers quickly jumped at the chance, leading some to set up a website, appropriately called PDFtribute.net to collect all the tweets and the links to all of that research.

It's unclear how much of that research is technically "allowed" to be published like this. If you're not familiar with the dirty sausage making of academic research, many journals claim all copyrights on research (despite not paying a dime for it -- and, in some cases, even requiring the researchers or their institutions to pay to submit the papers in the first place). Many then have policies that bar the original researcher from further distributing the work, so it's likely that some of the released research is in violation of those agreements. That said, over the past few years, more and more journals (often due to significant pushback from academics) have recognized how ridiculous this is, and many have started to allow -- either officially or with a nod and a wink -- academics the right to post free copies of their own research on their own website. A few, much more enlightened journals even encourage researchers to post the work.

Either way, if one of the legacies of Aaron Swartz's all-too-short life is to get more people interested in open access to research, and to drive that movement forward, that's a good thing.

Filed Under: aaron swartz, civil disobedience, knowledge, open access, pdftribute, sharing

Sometimes Photos Are Just Facts, And Copying Is To Be Expected

from the knowledge-spreads dept

Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant:

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.

But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.

So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.

Filed Under: alex wild, copying, entomology, knowledge, photography

Knowledge Is A Universal Natural Resource -- And Locking It Up Hurts Everyone

from the time-to-face-facts dept

One of the more important points in understanding some of the fights over the ridiculousness of today's copyright and patent laws is to recognize how knowledge (information) is a natural resource. It is the input that makes other great things. Economist Paul Romer's famous research really showed how knowledge and information as a resource is what creates economic growth. Once you recognize that fact, you begin to run into problems when you think about locking up that natural resource. Think of other natural resources. Do we think the world is better off if there's a greater supply of each of those? An abundance? If we have an abundance of wheat, that's a good thing. If we have an abundance of energy, that's a good thing. There may be side effects of such abundances, but the overall abundance is something worth cherishing.

The problem, however, comes when you have a new abundance where once there was scarcity. And that's because anywhere there's a scarcity, someone has built a business model based on that very scarcity. But that is a business model issue. Years ago, most economies rejected the idea of mercantilism, where governments would purposely build up monopolies and artificial scarcities, because of the realization that, in the long run, everyone was better off with a competitive market. The guy who had the sugar monopoly may have hated it -- but everyone else was much, much better off.

And, so, we go back to knowledge and information. Unlike most other resources, knowledge is not just abundant... it is infinite. As Thomas Jefferson once famously wrote:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

And yet... we still default to thinking that this amazing resource should be locked up. Because it's often easier to see how the guy who owns the sugar monopoly benefits, than to think through the more complicated market in which there are competing sugar providers, each trying to offer a better product, under which consumers benefit at a massive scale, markets grow and opportunity blossoms. It's easier to just focus on the fact that it makes life more difficult for the one monopolist.

And often, it seems that we run into this same issue when it comes to intellectual property law. Brent Ahsley recently wrote an interesting post, in which he talks about how something he created way back in 2002, one of the first DHTML-based embeddable chat windows -- has become a mainstream piece of technology, but one over which Ahsley has no control, nor profits from. But, unlike the typical analysis, Ahsley realizes that the world is much better off this way:

I occasionally find myself talking with someone about facebook chat or google chat and I'll say "I sorta invented that" and point them to my Feb 2002 blog entry where I built and released to the wild what was one of the earliest embeddable DHTML chat windows, using my also free and open what-was-not-yet-called-Ajax library I released in 2000, about 5 years before many people came along and pushed the state of the art much further down the road.

Invariably I am told that I should be rich and that all those sites and people "stole" my ideas. I disagree and say that these were all perfectly obvious inventions to me and all the others who came after me and that it was my duty to the net to feed my work back into it such that folks could stand on my shoulders as I had stood on those of others.

That is how the net works – or at least it used to. It still does in open development circles but the content and patent industries are fighting hard to brainwash everyone that knowledge is inherently owned.

And this, as Ahsley recognizes, is a problem. The world of monopolists is focused on protecting the monopoly. But if Ashley, for example, had patented aspects of his AJAX library, or his embeddable chat, would the world be a better place? It's likely that such chat features would not be as common. It's likely that such chat offerings (which are now everywhere) would not be as powerful or as useful. It's likely that the world would be a worse place. Ahsley, personally, might be a little wealthier -- perhaps someone would pay him to license the functionality, or perhaps he'd successfully sue someone. But the world would be more limited and there would be less to go on.

This, then, is the problem that many of us face in looking at and trying to understand the nature of economics, growth, innovation and progress when looking at the world of monopoly protections. It's easy to see the sugar monopolist, and see how taking down those monopolies might make his job harder (even if it creates a big market with more opportunity to make more money). But to recognize that bigger picture, as Ashley does, is difficult.

Ashley tries to put it all in perspective:

Anything that is knowable is a part of the universe of truth that has no owner and no bounds. The invention or discovery of anything results in the exposure of one or more hitherto undocumented universal truths to the collected human record.

The true and original purpose of copyright and patents is to create a temporary legal fiction which acts in many respects like ownership, conferring upon an individual person rights to control the use and dissemination of morsels of universal truth which they had the luck and/or tenacity to first identify, so they can be recompensed for their contribution to the universe’s growing stockpile of exposed truth for the benefit of all humanity.

The legal expansion to include corporate personhood and subsequent term extensions tending towards permanence of the legal assignment of ownership equivalence amounts to the expropriation and destruction of large parts of humanity’s natural knowledge resources.

It’s not too much different from bulldozing the rainforest.

At some point, it needs to be recognized that the purpose of these laws has been twisted and twisted and twisted to the point that they are broken. They're not acting as a reward for those who discover key elements of knowledge in exchange for sharing them. They've become tolls in and of themselves for the sole purpose of enriching the monopolist. And that takes us right back to mercantilism.

If we were able to reject industrial mercantilism as the wrong economic approach 250 years or so ago, at some point we're going to reach the age where we can reject intellectual mercantilism as well.

Filed Under: copyright, economics, innovation, knowledge, patents, resources

DailyDirt: Back To School Time...

from the urls-we-dig-up dept

It's that time of year again -- time for kids in the US to go back to school after a summer break. There are plenty of folks who argue that summer breaks are unnecessary and waste valuable teaching time. There also seems to be no end of suggestions on how to fix the US education system. Here are just a few more opinions about improving educational systems.

• Would students be better served by taking "applied math" classes instead of pre-algebra, algebra, pre-calculus and calculus? Mothers, don't let your babies grow up to be cowboys, engineers or scientists... [url]
• Google's Eric Schmidt admonishes British teachers for teaching students how to use Microsoft applications -- instead of programming. Out of spite, how about we teach kids how to use Microsoft Visual C++? [url]
• Teachers have a hard job in NYC... and it doesn't help when it's so easy for new teachers to be dismissed as bad teachers. But it's not easy to grade teachers, either. [url]
• Teaching as a career doesn't seem to be a highly-regarded profession, according to several polls. But it's not clear how the trend of diminishing status for teaching professionals can be reversed. [url]
• To discover more interesting education-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Filed Under: education, knowledge, learning, math, schools, teachers

Spoiler Alert: People Enjoy Books More When They Know The Spoilers

from the skip-to-the-end dept

Might as well put the details upfront in this one: "spoilers" apparently don't "spoil" anything. It's pretty standard these days for people to offer up "spoiler alert" warnings when revealing a surprising twist in a story that some might not have read/seen/heard. However, a new study, that tested a variety of books both with and without key points "spoiled," found that people actually seem to prefer a book if they've been told a spoiler ahead of time. While this surprises me a bit (though I'd never really thought that much about it), it makes sense. While I certainly enjoy books/movies with twists, I've certainly read and seen stories while knowing the twist ahead of time and didn't mind it. Instead, in those cases, I end up paying more attention to how we get to the twist, and looking for foreshadowing and whatnot. I can't recall ever feeling "cheated." There are definitely books and movies with twist endings that took me totally by surprise, which I enjoyed. But I'm not sure I wouldn't have liked them just as much if I'd known the "secret" going in.

Filed Under: enjoyment, knowledge, spoilers

Aaron Swartz Indictment Leading People To... Upload JSTOR Research To File Sharing Sites

from the backfiring dept

If it's true that Aaron Swartz's foray into an MIT computer wiring closet was as part of a project to copy JSTOR research and upload it to file sharing sites for open access, then I imagine part of the government's rationale for going after him would be the hope that it would act as a deterrent against anyone else doing the same thing. Of course, as I've pointed out with the feds' attempt to arrest members of Anonymous, it seems likely that this move will backfire in a big bad way. All it does is draw much more attention to the original goal. Indeed, Adam points us to the news that a guy by the name of Greg Maxwell just released 33GB of JSTOR scientific papers via The Pirate Bay because of the indictment against Aaron. In this case, believe it or not, it's all public domain research, which JSTOR is trying to charge hundreds of thousands of dollars to access. Since I have no idea if the content will remain where it is, I'm publishing the entire note explaining what's in the documents and why they're being published. It's very much worth reading and redistributing his message. The bold emphasis is from me, highlighting what I believe are the important points:

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

This archive contains 18,592 scientific publications totaling 33GiB, all from Philosophical Transactions of the Royal Society and which should be available to everyone at no cost, but most have previously only been made available at high prices through paywall gatekeepers like JSTOR.

Limited access to the documents here is typically sold for $19 USD per article, though some of the older ones are available as cheaplyas $8. Purchasing access to this collection one article at a time would cost hundreds of thousands of dollars.

Also included is the basic factual metadata allowing you to locate works by title, author, or publication date, and a checksum file to allow you to check for corruption.

ef8c02959e947d7f4e4699f399ade838431692d972661f145b782c2fa3ebcc6a sha256sum.txt

I've had these files for a long time, but I've been afraid that if I published them I would be subject to unjust legal harassment by those who profit from controlling access to these works.

I now feel that I've been making the wrong decision.

On July 19th 2011, Aaron Swartz was criminally charged by the US Attorney General's office for, effectively, downloading too many academic papers from JSTOR.

Academic publishing is an odd system -- the authors are not paid for their writing, nor are the peer reviewers (they're just more unpaid academics), and in some fields even the journal editors are unpaid. Sometimes the authors must even pay the publishers.

And yet scientific publications are some of the most outrageously expensive pieces of literature you can buy. In the past, the high access fees supported the costly mechanical reproduction of niche paper journals, but online distribution has mostly made this function obsolete.

As far as I can tell, the money paid for access today serves little significant purpose except to perpetuate dead business models. The "publish or perish" pressure in academia gives the authors an impossibly weak negotiating position, and the existing system has enormous inertia.

Those with the most power to change the system--the long-tenured luminary scholars whose works give legitimacy and prestige to the journals, rather than the other way around--are the least impacted by its failures. They are supported by institutions who invisibly provide access to all of the resources they need. And as the journals depend on them, they may ask for alterations to the standard contract without risking their career on the loss of a publication offer. Many don't even realize the extent to which academic work is inaccessible to the general public, nor do they realize what sort of work is being done outside universities that would benefit by it.

Large publishers are now able to purchase the political clout needed to abuse the narrow commercial scope of copyright protection, extending it to completely inapplicable areas: slavish reproductions of historic documents and art, for example, and exploiting the labors of unpaid scientists. They're even able to make the taxpayers pay for their attacks on free society by pursuing criminal prosecution (copyright has classically been a civil matter) and by burdening public institutions with outrageous subscription fees.

Copyright is a legal fiction representing a narrow compromise: we give up some of our natural right to exchange information in exchange for creating an economic incentive to author, so that we may all enjoy more works. When publishers abuse the system to prop up their existence, when they misrepresent the extent of copyright coverage, when they use threats of frivolous litigation to suppress the dissemination of publicly owned works, they are stealing from everyone else.

Several years ago I came into possession, through rather boring and lawful means, of a large collection of JSTOR documents.

These particular documents are the historic back archives of the Philosophical Transactions of the Royal Society--a prestigious scientific journal with a history extending back to the 1600s.

The portion of the collection included in this archive, ones published prior to 1923 and therefore obviously in the public domain, total some 18,592 papers and 33 gigabytes of data.

The documents are part of the shared heritage of all mankind, and are rightfully in the public domain, but they are not available freely. Instead the articles are available at $19 each--for one month's viewing, by one person, on one computer. It's a steal. From you.

When I received these documents I had grand plans of uploading them to Wikipedia's sister site for reference works, Wikisource--where they could be tightly interlinked with Wikipedia, providing interesting historical context to the encyclopedia articles. For example, Uranus was discovered in 1781 by William Herschel; why not take a look at the paper where he originally disclosed his discovery? (Or one of the several follow on publications about its satellites, or the dozens of other papers he authored?)

But I soon found the reality of the situation to be less than appealing: publishing the documents freely was likely to bring frivolous litigation from the publishers.

As in many other cases, I could expect them to claim that their slavish reproduction--scanning the documents--created a new copyright interest. Or that distributing the documents complete with the trivial watermarks they added constituted unlawful copying of that mark. They might even pursue strawman criminal charges claiming that whoever obtained the files must have violated some kind of anti-hacking laws.

In my discreet inquiry, I was unable to find anyone willing to cover the potentially unbounded legal costs I risked, even though the only unlawful action here is the fraudulent misuse of copyright by JSTOR and the Royal Society to withhold access from the public to that which is legally and morally everyone's property.

In the meantime, and to great fanfare as part of their 350th anniversary, the RSOL opened up "free" access to their historic archives--but "free" only meant "with many odious terms", and access was limited to about 100 articles.

All too often journals, galleries, and museums are becoming not disseminators of knowledge--as their lofty mission statements suggest--but censors of knowledge, because censoring is the one thing they do better than the Internet does. Stewardship and curation are valuable functions, but their value is negative when there is only one steward and one curator, whose judgment reigns supreme as the final word on what everyone else sees and knows. If their recommendations have value they can be heeded without the coercive abuse of copyright to silence competition.

The liberal dissemination of knowledge is essential to scientific inquiry. More than in any other area, the application of restrictive copyright is inappropriate for academic works: there is no sticky question of how to pay authors or reviewers, as the publishers are already not paying them. And unlike 'mere' works of entertainment, liberal access to scientific work impacts the well-being of all mankind. Our continued survival may even depend on it.

If I can remove even one dollar of ill-gained income from a poisonous industry which acts to suppress scientific and historic understanding, then whatever personal cost I suffer will be justified--it will be one less dollar spent in the war against knowledge. One less dollar spent lobbying for laws that make downloading too many scientific papers a crime.

I had considered releasing this collection anonymously, but others pointed out that the obviously overzealous prosecutors of Aaron Swartz would probably accuse him of it and add it to their growing list of ridiculous charges. This didn't sit well with my conscience, and I generally believe that anything worth doing is worth attaching your name to.

I'm interested in hearing about any enjoyable discoveries or even useful applications which come of this archive.

- ----
Greg Maxwell - July 20th 2011
gmaxwell@gmail.com Bitcoin: 14csFEJHk3SYbkBmajyJ3ktpsd2TmwDEBb

-----BEGIN PGP SIGNATURE-----
Version: GnuPG v1.4.11 (GNU/Linux)

iEYEARECAAYFAk4nlfwACgkQrIWTYrBBO/pK4QCfV/voN6IdZRU36Vy3xAedUMfz rJcAoNF4/QTdxYscvF2nklJdMzXFDwtF =YlVR
-----END PGP SIGNATURE-----

Filed Under: aaron swartz, academic research, copyright, greg maxwell, knowledge
Companies: jstor, the pirate bay

Supreme Court Says It's Still Inducement Even If You Proactively Took Steps To Make Sure You Weren't Infringing

from the this-is-not-good dept

A blog post by Skip Oliva alerts us to a very troubling Supreme Court ruling in a patent lawsuit that is going to have massive, dangerous unintended consequences -- as pointed out by the lone dissenter, Justice Kennedy. Effectively, the ruling claims that even if you had no idea that a patent existed, if you sell products to other businesses for resale, and it later turns out that those products infringed on a patent, you could be liable for "inducement" to infringe. It's hard to see how this makes any sense at all.

First, the facts of the case. SEB created a deep fryer and got a patent on it. Entirely separate from this, Sunbeam decided it wanted a certain type of deep fryer that apparently had similarities to what SEB made. This isn't surprising. As we've discussed before, it's quite common that multiple individuals/companies have the same idea at the same time. Sunbeam contracted out to appliance maker Pentalpha to make a deep fryer to its own specifications. Pentalpha, in researching the market, came across an SEB deep fryer that had no US patent markings on it, and built its own deep fryer, potentially using some of what it learned from the SEB deep fryer. Separately, it asked an attorney to do a patent search to see if its own deep fryer violated any patents -- and the attorney's search turned up nothing.

Eventually, SEB sued Sunbeam, who eventually settled. After that, SEB went after Pentalpha claiming inducement to patent infringement, claiming that Pentalpha was "inducing" anyone who resold this model of deep fryer (by this point, the company had a few other customers besides Sunbeam) to infringe on SEB's patent. Logically, this makes no sense. Pentalpha had no knowledge of the patent in question and even had a lawyer do a search which failed to turn up anything. While you could claim that Pentalpha was guilty of straight up patent infringement, claiming "inducement" seems ridiculous.

Not to the courts, however. Following both the District Court and the Appeals Court (CAFC, natch), the Supreme Court found that the inducement claim holds, citing "willful blindness."

This is the point where you shake your head in disbelief.

How could this possibly be willful blindness when the company literally went out and hired someone to do a patent search which came up blank? And then, even if you grant the premise that there was "willful blindness" in finding the patents (even though they looked), the Supreme Court went even further in saying that "willful blindness" was the equivalent of full-on knowledge of that which you were being blind to. That's because for inducement to apply, the accused has to have actual knowledge that the product is infringing. Think about that for a second. Willful blindness normally means that you purposely chose not to seek out some information because you didn't want to know the answer. But that's very different than saying that's the equivalent of having that knowledge in the first place. And yet, that's what the court did here.

Justice Kennedy's dissent is reasonably worried about the majority's ruling here:

Yet the Court does more. Having interpreted the statute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. See United States v. Jewell, 532 F. 2d 697, 706 (CA9 1976) (en banc) (Kennedy, J., dissenting) (“When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy”) In my respectful submission, the Court is incorrect in the definition it now adopts; but even on its own terms the Court should remand to the Court of Appeals to con-sider in the first instance whether there is sufficient evidence of knowledge to support the jury’s finding of inducement.

Later he notes that, even if a company were to assume that something likely is patented, it can later do research and conclude otherwise, as was done here. Thus, to claim that there was "knowledge" of infringement, to the level to reach inducement is a massive stretch. Kennedy highlights just how problematic this is, in that it now allows juries to pretend they can step into someone's mind to determine if they "knew" something, based solely on the fact that they sought not to find out that information:

Circumstantial facts like these tend to be the only available evidence in any event, for the jury lacks direct access to the defendant’s mind. The jury must often infer knowledge from conduct, and attempts to eliminate evidence of knowledge may justify such inference, as where an accused inducer avoids further confirming what he already believes with good reason to be true. The majority’s decision to expand the statute’s scope appears to depend on the unstated premise that knowledge requires certainty, but the law often permits probabilistic judgments to count as knowledge.

And this will likely have impacts beyond just patent law. The "inducement" concept is specifically written into patent law... but not into copyright law. In fact, the case law "invention" of inducement in copyright law relied heavily on what was in patent law. That means... this ruling almost certainly would be equally applicable to copyright law as well. Considering all the concerns people already have about orphaned works, think of the massive chilling effects and unintended consequences here. If someone were to make use of a work which they believed to be free of copyright, and even if they had a lawyer declare it free of copyright... if a jury then decides magically instead that they were "willfully blind" and should have known that the work was covered, they may now be liable for inducement as well! That's a massive extension of inducement theory.

Even worse, this appears to go beyond just the realm of intellectual property. Justice Kennedy was particularly spooked by the fact that this ruling -- in a very narrow area of civil law -- likely also applies to criminal law, without any thought at all given to what this might mean in the criminal context:

The Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue.

Yes, based on this particular ruling in a patent case, "willful blindness" may be the equivalent of "actual knowledge," which makes no sense at all. Honestly, it seems the only truly "willful blindness" in this case is from the eight justices who seem to be totally blind to the massive chilling effects this will have.

Filed Under: copyright, inducement, knowledge, patents, willful blindness

Cornell Library Rejects Non-Disclosures On Journal Pricing; Will Reveal All Prices

from the go-big-red dept

One of the more pernicious areas of locking up knowledge that we've seen and discussed involves academic journals. These tend to involve private publishers who get a tremendous amount of completely free labor in terms of content submissions and even reviewers/editors... and then demand the copyrights of the research, while charging universities ridiculously high fees. Those publishers have also gone to great lengths to try to block the US government from trying to make federally funded research available to the public at no cost after a limited amount of time. And, of course, the journals often rely on secrecy to get the most money -- including requiring universities to sign non-disclosure agreements (NDAs) that forbid them from revealing how much they're paying for a journal.

It's nice to see some universities really starting to push back, and it's even nicer when it's a university that I attended and from which I received two degrees. My sister informs me that Cornell University has decided to take a stand and is refusing to sign any NDAs from various journals, and will make the prices they're being charged for such journals public. As the University made clear in a statement about this policy, it feels these agreements go against the basic nature of openness and fairness:

It has become apparent to the library community that the anticompetitive conduct engaged in by some publishing firms is in part a result of the inclusion of nondisclosure agreements in contracts. As Robert Darnton recently noted, by "keeping the terms secret, ... one library cannot negotiate for cheaper rates by citing an advantage obtained by another library." For this reason, the International Coalition of Library Consortia's "Statement of Current Perspective and Preferred Practices for the Selection and Purchase of Electronic Information" states that "Non-disclosure language should not be required for any licensing agreement, particularly language that would preclude library consortia from sharing pricing and other significant terms and conditions with other consortia." The more that libraries are able to communicate with one another about vendor offers, the better they are able to weigh the costs and benefits of any individual offer. An open market will result in better licensing terms.

Additionally, nondisclosure agreements conflict with the needs of CUL librarians and staff to work openly, collaboratively, and transparently. This conflict increases the likelihood that the terms of a nondisclosure agreement would be inadvertently violated, posing a threat to the university

The next step is focusing more and more on truly open journals and increasing their acceptance in academia.

Filed Under: journals, knowledge, learning, nda, openness, prices
Companies: cornell

The Artificially High Price Of Academic Journals And How It Impacts Everyone

from the sad-to-see dept

It's been a few years since we first discussed the ridiculous racket known as academic publishing. Unlike pretty much any other publication, all of the writing for these publications is done for free. Hell, in some subjects and for some journals, you actually have to pay to submit your papers. The "peer review" is all done for free and often any editing is done for free by an academic to build his or her reputation and CV. So, basically, you have just a tiny fraction of the costs of most any other publication, and yet, the mega-publishers behind these journals charge ridiculous amounts for subscriptions and even for single articles. Even worse, a significant percentage of academic research is still heavily funded by the US government (our taxpayer dollars), yet much of it is locked up behind these incredibly high prices. In many cases, the journals forbid the researcher from releasing the paper elsewhere (though many academics, thankfully, ignore this and offer up PDF downloads). NIH now requires research it funded to be publicly published a year after its published in a proprietary journal, and there are efforts to expand that to other government funding as well -- but the publishers have lobbied very hard against this, and even wish to repeal the NIH rule.

An article over at the Atlantic delves into this issue, going through the ridiculous economics showing how much lower the costs are for journals -- especially in this digital age -- and pointing out that this impacts everyone, rather than just doctors and scientists. The rest of the world shouldn't be cut off from research like this -- especially when it's federally funded. As John Bennett points out in response to that article, this is another example of intellectual monopolies making things ridiculously more expensive than the market should allow. As Thomas Macauley famously said a century and a half ago:

"the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad."

Filed Under: copyright, journals, knowledge, prices, research