Massachusetts Voters Overwhelmingly Support Expanded 'Right To Repair' Law

from the baby-steps-toward-basic-rights dept

Back in 2015, frustration at John Deere's draconian tractor DRM culminated in a grassroots tech movement dubbed "right to repair." The company's crackdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM (and the company's EULA) prohibited the lion's share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.

Of course the problem isn't just restricted to John Deere. Apple, Microsoft, Sony, and countless other tech giants eager to monopolize repair have made a habit of suing and bullying independent repair shops and demonizing consumers who simply want to reduce waste and repair devices they own. This, in turn, has resulted in a growing push for right to repair legislation in countless states.

The movement scored another big win this week on the news that 74.8% of Massachusetts voters (so far) just approved an expansion to an existing Massachusetts law, resulting in one of the most comprehensive right to repair laws in the nation. The original law was the first in the nation to be passed in 2013. The update dramatically improves the law, requiring that as of 2022, all new telematics-equipped vehicles be accessible via a standardized, transparent platform that allows owners and third-party repair shops to access vehicle data via a mobile device.

More simply, that means users can take their vehicle to any repair shop and have easy, transparent access to vehicle data, without running into obnoxious restrictions or having to visit a more expensive dealership mechanic using proprietary tools. The auto industry, as you might expect, tried really hard to scuttle the law, at one point falsely arguing it would "aid sexual predators" (seriously). Apple, Microsoft and others eager to boost revenues via repair monopolies have also, routinely, tried to falsely portray basic repair rights as somehow nefarious and dangerous.

Needless to say, right to repair advocates like iFixit CEO Kyle Wiens were very happy with the law's passage:

"Kyle Wiens, iFixit CEO, is thrilled. “Modern cars can send maintenance information directly to the manufacturers, cutting out local mechanics. Question 1 makes sure that consumers can continue to fix their own vehicles, or get them fixed at the shop of their choice.”

That means that independent repair shops will have a level playing field with car makers and dealerships, which have turned increasingly to locked-down wirelessly collected repair data, or telematics. Car owners, too, will be able to see their cars’ maintenance information through a smartphone app. And it opens the door for innovations, like wireless diagnostic apps for iOS and Android.

The more companies attempt to lock down their systems, bully independent repair shops, and otherwise erode consumer choice (all to detrimental environmental impact) the greater this movement grows. And companies and industries out there trying to frame basic consumer tech rights as somehow dangerous and nefarious clearly haven't quite gotten the message yet.

Filed Under: massachusetts, ownership, property rights, right to repair

Amazon Sued For Saying You've 'Bought' Movies That It Can Take Away From You

from the this-could-be-interesting dept

For well over a decade we've talked about the many problems that arise when copyright is compared to "property" -- and people try to simply move over concepts from physical, tangible property into the world of digital. A key aspect of this: when you "purchase" something digital online, is it really a "purchase" or is it a "license" (especially a license that could be revoked)? If it was a true "purchase" then you should own it and the seller shouldn't be able to take it back. But in practice, over and over and over again, we've seen stories of people having things they supposedly "bought" disappear. The situation is so crazy that we've referred to it as Schrödinger's Download, in that many copyright holders and retailers would like the very same thing to be a "sale" some of the time, and a "license" some of the time (the "times" for each tend to be when it hurts the consumers the most). This has, at times, seeped into physical goods, where they've tried to add "license agreements" to physical products. Or, worse, when some copyright folks claimed that buying a DVD means you don't actually own what you bought, but rather are merely "purchasing access" to the content, and that could be revoked.

Anyway, I'm amazed that we don't see more lawsuits about this kind of thing -- but one was recently filed in California. Someone named Amanda Caudel is suing Amazon for saying that you've "purchased" a video download, which Amazon might disappear from your library whenever it wants. As the lawsuit makes clear, Amazon directly says that you are buying the movie (as opposed to renting it). From the lawsuit filing itself:

And, they point out, in your account there's a listing of "Your Video Purchases & Rentals." But, the lawsuit claims, what you purchase doesn't seem to behave like a real purchase:

Reasonable consumers will expect that the use of a “Buy” button and the representation that their Video Content is a “Purchase” means that the consumer has paid for full access to the Video Content and, like any bought product, that access cannot be revoked.

Unfortunately for consumers who chose the “Buy” option, this is deceptive and untrue. Rather, the ugly truth is that Defendant secretly reserves the right to terminate the consumers’ access and use of the Video Content at any time, and has done so on numerous occasions, leaving the consumer without the ability to enjoy their already-bought Video Content.

Defendant’s representations are misleading because they give the impression that the Video Content is purchased – i.e. the person owns it - when in fact that is not true because Defendant or others may revoke access to the Video Content at any time and for any reason.

In so representing the “Purchase” of Video Content as true ownership of the content, Defendant took advantage of the (1) cognitive shortcuts made at the point-of-sale, e.g. Rent v. Buy and (2) price of the Video Content, which is akin to an outright purchase versus a rental.

Though some consumers may get lucky and never lose access to any of their paid-for media, others may one day find that their Video Content is now completely inaccessible. Regardless, all consumers have overpaid for the Video Content because they are not in fact owners of the Video Content, despite have paid extra money to “Buy” the product.

The plaintiff (or rather, her lawyers) are trying to make this a class action lawsuit, and are arguing that (among other things) this is false advertising. I am, not surprisingly, sympathetic to the plaintiff -- and remain disappointed at how copyright and similar restrictions are being used to chip away at ownership and actual property rights. That said... I'm not that optimistic the case will get very far. In the past, companies have been able to wiggle out of similar claims, and I'm pretty sure that Amazon tries to push disputes like this to binding arbitration, meaning that the lawsuit may be dead on arrival.

Still, it's yet another reminder of how copyright is chipping away at real property.

Filed Under: amanda caudel, buy, class action, copyright, digital goods, end of ownership, false advertising, ownership, property, property rights, purchase, rent
Companies: amazon

OK, Landlord: If Copyright Supporters Are Going To Insist Copyright Is Property, Why Are They So Mad About Being Called Landlords?

from the copyright-is-funny dept

After writing this post, we realized that the phrase would make a great t-shirt! So now you can get yourself some OK, Landlord gear from the Techdirt store on Threadless »

For a long time now we've explained why comparing copyrights to property is fraught with problems. So much of the reason that we engage in property rights is to enable a more efficient allocation of scarce goods. When you have something that is not-scarce -- or as the cool economist kids like to say "non-rivalrous and non-excludable" -- treating them in the same manner as if they were scarce creates all sorts of weird problems, many of which we've spent two decades detailing on this site. Indeed, for every argument made that copyright is property, you could make a compelling case that it's actually the opposite of property in that it frequently takes away the rights and ability of individuals to do what they want with products they rightfully own.

Five years ago, I noted that one of the big problems around the concept of "intellectual property" was the failure of people to separate the content, from the exclusive rights. That is, it's fair to think of the copyright as a form of property -- as the "right of exclusion" that it creates is more property-like -- but that it must be seen as separate from the underlying content. The "copyright" is not the content. And so much of the discussion around copyrights conflates the right and the underlying content and that creates all sorts of problems.

Meanwhile, law professor Brian Frye has spent the last month or so making a really important point regarding the never-ending "is copyright property" debate -- saying that if copyright is property, then copyright holders should be seen and treated as landlords. This whole approach can be summed up in the slightly snarky and trollish phrase: "OK, Landlord" used to respond to all sorts of nonsensical takes in support of more egregious copyright policies:

Like everyone, the copyright cops want to have their cake and eat it too. They claim that copyright is a kind of property, so the law should protect it just like any other kind of property. But they also claim that authors are morally entitled to copyright ownership because of their special contribution to society. I find both claims uncompelling, but in any case, they can’t have it both ways. If copyright is a property right, they have to own it and can’t claim the moral high ground.

What's been most telling about this useful analogy is just how angry it seems to make copyright holders and copyright-system supporters. They react very negatively to the suggestion that they are "landlords" and any money they make from copyright licensing is a form of "rent." But if you're going to claim that your copyright is profit, then, well, the landlord moniker fits.

But the copyright cops persist, insisting that copyright is property, so copyright owners are entitled to the entire value of the works they create because that’s what property means. Accordingly, copying a work of authorship without permission is theft, even though it only increases the number of copies, because the copyright owner didn’t profit. And even consuming a work of authorship without permission is wrong because copyright owners are entitled to profit from every use of the work they own.

The circularity of these claims should be obvious: copyright is property because copyright owners receive exclusive rights, and copyright owners receive exclusive rights because copyright is property. But let’s run with it. Okay, copyright is property and copyright owners are property owners. Why are copyright owners entitled to profit from the use of their property?

Because they’re landlords. Copyright owners want to own the property metaphor? Then, let ‘em own it. If copyright is property, then they are landlords and copyright profits are rent. Just like landlords, copyright owners simply make a capital investment in creating or acquiring a property, then sit back and wait for the profits to roll in.

As Frye notes, the whole idea that copyright holders are landlords (even as they claim that they are holding property that you need to pay them to use), shows the sort of emotional trickery that copyright holders use in also claiming some sort of moral right to their works as "creators." They're picking and choosing which arguments to use when -- and, have long tried to imbue some sort of magical mystical status on holding the copyright to creativity (which is often quite different than creating itself).

Of course, the real issue at play is that many of the most vocal copyright system supporters want to believe that they're "artists" who are fighting the system and speaking for the oppressed... and being a "landlord" who is renting out their property goes against that self-image. But as Frye notes, they can't really have it both ways. If they want to declare that they have property rights, they should be perfectly find with recognizing that they are the current landlords for that "property."

Want to irritate the next copyright holder you meet? Then get yourself an OK, Landlord t-shirt (or hoodie, or button, or notebook, or...) from the Techdirt store on Threadless »

Filed Under: brian frye, copyright, intellectual property, monopoly rents, ok landlord, property rights, rents

You Don't Own What You Buy Episode 9,000: Philips' Light Bulbs Lose Functionality

from the I'm-sorry-I-can't-do-that,-Dave dept

One of the common themes here at Techdirt over the last decade is how in the digital and internet-connected era, the very meaning of "ownership" and "property" has changed -- often for the worse. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv.

The latest example of this phenomenon comes courtesy of Philips, who this week announced it would be discontinuing its support of the first generation of its Hue Bridge on April 29. The Bridge is the heart of Philips' internet-connected lighting system, helping you manage all of the fancy new "smart" light bulbs you've installed around the house. And while the decision won't "brick" the hardware as we've seen from other companies, it will erode overall functionality of the platform, preventing them from connecting to the internet (the entire point):

"Philips won’t brick the original Hue Bridges, but it will stop updating their software. That means the Bridges, and the lights they’re connected to, will no longer be able to use any of Philips’ online services, which is, of course, one of the whole purposes of buying the lights in the first place.

When users began asking why this was necessary, Philips flatly indicated that the company wanted to focus on supporting newer models of the same platform:

The company also insisted this new version of the bridge would be "future proof":

Which of course isn't true. In a few years the company will move on from that product as well, leaving many users with "smart" hardware that slowly bleeds functionality until it's a shadow of its original marketing promises. Worse, as these products fall out of support, they often stop receiving essential security updates, putting users, and the internet in general, at risk.

Filed Under: end of life, hue, hue bridge, iot, ownership, property rights, smart homes, smart lightbulbs
Companies: philips

In New 5Pointz Decision, Second Circuit Concludes That VARA Trumps The Constitution

from the immoral-rights dept

A few weeks ago there was news that a developer in New York City was being forced to dismantle twenty already-built floors in the building he built too high. If only he had thought to let some graffiti artists paint the walls of these excess floors, because then he could never take them down…

I say that, of course, in response to other recent news from New York: the Second Circuit has upheld the awful decision by EDNY to sanction a building owner millions of dollars for daring to paint the walls of his own building. And, in doing so, the Second Circuit has illuminated, in stark relief, what an unconstitutional disaster the Visual Artists Rights Act of 1990 (VARA) is.

But before explaining why, first here's some background. This decision, in Castillo v. GM Realty L.P., is the latest in the litigation over "5Pointz." In brief, a developer owned a building in Brooklyn that he wasn't doing anything with, so he let some graffiti artists paint its walls. Eventually he decided that he wanted to do something else with his building, and in response the graffiti artists sued him under VARA, because his plans would cause those paintings that hadn't already been destroyed by the artists [see p. 4] to now be destroyed by him. The district court refused to enjoin the building owner, however, so he went ahead and painted over them. Upon learning of the painting over, the district court then immediately had non-enjoiner's remorse and got so angry at the building owner for doing what it had let him do that it threw the book at him. In fact, it was $6.7 million dollars worth of book it threw in punitive statutory damages, because how dare that building owner paint the building he owned after the court said he could.

The appeals court decision doubles-down on all the problems with the original district court decision we flagged before, including how catastrophic it is for the future availability of public art to subject those who allow it on their property to such expensive consequences. It makes true the saying "no good deed goes unpunished" and will ensure that few will ever be inclined to offer such favors ever again.

We also highlighted the manifest unfairness of punishing the building owner for doing something that the court had cleared the way for. This unfairness itself presents a constitutional infirmity, particularly in light of the enormous statutory damages award granted, and then upheld, to punish the building owner.

Ultimately, the district court concluded that it could not reliably fix the market value of the destroyed paintings and, for that reason, declined to award actual damages. […] Nonetheless, the court did award statutory damages. It determined that statutory damages would serve to sanction Wolkoff’s conduct and to vindicate the policies behind VARA. [p. 8-9]

Statutory damages are already constitutionally suspect, especially when they are so severely inflated above any actual measure of harm, as was the case here, and especially when they appear to be punitive in nature, as was also the case here, because they function as quasi-criminal sanction without all the due process protections a finding of criminal liability is supposed to require.

But that's not the only constitutional problem with VARA that the decision highlighted. The decision made clear that it also fails on equal protection and First Amendment grounds.

The major issue that the appeals court considered was whether the district court was right in upholding the VARA claim. The crux of that analysis hinged on whether the destroyed paintings qualified as a work of "recognized stature." If they did, then they were protected from destruction by VARA, whereas if they did not qualify, then they would get no extra protection. [p. 13]

But think about the implications of the law. It means that the right to special protection for one's expression is only available for some expression, and whether it gets that protection pivots on the content of that expression. Laws are not supposed to be able to favor or disfavor expression. Yet, as this decision carefully – if perhaps inadvertently – explains, that's exactly what VARA does.

Whether a work is of recognized stature, and thus entitled to additional protection, hinges on its "high quality, status, or caliber." [p.14]. Contrast this special protection with regular copyright protection, which applies to any original work of authorship of any statutorily-enumerated type (literary work, musical work, etc.) fixed in any tangible medium, regardless of that particular work's quality. In other words, bad paintings are just as eligible for basic copyright protection as good paintings. But in the case of VARA, the moral rights provision inserted into the copyright statute, it is only the good paintings that get this extra protection, because the bad ones will never be able to achieve that stature. ("The most important component of stature will generally be artistic quality." [p. 14])

Of course, whether a work is of good quality or not is a matter of opinion. So who gets to decide? The court recognized that the "personal judgment of the court shouldn't be the determinative factor." [p. 14]. Instead it deferred to "the artistic community, comprising art historians, art critics, museum curators, gallerists, prominent artists, and other experts." [p. 14].

But ratifying the subjective opinion of others as the basis upon which to dole out special legal protections is no better than the court making the determination on its own initiative. First, the decision of what opinions to credit is at best arbitrary, as was the case here, where the court deferred to an opinion of a presumed expert who had not even seen the works:

Nor do we see merit in Wolkoff’s criticism of the court’s decision to credit the artists’ experts. As is almost always the case where competing expert testimony is adduced, the trier of fact accepts one side’s experts over the other’s. Judge Block did so here and gave sound reasons for his choice. Renee Vara, the artists’ expert, testified to the high artistic merit of the 5Pointz art but also testified that she had not seen the works before their destruction and had assessed them on the basis of images. We see nothing wrong and certainly nothing clearly erroneous with this approach, one well within a district court’s broad discretion to accept or reject evidence. [p. 22]

But even to the extent that the opinion the court adopts reflects a true consensus, it still means that popular expression gets more statutory protection than less popular expression, which is not something the First Amendment permits.

Worse, it means that certain people end up with more rights than others. As the court expressly noted, "[A] 'poor' work by an otherwise highly regarded artist nonetheless merits protection from destruction under VARA." [p. 14] In other words, some artists of poor works will get this bonus protection, yet some will be denied it, which puts VARA in conflict with the equal protection clause, which forbids this sort of legal favoritism.

The facts of this case illustrate the problem. The aerosol paintings at 5Pointz were "curated" by Jonathan Cohen. Cohen chose which artists could paint, what they could paint, where they could paint, and how long the paintings could remain. Yet despite his outsized role in the creation of the paintings in question – or, indeed, because of this role ("When the curator is distinguished, his selection of the work is especially probative." [p. 25]) – the court deferred to him as someone whose opinion on the worth of a work could be dispositive in determining whether it deserved these extra legal protections.

Next, Appellants object to the district court’s reliance on Jonathan Cohen’s testimony about his curation of the artwork. The district court reasoned that Cohen’s selection process, which involved review of a portfolio of an artist’s work and a plan for his or her 5Pointz project, screened for works of stature. Appellants, however, contend that this determination was irrelevant because Cohen made his evaluation before the artists painted their 5Pointz works. Nonetheless, the district court cogently reasoned that a respected aerosol artist’s determination that another aerosol artist’s work is worthy of display is appropriate evidence of stature. An artist whose merit has been recognized by another prominent artist, museum curator, or art critic is more likely to create work of recognized stature than an artist who has not been screened. This inference is even stronger where, as here, Cohen reviewed a plan for the subject work before allowing it to be painted. Accepting and crediting such testimony easily falls within a district court’s trial management responsibilities and in this instance involved no abuse of discretion or clear error. [p. 23-24]

There is no constitutional problem with the fact that Cohen played kingmaker with respect to what artists he allowed to exhibit at 5Pointz and which works could attain any sort of visibility. As an individual he is entitled to make these content-based decisions. What is not okay is for the courts to allow his personal opinion to acquire the imprimatur of the state to create extra rights for his favorites. As the Second Circuit set forth, this power appears to be what VARA allows. But it's not what the Constitution permits.

Filed Under: 2nd circuit, 5pointz, art installations, artwork, graffiti, moral rights, property rights, statutory damages, vara

The Differences Between Copyright And Possession: Gilda Radner Interview Copyright Lawsuit Dismissed For Lack Of Registration

from the well-this-is-a-fun-one dept

Over the years, we've written about a few legal disputes regarding the question of who (if anyone) holds the copyright on an interview. That question was potentially at issue in a dispute over some audio recordings of comedian Gilda Radner being interviewed by journalist Hillary Johnson. Johnson was apparently hired by publisher Simon & Schuster in 1987 to interview Radner (who was already dealing with the ovarian cancer that would eventually lead to her death), in order to help Radner write an autobiography. Radner's brother, Michael, kept the tapes of the interview, and they were "found" recently, and used in a recent documentary about Radner. According to the film's director, Lisa D’Apolito, Michael Radner had handed over boxes of Radner's stuff to her to use for the film.

The filmmakers, after finding the tapes of Johnson interviewing Radner, had reached out to Johnson about possibly interviewing her for the documentary, but when Johnson demanded money to be interviewed, they moved on. Johnson then argued that she holds at least some copyright interest in the interviews, and sued. There are, of course, lots of questions about who holds a copyright in an interview -- and some of us believe that such interviews don't deserve copyright protection at all, as it's not the copyright that is creating the incentive here. But, this case got tossed out on a different kind of technicality: Johnson has no registration for the copyright, even if she actually has a copyright interest in the interview, and you can't sue over a copyright if you haven't registered it.

And, the case is even a bit more interesting than that, because Johnson claims the problem is she can't register the copyright because she doesn't have the tapes and Michael Radner (who is also a defendant) won't give her the tapes so she can run down to the Copyright Office and register them. This makes it all quite simple for the judge:

Plaintiff concedes she has not registered a copyright in any audiotape of a recorded interview. Indeed, both the amended complaint and plaintiff’s opposition to the instant motion acknowledge that plaintiff’s “inability to register her [alleged] copyrights deprives her of any right to sue for infringement.”...

Accordingly, plaintiff’s copyright infringement claim is dismissed.

Indeed, the case is so open-and-shut that the judge has said that Johnson has to pay the legal fees of the defendants she sued.

Here, the amended complaint contains one substantive claim—the copyright infringement claim against the moving defendants. Yet in the very complaint through which plaintiff asserts that claim, plaintiff acknowledges she currently has no right to do so.... Plaintiff’s opposition to the instant motion likewise recognizes that plaintiff’s “inability to register her copyrights deprives her of any right to sue for infringement.”...

The Court finds objectively unreasonable plaintiff’s attempt to prosecute a claim that her own pleading acknowledges she has no right to pursue at this time. Indeed, in the Court’s view, the amended complaint’s concession that plaintiff’s copyright infringement claim is nonviable renders that claim frivolous. Although the Court does not discern any improper motive behind plaintiff’s claims, nor is the Court eager to award attorney’s fees, the Court nonetheless concludes that awarding the moving defendants costs and a reasonable attorney’s fee is warranted under the circumstances of this case.

I've seen some of the copyright system's regular defenders insisting that this case is a travesty of justice, and a reason why the US should get rid of the requirement for works to be registered before you can sue. This is... crazy. Indeed, if anything, we should be moving back in the other direction, and require registration to get a copyright in the first place. The issue here is one of pure greed. This interview does not exist because of a copyright-driven incentive. Johnson was hired to do a job and she did it. It seems clear she then didn't keep the tapes or think there was any commercial value in the tapes. She had nothing to do with their rediscovery or the new movie. She just wanted to get paid for something she apparently was already paid to do decades ago.

But, once again, this highlights the difference between possessing the actual "content" (or the medium in which content is "fixed") and holding a copyright on that content. It's one of those issues that trips people up -- but also highlights yet again why copyright is not property in the traditional sense. This was a good and easy ruling, and the way to fix such "weird" situations is to go back to a system of formalities, where registration is necessary to even get the copyright in the first place. Then you don't have greedy people showing up years later, demanding a cut of something when they never had any copyright interest previously.

Filed Under: copyright, gilda radner, hillary johnson, interview, lisa d'apolito, michael radner, possession, property rights, registration

Intellectual Property Is Neither Intellectual, Nor Property: Discuss

from the have-at-it dept

Well over a decade ago I tried to explain why things like copyright and patents (and especially trademarks) should not be considered "intellectual property," and that focusing on the use of "property" helped to distort nearly every policy debate about those tools. This was especially true among the crowd who consider themselves "free market supporters" or, worse, "against government regulations and handouts." It seemed odd to me that many people in that camp strongly supported both copyright and patents, mainly by pretending they were regular property, while ignoring that both copyrights and patents are literally centralized government regulations that involve handing a monopoly right to a private entity to prevent competition. But supporters seemed to be able to whitewash that, so long as they could insist that these things were "property", contorting themselves into believing that these government handouts were somehow a part of the free market.

For years I got strong pushback from people when I argued that copyright and patents were not property -- and a few years ago, I modified my position only slightly. I pointed out that the copyright or the patent itself can be considered property (that is, the "right" that is given out by the government), but not the underlying expression or invention that those rights protect. Indeed, these days I think so much of the confusion about the question of "property", when it comes to copyright and patents, is that so many people (myself included at times) conflate the rights given by the government with the underlying expression or invention that those rights protect. In other words, the government-granted monopoly over a sound recording does have many aspects that are property-like. But the underlying song does not have many property-like aspects.

Either way, it's great to see the Niskanen Center, a DC-think tank that continually does good work on a variety of subjects, has decided to try to re-climb that mountain to explain to "free market" and "property rights" supporters why "intellectual property is not property." If you've been reading Techdirt for any length of time, most of the arguments won't surprise you. However, it is a very thoughtful and detailed paper that is worth reading.

Imagine two farms sitting side by side in an otherwise virgin wilderness, each of them homesteaded by a husband-and-wife couple (let’s call them Fred and Wilma and Barney and Betty) — two parcels of newly created private property appropriated from the commons by productive labor. One day, as Fred and Wilma are both working outside, they both notice Betty walking through the orchard of apple trees that Barney and she had planted some years back and which are now just ready to bear fruit for the first time. As Betty picks some of the first ripening apples to use in baking a pie, she sings an enchantingly lovely ballad that she and Barney had made up together back when they were courting. For the rest of the day Wilma can’t stop thinking about that beautiful song, while Fred can’t stop thinking about those trees full of delicious apples. That night Wilma sings the song to her baby daughter as a lullaby. Fred, meanwhile, sneaks over onto Barney and Betty’s property, picks a sack full of apples, tiptoes back to his property and proceeds to eat the lot of them, feeding the cores to his pigs before heading back inside.

Do you think that Fred and Wilma both did something wrong? Are they both thieves? Did both of them violate Barney and Betty’s rights? After all, Fred stole their apples, and Wilma “stole” their song — that is, she sang it to someone else without asking for permission. If you’re having trouble seeing Fred and Wilma’s actions as morally equivalent, it’s because of a fundamental difference between the two types of “property” they took from Barney and Betty.

That fundamental difference is that Barney and Betty’s song, like all ideal objects, is a nonrivalrous good. In other words, one person’s use or consumption of it in no way diminishes the ability of others to use or consume it. As expressed with characteristic eloquence by Thomas Jefferson (who perhaps not coincidentally viewed patents and copyrights with skepticism), the “peculiar character [of an idea] 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.”

By contrast, physical objects like apples are rivalrous: Once Fred and his pigs had finished devouring the ones Fred stole, they were gone and nobody else could consume them. Even when physical objects aren’t physically consumed by their owners — think paintings or plots of land — there is still unavoidable rivalry in using, enjoying, and disposing of them. The owner exercises that control over the owned object, and therefore nobody else does.

This is why it’s clear that Fred inflicted harm on his neighbors, since he took the fruit that they grew and now they don’t have it anymore. But Barney and Betty still have their song; the fact that Wilma sang it did nothing to prevent them from singing it anytime they want to. So, if Wilma did harm to Barney and Betty, what exactly is it?

The whole paper is really worth reading, and digs in on how and why people create, the nature of externalities in the creative process, and what actual data shows on the incentives of copyright and patents in driving innovation and creativity. The paper also digs deep on how excessive monopoly rights vastly hinder follow-on creativity and innovation (which is how most innovation and creativity come about in the first place).

In the case of copyright, excessive internalization is an impediment to the process of borrowing that is essential for the growth of creative works. While each artist may contribute new ideas to the cultural landscape, their contributions are based on the previous body of work. We all begin as consumers of ideas — and then some of us go on to create new ones. Take the case of Star Wars. The Jedi, Darth Vader, and the Death Star were all new in 1977, but George Lucas relied heavily on older ideas to make them possible. It is common knowledge that Lucas borrowed from Joseph Campbell’s Hero With a Thousand Faces when crafting the hero’s journey of Luke Skywalker. But the borrowing didn’t stop there. The famous opening crawl is virtually identical to those at the beginning of episodes of Flash Gordon Conquers the Universe. Telling the story from the perspective of two lowly characters, the droids R2-D2 and C-3P0, was inspired by Kurosawa’s The Hidden Fortress — something Lucas freely admits.

But while Lucas’s borrowing was permissible under copyright law, other borrowing is not, as current law gives rights holders control over broadly defined “derivative works.” A number of Star Wars fan films have been shuttered or severely limited in their scope (mostly by prohibiting commercialization) due to threats of litigation by Disney. The genre of fan fiction is a legal gray area, with many tests to determine whether it constitutes fair use, including commercialization and how “transformative” the work is. While the vast majority of these works will never amount to much, their existence is more tolerated than established as a clear-cut case of fair use. A more aggressively enforced copyright regime would almost certainly be the end of most fan fiction.

Thankfully, the paper also takes on the "fruits of our labor" view of both copyright and patents and why that doesn't make much sense either.

The idea that people should be able to enjoy the fruits of their labor has clear intuitive appeal, but its invocation as a justification for stopping other people from making use of your ideas without your permission suffers a fatal difficulty: The argument proves far too much. Indeed, the problem goes beyond the widely understood “negative space” of intellectual creations that stand outside of patent and copyright protection: scientific discoveries, fashion, comedy, etc. Given that every new business venture starts with an idea, why shouldn’t every first entrant in a new industry be able to claim a monopoly? Or, for that matter, why not every first entry in a geographic market? If someone has the bright idea that their hometown needs a Thai restaurant and succeeds in making a go of it, why shouldn’t she be able to prevent competitors from coming in to poach her good idea — at least for a couple of decades? On the other hand, given that every new idea is in some way adapted from earlier ideas, why shouldn’t those first entrants in new industries and new markets be seen as “thieves” and “pirates” who are infringing on earlier ideas? Once you really start working through the implications, the whole argument collapses in a hopeless muddle.

The problem is this: The claim that enjoying the fruits of one’s intellectual labor entitles you to stop competitors has no inherent limiting principle, and thus the claim can be extended headlong into absurdity — as indeed it frequently has been. Of course, one can impose limits on the claim, but those limits have to be based on other principles — in particular, some sense of relative costs and benefits. But now we’re doing policy analysis and the case-specific comparison of costs and benefits, at which point the grandiose-sounding claim that patent and copyright law combat injustice shrivels and fades.

The paper then suggests some reforms for both copyright and patent law that seem quite reasonable. On copyright, they suggest reducing terms, requiring registration, limiting infringement to commercial exploitation, expanding fair use, narrowing derivative works, and ending anti-circumvention (a la DMCA 1201). These are all good suggestions, though the "commercial exploitation" one is one that sounds good but is often hard to implement, because what is and what is not "commercial exploitation" can be somewhat gray and fuzzy at times. But the intent here is sound.

On patents, the paper suggestions are to eliminate both software and business method patents, greatly tighten eligibility requirements, and no infringement in cases of independent invention. To me, as I've argued, the independent invention point is the most important. Indeed, I've argued that we should go further than just saying that independent invention is a defense against infringement. Instead, we should note that independent invention is a sign of obviousness, meaning not only that the second invention isn't infringing, but that the initial patent itself should likely be invalid, as patents are only supposed to be granted if the idea is not obvious to those skilled in the art.

All in all, this is a great and thorough paper, especially for those who really want to insist that copyrights and patents should be treated like traditional property, and position themselves as supporters of "free markets." I fully expect -- as I've experienced in the past -- that those people will not engage seriously with these arguments and will rage and scream about them, but it's still important to make these points.

Filed Under: copyrights, intellectual property, non-rivalrous, patents, property, property rights, rivalrous, trademarks

You Don't Own What You've Bought: Microsoft's Books 'Will Stop Working'

from the the-end-of-ownership dept

The latest in our forever ongoing series, recognizing in the digital age how you often no longer own what you've bought, thanks to DRM and copyright: this week, people with Microsoft ebooks will discover they're dead.

Microsoft made the announcement in April that it would shutter the Microsoft Store’s books section for good. The company had made its foray into ebooks in 2017, as part of a Windows 10 Creators Update that sought to round out the software available to its Surface line. Relegated to Microsoft’s Edge browser, the digital bookstore never took off. As of April 2, it halted all ebook sales. And starting as soon as this week, it’s going to remove all purchased books from the libraries of those who bought them.

Other companies have pulled a similar trick in smaller doses. Amazon, overcome by a fit of irony in 2009, memorably vanished copies of George Orwell’s 1984 from Kindles. The year before that, Walmart shut down its own ill-fated MP3 store, at first suggesting customers burn their purchases onto CDs to salvage them before offering a download solution. But this is not a tactical strike. There is no backup plan. This is The Langoliers. And because of digital rights management—the mechanism by which platforms retain control over the digital goods they sell—you have no recourse. Microsoft will refund customers in full for what they paid, plus an extra $25 if they made annotations or markups. But that provides only the coldest comfort.

This tweet kind of sums up the insanity here:

As Cory Doctorow points out in discussing all of this, he has been predicting this kind of nonsense for years now -- including in a 2004 speech delivered at Microsoft.

This puts the difference between DRM-locked media and unencumbered media into sharp contrast. I have bought a lot of MP3s over the years, thousands of them, and many of the retailers I purchased from are long gone, but I still have the MP3s. Likewise, I have bought many books from long-defunct booksellers and even defunct publishers, but I still own those books.

When I was a bookseller, nothing I could do would result in your losing the book that I sold you. If I regretted selling you a book, I didn't get to break into your house and steal it, even if I left you a cash refund for the price you paid.

People sometimes treat me like my decision not to sell my books through Amazon's Audible is irrational (Audible will not let writers or publisher opt to sell their books without DRM), but if you think Amazon is immune to this kind of shenanigans, you are sadly mistaken. My books matter a lot to me. I just paid $8,000 to have a container full of books shipped from a storage locker in the UK to our home in LA so I can be closer to them. The idea that the books I buy can be relegated to some kind of fucking software license is the most grotesque and awful thing I can imagine: if the publishing industry deliberately set out to destroy any sense of intrinsic, civilization-supporting value in literary works, they could not have done a better job.

For everyone who likes to (laughably) claim that supporting copyright is about supporting property rights, this (and all those other) stories show the exact opposite is often true. Copyright is often used to destroy property rights and to destroy ownership.

Filed Under: copyright, drm, ebooks, ownership, property rights, you don't own what you bought
Companies: microsoft

Supreme Court Says Of Course The Patent Office Can Admit It Made A Mistake And Dump Bad Patents

from the phew dept

For the second time in two years, the Supreme Court has needed to weigh in and note that, of course, the US Patent Office can take another look at the crappy patents it already granted, recognize its mistake, and void the patents. A little less than two years ago, it looked at what standards could be used by the Patent Trial and Appeal Board (PTAB) using the Inter Partes Review (IPR) system created by the America Invents Act of 2010. The latest case was much more broad: challenging whether the IPR/PTAB process itself was Constitutional.

The basic idea behind the IPR process was an admission that the USPTO is historically bad at properly reviewing patents before granting them. It grants a lot of bad patents. The IPR process allows anyone to present evidence to the PTO that it made a mistake and granted a patent that should never have been granted. If the PTAB is convinced, it can invalidate the patent. Seems pretty straightforward. Except that the usual patent lovers (mainly patent trolls and big pharma) insisted that this was some sort of unconstitutional taking of property, without the review of a court. This is wrong for a whole bunch of reasons -- starting with the incorrect view of patents as traditional "property."

The Supreme Court ruled on the issue, in a case called Oil States Energy Services v. Greene's Energy Group, and basically said that of course the PTAB can invalidate patents this way. Justice Thomas wrote the majority opinion with a 7 - 2 split (Gorsuch and Roberts dissented). The key issue was whether or not invalidating patents is reserved only for the courts, and most of the Justices don't see any support for that. In short, the majority opinion says what the Patent Office gives, the Patent Office can take away...

This Court has recognized, and the parties do not dispute, that the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise. Inter partes review is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO’s authority to conduct that reconsideration. Thus, the PTO can do so without violating Article III.

The majority opinion points out that the Constitution doesn't require the Judicial branch to weigh in on the granting of patents, and thus it need not weigh in on the invalidating of those patents either.

Inter partes review is “a second look at an earlier administrative grant of a patent.” ... The Board considers the same statutory requirements that the PTO considered when granting the patent.... Those statutory requirements prevent the “issuance of patents whose effects are to remove existent knowledge from the public domain.” ... So, like the PTO’s initial review, the Board’s inter partes review protects “the public’s paramount interest in seeing that patent monopolies are kept within their legitimate scope,”... Thus, inter partes review involves the same interests as the determination to grant a patent in the first instance.

The court reasonably compares it to other administrative processes where the government can grant things, such as franchises, and later revoke or amend those franchises.

An important part of the ruling is that patents are not property in the traditional sense, and this isn't case of removing someone's property without the Judicial Branch. Specifically, the court says that patents are really more similar to a franchise right, than a traditional property right:

Patents convey only a specific form of property right—a public franchise.... And patents are “entitled to protection as any other property, consisting of a franchise.” Seymour, 11 Wall. at 533 (emphasis added). As a public franchise, a patent can confer only the rights that “the statute prescribes.” Gayler, supra, at 494; Wheaton v. Peters, 8 Pet. 591, 663–664 (1834) (noting that Congress has “the power to prescribe the conditions on which such right shall be enjoyed”). It is noteworthy that one of the precedents cited by Oil States acknowledges that the patentee’s rights are “derived altogether” from statutes, “are to be regulated and measured by these laws, and cannot go beyond them.”

And while Oil States points to some earlier rulings saying that only the courts can invalidate a patent, the Supreme Court correctly notes that the cases it points to were decided under the Patent Act of 1870 -- and under that Act, courts were necessary. But there is no Constitutional prohibition on Congress setting up different rules for the patent system, and since 2010 with the America Invents Act, Congress decided to allow for this administrative review.

Amusingly, the court also takes Oil States to school for a history lesson. The company had argued that historical principles have established that only a court could invalidate a patent, and points to cases decided in 18th century England. But, the Supreme Court, citing Mark Lemley, points out that Oil States not only gets its history wrong, but that the actual history shows that England had something quite similar to an Inter Partes Review process:

But this history does not establish that patent validity is a matter that, “from its nature,” must be decided by a court.... The aforementioned proceedings were between private parties. But there was another means of canceling a patent in 18th-century England, which more closely resembles inter partes review: a petition to the Privy Council to vacate a patent. See Lemley, supra, at 1681–1682; Hulme, Privy Council Law and Practice of Letters Patent for Invention From the Restoration to 1794, 33 L. Q. Rev. 63 (1917). The Privy Council was composed of the Crown’s advisers.... From the 17th through the 20th centuries, English patents had a standard revocation clause that permitted six or more Privy Counsellors to declare a patent void if they determined the invention was contrary to law, “prejudicial” or “inconvenient,” not new, or not invented by the patent owner. ... Individuals could petition the Council to revoke a patent, and the petition was referred to the Attorney General. The Attorney General examined the petition, considered affidavits from the petitioner and patent owner, and heard from counsel.... Depending on the Attorney General’s conclusion, the Council would either void the patent or dismiss the petition....

The Privy Council was a prominent feature of the English system. It had exclusive authority to revoke patents until 1753, and after that, it had concurrent jurisdiction with the courts.... The Privy Council continued to consider revocation claims and to revoke patents throughout the 18th century.

Just a note: if you're going to cite English legal history at the US Supreme Court to try to establish some sort of general and accepted rule, it's best if you don't skip out on the fact that the actual history supports the other side. Just saying.

The final argument from Oil States that the court rejects, is that the PTAB is a violation because it looks too much like an Article III court, without being an actual court. But the majority opinion basically says "so what?"

But this Court has never adopted a “looks like” test to determine if an adjudication has improperly occurred outside of an Article III court. The fact that an agency uses court-like procedures does not necessarily mean it is exercising the judicial power. See Freytag, 501 U. S., at 910 (opinion of Scalia, J.). This Court has rejected the notion that a tribunal exercises Article III judicial power simply because it is “called a court and its decisions called judgments.”

The dissent from Gorsuch (with Roberts signing on) is all over the place. They seem taken in by the myth of patent greatness, kicking off the dissent with the following:

After much hard work and no little investment you devise something you think truly novel. Then you endure the further cost and effort of applying for a patent, devoting maybe $30,000 and two years to that process alone. At the end of it all, the Patent Office agrees your invention is novel and issues a patent. The patent affords you exclusive rights to the fruits of your labor for two decades. But what happens if someone later emerges from the woodwork, arguing that it was all a mistake and your patent should be canceled? Can a political appointee and his administrative agents, instead of an independent judge, resolve the dispute? The Court says yes. Respectfully, I disagree.

But... that makes no sense. Congress, which has the power to set up the patent system to "promote the progress of the useful arts" has determined (reasonably) that since the Patent Office grants lots of bad patents, it can also review and invalidate its mistakes. That's not a "dispute that needs to be resolved." It's an administrative function that doesn't end once the patent is granted.

Gorsuch seems to think people will read the narrow ruling of the majority to more or less decimate the courts and move lots of disputes into administrative processes. That's silly. The majority opinion is quite clear that it is narrowly focused on the issue before it concerning Congress's authority to enable the Patent Office to invalidate patents. As for the history lesson mentioned above, Gorsuch claims it no longer applies because the English Privy Council stopped invalidating patents in the 18th Century. That's true, but meaningless. The whole reason English patent history is brought up in the first place was because Oil States tried to argue that it was the natural order of patents that only courts could remove them. What they really meant is that it was the natural order starting in the late 18th century... which is a lot less convincing if you're trying to argue a form of "we've always done it this way." The point is... we haven't.

This is a big and important win, protecting everyone from bad patents. The IPR process has been shown to be a tool that is at least somewhat effective in dumping bad patents. We should all strive for a situation in which the PTO doesn't grant bad patents in the first place, but given that it does, it should be able to acknowledge its mistakes and correct them.

Of course, that won't stop patent trolls and big pharma from flipping out. Even the site FiercePharma seems to be completely off its rocker in calling this ruling a "blow for pharma" and describing the IPR process as "hated." Except that's silly. IPR is only hated by those with junk patents. If pharma hates it, it's because they know their patents are junk.

As that article makes clear, though, the powerful Pharma lobby intends to pressure Congress to still kill the IPR process as quickly as possible:

In a statement, PhRMA spokesperson Nicole Longo said the "narrowly tailored decision" found only that IPRs are constitutional, not "efficient or fair." The arguments and a Tuesday ruling in another case—SAS Institute v. Iancu—mean it's "clear there are problems with the IPR process that need to be addressed," she added.

Amusingly, the article also notes that most of the big pharma companies have used the IPR process themselves to invalidate the patents of others, suggesting that maybe they don't actually "hate" it that much after all...

Filed Under: america invents act, bad patents, franchises, inter partes review, ipr, patent reform, patent trolls, property rights, supreme court, uspto
Companies: oil states