We've argued for a while that copyright is frequently used as a new form of mercantilism, the mostly discredited economic theory that basically said that the government should be heavily involved in "protecting" local industries with monopolies and tariffs. Adam Smith's seminal works, which more or less created the field of economics were really, in part, a critique of mercantilism, and how it could cause more economic harm than good. When you take a wider view of copyright law and policy (especially in international trade), it's not difficult to conclude that it's very similar to classic 17th century mercantilism.

So it's interesting to see Tulane professor Glynn Lunney publish a paper arguing exactly this: that copyright has become a mercantilist tool, and that's a problem.

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Rather than argue for broader copyright in terms of more or better original works, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Consumer copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. In this article, I review these arguments and show that they are empty. While the Internet and digital technology has made widespread consumer copying a reality, broader copyright can be justified only if this copying has interfered with the creation and dissemination of new original works. But it has not. Using a hand-coded data set examining the number of new artists and cover songs in the top fifty of the Billboard Hot 100 chart in the first week of each month for the years 1990-2010, I show that while music industry revenue has fallen sharply since Napster opened its virtual doors, output in the music industry, both in terms of quantity and quality, has increased just as sharply. Part of the explanation for this seemingly paradoxical result, is that the digital revolution, while it has made consumer copying trivially easily, has also reduced costs, risks, and barriers to entry in the music industry. Yet, this cannot be a complete explanation.

To account for the rest, I offer a theoretical model and a simple explanation for why the incentives for music creation have remained sufficient in the face of widespread consumer copying: Consumers don't just love music generally; they love their particular favorite artists and their specific favorite songs. While consumers would like to get music for free, they know that they have to support their favorite artists in order to get and to continue getting the music they want. As a result, self-interest tends to ensure that consumers do not free ride too much. While the resulting market is unlikely to be perfect, legislation from Congress is not likely to improve the situation. Just as product markets fail in predictable circumstances, so too do political markets. When, as in the debate over broader copyright, proposed legislation benefits a concentrated interest group, such as copyright owners, at the expense of a dispersed interest group, such as copyright consumers, Congress is systematically likely to get the answer of how much copyright is optimal wrong, and badly wrong at that. In short, we have far more to fear from government intervention in the markets for original works than we do from leaving these markets alone.

I met Lunney a few months ago, and saw him present some of this research at a conference, and he makes a really compelling case (I had a minor disagreement with him over some of his data, but the overall work is really, really solid). The full paper is totally worth reading. As I read through it, I kept thinking I wanted to quote basically everything, so instead I'll just repeat: go read the full paper. I will include this bit from near the end, however:

While I recognize the political difficulty, and perhaps futility, of proposing a constitutional amendment limiting Congress's power in this area, I think it is time, and past time, to put such options on the table. It has been over two hundred years since our Constitution was written, and we have a much better sense today for where representative democracy works and where it fails. Because copyright benefits a concentrated and well-organized interest group at the expense of a dispersed group, establishing an optimal copyright regime is simply not something Congress has done or will do well. We should therefore limit Congress's power to act on this issue. At the simplest, such a constitutional amendment might follow Jefferson's suggestion and substitute "for no more than fourteen years" for the phrase "for limited times" in Article I, section 8, clause 8. Taking it a step further, an amendment might specify or limit the nature of the "exclusive rights" that Congress may grant. I fully recognize that such an approach would enshrine a set of rights that, even if optimal today, may not prove optimal for all time. Such an approach would almost certainly impose a set of legal rights that will not fit perfectly the needs of the future, as technology and markets change. Nevertheless, I believe that such an approach remains preferable to our current approach. Any welfare losses that may result from constitutionalizing today's optimal set of rights and imposing those rights onto the future would be less than the welfare losses that will result, and have resulted, from leaving the issue to Congress. Given how overbroad copyright has become, even an amendment barring Congress (and the states as well) from granting exclusive rights to authors for their writings altogether would be better than where we find ourselves today.

Once again, go read the whole thing... and remember the key points he raises the next time you see copyright maximalists bring up how many "jobs are at stake." That's a bogus claim, as Lunney notes elsewhere in the paper:

for the copyright industries to receive more revenue, consumers must pay more for works of authorship. Broader copyright, after all, does not generate revenue from thin air. It has to come from somewhere. If consumers have to pay more for works of authorship, they will have less to spend on everything else. Thus, more revenue for the copyright industries necessarily means less revenue for other sectors of the economy. If more revenue for copyrighted works means more jobs for the copyright industries, presumably less revenue everywhere else means fewer jobs elsewhere in the economy

Copyright is about Congress picking winners and losers in a true mercantilist manner -- and Congress has proven especially bad at doing that well -- in part because they only seem to listen to the claims of the industry which benefits from such policies.

TorrentFreak broke an unsurprising, but amazing, story this week in uncovering that Stroz Friedberg, the supposedly "independent and impartial tech expert" that was brought on to assist the Center for Copyright Information (CCI) in making sure that the new "six strikes" program BitTorrent monitoring is accurate, used to lobby for the RIAA. Apparently this bit of news took folks at CCI completely by surprise, since the RIAA failed to mention that tidbit of info. Now, CCI is apparently scrambling to make things right -- either by finding someone new, or by "opening up" the review that Stroz Friedberg does for the public to review. Either way, it's pretty incredible that the RIAA thought that no one would notice that the "impartial and independent" expert just happened to be a biased party that lobbied directly for them in the past.

There are plenty of discussions about the problem of patent trolls, but if you think that's the only problem with the patent system, you haven't been paying attention. There have been a ton of major clashes going on between big companies, spending billions buying up patents, suing each other... and not putting that money into innovation or lower prices. So it's nice to see Cisco CEO John Chambers speak out against the patent system by calling out both the trolls and the big tech companies for abusing the system and hindering innovation. Yes, he sees the problem with trolls:

"It is a mess; There are patent trolls everywhere," said Chambers, noting that patent problems impose huge costs on every company.

But he didn't limit his comments to just trolls:

But Chambers was also critical of the trend by tech companies of suing one another over alleged patent violations. He didn't name names, but, speaking to the audience, he said for "his peers" in the room, "you shouldn't be suing your peers."

Patent litigation, he added, slows down innovation.

Given that he's criticizing basically everything, when asked what should be done, he's apparently come around to the conclusion that the system is completely broken:

"completely throw out everything, and start from the beginning."

In the same talk, he also passed on an easy chance to attack one of Cisco's biggest competitors, Huawei. You may remember that a Congressional investigation had warned that doing business with Huawei was dangerous, and hinted at possible industrial espionage by the company (which Huawei denies). In response, some had suggested that the report was really the US just trying to create protectionist policies favoring Cisco. Given that, it would be easy for Chambers to go with that easy story and knock Huawei while it's down. Instead, he suggested the whole story was overblown, telling a questioner "no" to a question about if the US should be suspicious of Chinese companies, and later noting that Cisco partners with a ton of Chinese companies, and "China should and will be an ally to the U.S. in my opinion, and you will see us interface with a number of Chinese companies."

In a few days, a lot of chocolate will be eaten by kids (and maybe their parents), and there will also be a lot of discounted candy and chocolate on sale in many grocery stores. Just so that we don't feel too bad about indulging on Halloween treats, here are a few studies that might ease our guilt for a while.

• The chocolate consumption of an entire country can be correlated with the chances of winning Nobel prizes. This study brought to you by the Correlation Is Not Causation Foundation. Seriously. [url]
• Chocolate can be made even healthier by replacing its fat content with fruit juice. By the addition of a Pickering emulsion of fruit juices and milk, a low-fat chocolate can maintain its chocolatey taste and texture -- which will just encourage chocoholics to eat even more chocolate than they should.... [url]
• If you're looking for an excuse to eat more chocolate, a study of 1,000 adults found a correlation that people who eat chocolate more frequently tend to be thinner. To really complete this study, the researchers would need to compare chocolate eaters with non-chocolate eaters -- and come up with a realistic chocolate placebo. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

You may remember that, a year ago, Pakistan announced they were banning encryption online. Not that any such ban would likely to be effective, but it seems to fit in with the claim that the government has told PTCL, the Pakistani telco, that within 90 days it must monitor basically all communications that go across the Pakistani border:

All emails, telephone calls and other communications with the rest of the world will begin to be monitored within 90 days at a cost of million of dollars, according to a deadline given by the government to operators including PTCL.

The government has assigned PTCL and other operators to install monitoring equipment by the end of this year for checking voice and email communications from abroad and the services of the country’s spy agency will be used basically to check and curb blasphemous and obscene websites on the Internet.

Yeah, sure, just to "curb blasphemous and obscene websites." I'm sure all that monitoring won't be abused otherwise at all... right? Somehow, despite that earlier ban, I'm guessing that encryption technologies just became a lot more popular in Pakistan.

Redbox has ended its "standoff" with Warner Brothers and, despite its earlier moves, has come out on the losing end of the deal. If you'll recall, earlier in the year Redbox decided to let its contract with Warner Brothers expire after the studio decided to withhold its new releases for 56 days -- up from the already ridiculous 28 days. Redbox looked at the obscene size of this window and said, thanks but no thanks, we'll just purchase your movies elsewhere.

This couldn't have made WB too happy, what with Redbox exercising the right of First Sale to bypass the studio's window and let itself in the front door. As for those looking to rent new releases while they were still new, Warner Brothers basically told them to shove off, and go look elsewhere for their entertainment. Having cut off a source of income and given more than a few potential customers a reason to check out alternate sources, the studio finally decided to renegotiate.

Here's how it all works out for Redbox (and by extension, the customers):

For titles with street dates between January 1, 2013 and December 31, 2014, the studio will grant Redbox the rights to offer Warner Bros. theatrical titles on Blu-ray Disc and DVD 28 days after their retail release dates.

Apparently, a stupid window is slightly less stupid when it's half the size it previously was. (But more stupidly, it's exactly where the window sat previously, before Warner decided not enough people were buying during the rental shutout). What Warner refuses to understand is that people want to rent movies when they logically should be available (i.e., day and date with the DVD release), rather than at some arbitrary point in the future. Warner is still willing to trade rentals for sales, even if it means giving up some rentals for file sharing. But the stupidity of the deal gets worse:

In addition, Redbox announced plans to join the Digital Entertainment Content Ecosystem (DECE) and has agreed to promote UltraViolet through a program of mutually agreed-upon promotions and marketing tactics designed to help retail customers discover UltraViolet.

On top of being forced to humor Warner's ignorant windowing, Redbox is now being made to play nice with the studio's too-little-too-late digital "offering." It's a bad deal all around, but the press release ignores all reality to paint a gloriously rose-tinted future for all involved.

The arrangement will improve the economics for both Warner Bros. and Redbox while ensuring consistent availability of Warner Bros. titles for the consumer.

Really? Judging from past experience, it seems more likely that Warner will continue to cripple the rental service by adding ridiculous agreements and stipulations while slowly killing off the everything anyone liked about it. There's nothing about this equation that "improves economics." Warner opens itself up to more piracy by setting up arbitrary windows and consumers looking for the latest Warner releases still have 28 days to kill before they become "consistently available."

Here's some more rah-rah, go team doublespeak from Warner Bros.

"We are pleased to once again have a direct relationship with Redbox, providing their consumers access to our movies," said Ron Sanders, president, Warner Home Video. "In addition, we look forward to working together on other key initiatives such as UltraViolet and creating promotional opportunities to offer consumers great content when and where they want it."

Translation: We are pleased that we have prevented Redbox from simply purchasing our movies from a third party and renting them out during our arbitrary blackout periods. In addition, we look forward to pushing our clunky digital services and creating restrictive "opportunities" to offer consumers great content when and where we say they can have it.

We've written about patent trolling giant Intellectual Ventures many times, including how it is notoriously secretive about almost everything. Its deals with companies (often involving them forking over hundreds of millions of dollars to not get sued) are hidden away behind strict non-disclosure agreements. It also hides the various patents in over 1,000 shell companies. At other times it "sells" patents to independent trolls, but most people believe that it still gets a cut of any revenue that comes out of those trolling operations.

An operation called IP Checkups -- a "patent analytics firm" -- is trying to shine some more light on IV's secret patent portfolio and has launched a crowdfunding campaign to raise money to investigate the company's patents.

We want to create a publicly-accessible database of patents owned by Intellectual Ventures and its shell companies. We also want to share our investigation with curious observers, using our online IV Thicket case files to show how we unearth Intellectual Ventures’ patent portfolio.

They plan to identify all of the patents, then try to "unravel the complex web of Intellectual Ventures' shell companies and financial interests to see where Intellectual Ventures is holding its IP assets." Finally, they plan to reveal all of the information publicly. The company claims that it believes in the patent system, but that it believes that the market for patents needs to be more open and transparent.

I have no idea how effective this project might be, or how well they'll be able to track down the patents or untangle the shell companies. Attempts by others to do this (on more of an ad hoc basis) haven't worked out too well. They're seeking $80,000 for the project, which strikes me as both ambitious for a crowdfunded project and (at the same time) probably way too little money to accomplish the goal. If I were them, I would have started by already revealing a few key IV patents or questionable shell company relationships to first generate interest in going further -- but that, alone, could be difficult. Still, it will be interesting to see if they have any success in shining some light on the dark corners of IV's trolling operations.

For many years, we've noted that courts have been very, very reluctant to allow lawsuits against companies who leak private data, when there's no evidence that the leaked data was used to create harm. The courts have more or less said, no harm, no broken laws. So it seemed likely that the class action lawsuit against software startup Path, for uploading a user's address book, wasn't likely to have much of a chance in court. As you may recall, earlier this year, there was a tremendous hubbub when some people realized that in order to use a "find your friends" feature, it uploaded a user's entire address book to a server. The reality is that many apps did exactly the same thing, because it made the process much easier. However, you can see why people would be quite annoyed and upset about a service grabbing their entire address book, without making it explicit that was about to happen.

Regardless, the lawsuits against Path and others didn't seem likely to have much of a chance -- but in one of the main cases against Path, the plaintiff who is trying to do a class action lawsuit came up with a way to try to show "harm," claiming that it would cost him $12,250 to hire someone to remove the Path app (though he never claimed to have actually paid that). Path responded by noting that deleting its app is "a simple act requiring no more than two swipes of his finger on his phone," and suggesting that the $12,250 is completely and totally bogus. The judge, however, is letting the case proceed, noting that at this stage of the game, it has to accept the $12,250 as true, and Path can push back on the validity of the statement later in the process.

The ruling does dismiss (while leaving open the possibility of amendment) a bunch of the claims, showing that the plaintiff, Oscar Hernandez, really tried to throw the kitchen sink at Path -- with a bunch of claims that made no sense at all. So it throws out the claim of wiretapping (no communications intercepted), the "Stored Communications Act" claim (no communications service or electronic storage as defined in the act is present), "Invasion of Privacy" under California state law (fails again for a lack of interception), "public disclosure of private facts" (nothing was publicly disclosed, so...), and trespass (he failed to show "significant impairment" as required by the law). On other points the motion to dismiss was denied, but on the whole, it seems likely that Path is going to win this case in the end. I'm just amazed at the $12,250 claim as an attempt to show "harm." They may have gotten away with it so far, but would a court really allow such a bogus claim to stand? Eventually, it's going to be shown that removing Path from an iPhone is ridiculously simple.

Techdirt has written before about the aggressive enforcement habits of the Tolkien estate, once in connection with the name "Tolkien", and once regarding the word "Hobbit". Looks like they're at it again, down in New Zealand:

Victoria University's Brent Alloway has organised a free public lecture on Homo floresiensis, a species closely related to humans which lived on Flores Island, but has been told he is not allowed to call the free public lecture 'The Other Hobbit'.

The volcanologist wrote to the estate of Hobbit author JRR Tolkein about the event on December 1 as a courtesy, but was told by Wellington lawyers AJ Park representing the estate that he was not allowed to use the word.

That's pretty ridiculous from many viewpoints. First, this is a free public lecture from a scientist -- not a commercial use of any kind. Secondly, the hominids in question have been called "hobbits" by the scientific community almost since their discovery in 2004, so this is a very well-established usage. Finally -- and most interestingly -- over on Twitter, Chris Puttick pointed out that Tolkien wasn't even the first to use the term "hobbit" in this sense:

The word also turns up in a very long list of folkloric supernatural creatures in the writings of Michael Aislabie Denham (d.1859), printed in volume 2 of "The Denham Tracts" [ed. James Hardy, London: Folklore Society, 1895], a compilation of Denham's scattered publications. Denham was an early folklorist who concentrated on Northumberland, Durham, Westmoreland, Cumberland, the Isle of Man, and Scotland.

Since the book appeared in 1895, and Denham died in 1859, that would seem to place all of its text – and hence the creature known as a "hobbit" - in the public domain. I wonder what the Tolkien Estate will say to that?

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

Every time you think that lawyers may have finally caught on to the fact that sending out ridiculous cease and desist letters to silence things they don't like will backfire on them, you hear of yet another case of it happening. This time it's tobacco giant Philip Morris, who sent a cease & desist letter to artist Brad Troemel for some artwork he had up on his Etsy page. He had two different pieces for sale on Etsy, each involving a Marlboro box. One of them is still up. It's the "dean & deluca low calorie snack inside Marlboro box w/ Cerebral Palsy Tissue/Organ Kidney Cancer Green Ribbon Glittery Sticker (Ethical) 1/2" (catchy name): According to the genius lawyers at Philip Morris, consumers seeing this are going to be confused into believing that Philip Morris is actually endorsing the product. Because, apparently, Philip Morris believes its consumers are complete morons who can't understand art-as-social-commentary. This reminds me of Louis Vuitton's similar trademark bullying to shut down art exhibits critical of its products. Trademark bullying to stifle criticism isn't new, but it's pretty ridiculous. The end result, of course, is that Troemel's work -- and the commentary on the original products -- will now get that much more attention due to PM's crazy attempt to make it go away.

Wow. We've heard about all sorts of crazy copyright lawsuits, but every so often you get one that just makes you sit back and wonder at the amazing chutzpah it must have taken for a lawyer to actually go forward and file a case. This is one of those times. The estate of William Faulkner, Faulkner Literary Rights LLC, has sued Sony Pictures Classics and a bunch of movie distributors over the Woody Allen movie Midnight in Paris.

At one point in the movie the lead character, played by Owen Wilson, misquotes a nine-word William Faulkner quote. Quoting directly from the lawsuit:

In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").

The lawsuit points out that the book first was registered with the copyright office in 1951 and it was renewed in 1979. I don't think anyone doubts that the copyright on the book is legit -- but, seriously? He quoted nine words (really eight if you drop one for the error in the quote). This has to qualify as either de minimis use or fair use, at the very least. And, seriously, what kind of harm does the Faulkner estate really think happened here? The filing misstates the nature of copyright law, arguing that it has the exclusive right to reproduce or distribute the quote -- completely ignoring fair use or de minimis use as possibilities that push back on that "exclusive right."

Beyond that, they try an even more ridiculous argument, dropping into the Lanham Act (trademark law) claiming (ridiculously):

The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.

The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to the origin, sponsorship or approval of Sony's goods, services, or commercial activity by William Faulkner and/or his written works.

To which we can only think to ask... who, exactly, could possibly be confused by this? Seriously. Faulkner died in 1962. I don't think anyone thinks he's officially affiliated with the movie. Hell, even if he was alive, we're talking about eight words misquoted.

Oh, and did we mention that the Faulkner estate claims that Sony's actions here were malicious, fraudulent, deliberate and/or willful. Or, you know, perhaps it just knows that quoting 8 words from William Faulkner doesn't infringe a damn thing. Later, they argue that the use of Faulkner's name was "grossly negligent." Because, you know, mentioning actual human beings without their permission is against the law... other than the fact that it's not.

Even the awesome folks over at Courthouse News, who tend to be a "just the facts" kind of organization couldn't resist adding some commentary on this particular case:

Although Courthouse News customarily refrains from commenting upon litigation in the story in which the lawsuit is reported, and at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done.

As we've described in the past, the insurance companies that back movie productions are notoriously risk averse on IP things, and they have lawyers trained in this kind of thing go through movies bit by bit to make sure every possible bit of copyright or trademark issue has clearance or they won't approve errors and omissions insurance (E&O). They take this process pretty seriously (quite often too seriously). If this bit got through that process unscathed, it seems likely that Sony (and its insurers) are quite confident that this sort of thing is completely legit.

Hopefully Sony Pictures doesn't wimp out and pay the Faulkner Literary Rights folks to go away. This is a case worth fighting, and you'd have to hope that Sony recognizes that it's quite likely to succeed in court.

We recently discussed the common fallacy that "copyright is in the Constitution", but that's only one example of copyright defenders misrepresenting a document to support their cause. Another favorite, often invoked by folks like Rob Levine and David Lowery, is the UN's Universal Declaration of Human Rights—a relatively toothless document in the US (compared to the Constitution) but one that feels good to have on your side.

But here's the thing: it doesn't say what copyright supporters think it does. Not even close. Not only are they focusing on only one half of the declaration's relevant article, and ignoring additional detail from another UN declaration that is meant to go hand-in-hand with the first... even the tiny part they focus doesn't match their position. Let's take a look.

The line in the declaration that establishes a right to some sort of intellectual property is Article 27, Section 2:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Right off the bat, we see a problem: moral and material rights. The US, explicitly and intentionally (with some very minor exceptions) does not protect the moral rights of creators—the copyright system is based almost exclusively around economic rights. So when copyright supporters in America cite the Declaration of Human Rights, they are in fact pointing to a clause that the US directly violates.

Now, maybe that doesn't sound like much—after all, at least US copyright is in line with the "material rights" part. But is it? That's where we need to look at the bigger picture of international rights. That's something that copyright supporters never seem to do, and it's pretty obvious why. As mentioned, the line they cite is the second section of the relevant article—now lets have a look at Section 1:

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Now it's starting to look like the Human Rights Commission intended for there to be a little bit more balance in Article 27—and that they had their priorities straight. Sections 1 and 2, taken together, would seem to suggest (at the very least) that copyright should be focused primarily on commercial endeavours (and that patents are a pretty questionable concept all around).

Is that a subjective interpretation? By itself, yes—but don't take my word for it. See, there's something else that copyright supporters are leaving out of the picture: the Universal Declaration of Human Rights is just one of three documents that, together, form the International Bill of Human Rights (nobody ever accused the UN of efficiency). Another, the International Covenant on Economic, Social and Cultural Rights, provides considerable additional detail on the question of creators' rights. Let's take a look at Article 15 of that document:

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

That's an awful lot of caveats and addenda, all focused on ensuring that the copyright reins aren't too tight. In fact it seems like the text is specifically trying to distance itself from traditional intellectual property regimes. This time, you definitely don't have to take my word for it, because here's where we get to the really damning evidence: the general comment (pdf) on the document from the Economic and Social Council, which attempts to further explain the intention of all the rights. Here are some choice quotes:

Whereas the human right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions safeguards the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage, as well as their basic material interests which are necessary to enable authors to enjoy an adequate standard of living, intellectual property regimes primarily protect business and corporate interests and investments. Moreover, the scope of protection of the moral and material interests of the author provided for by article 15, paragraph 1 (c), does not necessarily coincide with what is referred to as intellectual property rights under national legislation or international agreements.

It is therefore important not to equate intellectual property rights with the human right recognized in article 15, paragraph 1 (c).

...

The right to benefit from the protection of the moral and material interests resulting from one’s scientific, literary and artistic productions seeks to encourage the active contribution of creators to the arts and sciences and to the progress of society as a whole. As such, it is intrinsically linked to the other rights recognized in article 15 of the Covenant, i.e. the right to take part in cultural life (art. 15, para. 1 (a)), the right to enjoy the benefits of scientific progress and its applications (art. 15, para. 1 (b)), and the freedom indispensable for scientific research and creative activity (art. 15, para. 3).

...

Moreover, the realization of article 15, paragraph 1 (c), is dependent on the enjoyment of other human rights guaranteed in the International Bill of Human Rights and other international and regional instruments, such as the right to own property alone as well as in association with others, the freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds, the right to the full development of the human personality, and rights of cultural participation, including cultural rights of specific groups.

Starting to paint a different picture, no? The comment goes on to offer some specifics, underlining how thoroughly different this human right is from intellectual property rights. For one thing, it's not transferable:

The Committee considers that only the “author”, namely the creator, whether man or woman, individual or group of individuals, of scientific, literary or artistic productions, such as, inter alia, writers and artists, can be the beneficiary of the protection of article 15, paragraph 1 (c). This follows from the words “everyone”, “he” and “author”, which indicate that the drafters of that article seemed to have believed authors of scientific, literary or artistic productions to be natural persons, without at that time realizing that they could also be groups of individuals. Under the existing international treaty protection regimes, legal entities are included among the holders of intellectual property rights. However, as noted above, their entitlements, because of their different nature, are not protected at the level of human rights.

For another, it calls for a bunch of specific moral rights that do not and have never existed in the US:

In line with the drafting history of article 27, paragraph 2, of the Universal Declaration of Human Rights and article 15, paragraph 1 (c), of the Covenant, the Committee considers that “moral interests” in article 15, paragraph 1 (c), include the right of authors to be recognized as the creators of their scientific, literary and artistic productions and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, such productions, which would be prejudicial to their honour and reputation

And even when it comes to material rights, special mention is given to the fact that this doesn't have to resemble traditional copyright, although it can:

The term of protection of material interests under article 15, paragraph 1 (c), need not extend over the entire lifespan of an author. Rather, the purpose of enabling authors to enjoy an adequate standard of living can also be achieved through one-time payments or by vesting an author, for a limited period of time, with the exclusive right to exploit his scientific, literary or artistic production

Now, in addition to all this, the general comment does include plenty of lines that make room for traditional intellectual property laws—it's not as though the whole thing reads as a total condemnation of copyright. However, this closer look at the contours of international human rights makes it abundantly clear that it was not intended as an endorsement of copyright either. Every time something that sounds like US copyright is mentioned, it's because it's being permitted but not required—and often written in such a way as to suggest that it's not recommended either. Moreover, it's impossible to avoid the fact that the US does not recognize the moral rights called for in the declaration—which I actually think is probably a good thing, but can't just be ignored by those who want to use the declaration as ammo for defending copyright.

I think the question of whether or not there is an innate human right to control one's creative output, in either the moral or material sense or both, is a fascinating and important topic with lots of room for debate. But that has very little to do with the current economic regime of copyright—least of all in the US, since many other countries do wrap moral rights into copyright law. Apologies to the IP crowd, but neither the Founding Fathers nor the United Nations support you the way you think they do—so you're going to have to stop falsely appealing to their authority and come up with some new arguments.

As a UK court recently ruled, Apple's UK website is required to post a notice about the court ruling that Samsung didn't copy Apple's design with its devices. Apple has now complied with a tiny link in the page footer: The notice itself is amusing in its somewhat passive aggressive tone. It first notes the court ruling, and then explains:

In the ruling, the judge made several important points comparing the designs of the Apple and Samsung products:

What kind of important points? Well, all the ones about how Apple's products are awesome, while Samsung's... not so much.

"The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design."

"The informed user's overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool."

And then... it reminds you that other countries have ruled completely otherwise:

However, in a case tried in Germany regarding the same patent, the court found that Samsung engaged in unfair competition by copying the iPad design. A U.S. jury also found Samsung guilty of infringing on Apple's design and utility patents, awarding over one billion U.S. dollars in damages to Apple Inc. So while the U.K. court did not find Samsung guilty of infringement, other courts have recognized that in the course of creating its Galaxy tablet, Samsung willfully copied Apple's far more popular iPad.

In other words, it's the petulant Apple "complying" with the UK judge, while at the same time making sure to add a "but, but, but... the judge is really wrong -- other than the part where he likes our design."

Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the "barriers" erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a "blank check" for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit these Fourth Amendment violations publicly.

The good news is that a few of these overreaches are receiving judicial pushback. Orin Kerr at the Volokh Conspiracy has a very brief writeup of a recent shutdown of another cellphone-related fishing expedition led by an assistant US Attorney. An attempt was made to acquire records for ALL cell phones utilizing four different towers in the area of a specific crime at the time of the event. As Kerr notes, this ruling refers to the Fifth Circuit court decision that found cell phone data to be protected under the Fourth Amendment, thus requiring a warrant to access it.

Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:

Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.

There has been a lot of discussion here at Techdirt regarding the incredible lack of knowledge present in those seeking to regulate or exploit various technologies. Considering the amount of possible collateral damage and the heightened chance of rights violations, you'd think these entities would be exercising maximum caution before tampering with something they don't understand. Instead, the common approach is to use the ends (safety, crime prevention, etc.) to justify the missteps and rights-trampling of the means, leaving the judicial system and various trampled citizens to sort out the mess.

Judge Smith quotes the Fourth Amendment and points out that warrants must be issued and only "upon probable cause" before continuing to run down the list of wrongs in this request.

Finally, there is no discussion about what the Government intends to do with all of the data related to innocent people who are not the target of the criminal investigation. In one criminal investigation, the Government received the names, cell phone numbers, and subscriber information of 179 innocent individuals. See United States v. Soto, No. 3:09CR200 (D.Conn. May 18, 2010) (Memorandum in Support of Motion to Suppress). Although the use of a court-sanctioned cell tower dump invariably leads to such information being provided to the Government, in order to receive such data, the Government at a minimum should have a protocol to address how to handle this sensitive private information.

But, as Smith points out, the government doesn't have a protocol in place, even more than two years down the road.

Although this issue was raised at the hearing, the Government has not addressed it to date.

This is hardly new territory for government agencies. The TSA has had nearly 20 months to begin taking public comments on the use of various body imaging scanners, but despite two trips to the DC Circuit Court, it has yet to begin this process, something generally undertaken before implenting a new system. If it's something the government feels may be unpopular with the public, it tends to attempt to stall indefinitely, an (in)action that (again) places the burden back on the courts and the general public.

But, at least in this case, Judge Smith is using this lack of action against the government representatives.

This failure to address the privacy rights for the Fourth Amendment concerns of these innocent subscribers whose information will be compromised as a request of the cell tower dump is another factor warranting the denial of the application.

It's a good sign that stalling tactics may hurt more than help in the future. Many government and law enforcement agencies are still looking for any loophole in current laws in order to bypass the limitations placed on them by the Constitution. There's still a long way to go before there's anything resembling an equitable relationship between the general public and those in power, but we'll take everything we can get and (hopefully) receive more help pushing back against these intrusions.

I'll be honest about my viewpoint to start this piece: I hate geo-restrictions, particularly on digital goods. I simply cannot see how they benefit anyone. Customers are blocked or pay different prices for like goods, often times angering them (not something you typically want to do to customers). Companies feel the brunt of this anger, or else at least feel the impact of the a restricted customer base through their own unwillingness to deal fairly in a global marketplace. Perhaps most importantly, for savvy customers, there are tools to simply get around the artificial barriers these companies erect, making them just more useless DRM-like nonsense.

And, apparently, some consumer advocate groups out there are beginning to feel similarly. Take Australian advocacy group CHOICE, for instance, who recently submitted to a parliamentary inquiry on technology pricing with the opinion that consumers down under should be spoofing their IP addresses to get better deals from global providers.

The group has today released a guide explaining how to do so using virtual private networks (VPNs) and alternative domain name systems (DNSs).

Choice also suggested setting up US iTunes accounts and using surrogate US addresses for forwarding packages from American stores. Choice has noted previously that Australians pay 52 per cent more for digital music downloads on iTunes compared to US users.

If you just heard a loud thumping sound, it was probably the collective fainting of technology and media providers over the idea of Australians paying the same price for goods as Americans. You can almost hear their angry cries now, can't you? "This is geo-piracy! They aren't playing by the rules!"

And that might be true. But the thing is, if the rules suck, why should you play by them? Take the iTunes example: how in the world, with a globally connected internet and the offering of digital goods, could it possibly make sense for a consumer in one nation to pay more than a consumer in another? Excluding the false barriers that have been erected (like licensing, geo-restrictions, etc.), where is the logic in this practice? Minus the occasional invalidation of product warranties, there is none, as CHOICE notes.

"As long as consumers are aware of the risks and do their due-diligence, there is no reason why they cannot pick up a bargain online with confidence," Levey said. "It also undermines the virtual walls these companies have built around the Australian market, which in the long term will help bring down prices to a global parity."

Or, in other words, position global providers to actually compete in a global marketplace, not the artificially segmented anti-consumer marketplace they've constructed for themselves.

Back in May, Techdirt pointed to a presentation from Mike Palmedo listing a wide range of research that demonstrates the lack of a connection between policies introducing stricter IP laws or enforcement and economic growth or innovation. Apparently, the African Union Scientific, Technical and Research Commission didn't get around to reading that post, since it has produced a draft statute for the creation of a new Pan-Africa Intellectual Property Organization that seems based entirely on assuming this link exists.

Here's how Brook K. Baker, a US law professor specializing in this area, describes these plans over on infojustice.org:

The statute, drafted by true believers of IP-maximalist ideology, proposes to establish a region-wide intellectual property organization with the sole agenda of expanding IP rights, strengthening enforcement, harmonizing regional legislation, and eventually facilitating the granting of IP monopolies by a central granting authority that may well be legally binding on Member States.

One reason the proposal is so bad is that, once again, all the benefits flow to rightsholders at the expense of users:

Throughout the proposed legislation, there is not one reference to achieving a balance between the interests of rightholders and users of technology and creative endeavors. There is not a word on preserving permitted limitations or exceptions to IPRs or controlling misuse of IP monopolies. There is not a single commitment to withstanding pressures from the US and EU for ever expanding intellectual property rights that are longer, stronger and broader nor for the draconian enforcement obligations that suppress legitimate competition and impose costly border, criminal, and civil enforcement obligations on Africa taxpayers.

The draft will be considered at a meeting of African science and technology ministers in the Republic of Congo in November. If you want to read the details, the proposed text is available (as a Microsoft Word file) from the Intellectual Property Watch site.

It's particularly disappointing that this hugely retrogressive move should be proposed at a time when African innovation is really starting to take off, with a number of tech hubs emerging across the continent. The present proposals seem likely to throttle those exciting developments, because they will impose a neo-colonial IP framework on Africa that will see it ruthlessly exploited by Western companies thanks to their copyright and patent monopolies, just as its physical resources were expropriated in the 19th century.

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