French politicians had been pushing for years to extend its infamous "you must be a pirate" copyright levy (tax) to tablets, and it appears that's now in place. Apple has been ordered to pay €5 million for all the copying supposedly going on via tablets. Apple pushed back, pointing out that there wasn't any actual evidence to support the premise that the iPad was used for copying music, but the court basically said "too bad" and "here, pay €5 million while we figure out the amount you'll actually owe:"

Apple argued as follows: the decision was not based on any hard data flowing from a study of actual use and merely replicated a previous decision applicable to mobile telephones, which decision was quashed for failing to properly carve out professional use....

[....] However, Copie France sought an award of a provisional amount, relying not on decision #13 but rather on the general statutory principle that such compensation is due. The Court agreed with this line of reasoning, noting that such principle was enshrined in both domestic and European law. It further noted that Apple, as supplier of the equipment at issue, was indeed the party that owed the levy. The Court thus fixed the amount of the provision at €5,000,000, to be applied against the final sum to be determined for the period between February and December 2011 (and ordered that its judgment be enforceable notwithstanding any appeal).

And, yes, technically, this tax is not supposed to be on "piracy" but on "legal copies" made, but everyone knows that argument is a smokescreen. The whole point of levies has really been to try to compensate copyright owners for copies they can't directly tax. And, while Apple will have to pay up here, you can bet this will end up coming out of consumers pockets, as always happens with copyright levies, which serve to (1) make innovative technologies more expensive and (2) build a giant bureaucracy where not much money ever actually goes back to artists.

For this week's awesome stuff post, we've got links to movies about things that we regularly talk about here on Techdirt: the prosecution of Aaron Swartz, the CFAA, patents and piracy.

• First up, is a documentary about Aaron Swartz called The Internet's Own Boy by Brian Knappenberger, who previously did a documentary about Anonymous. Knappenberger's film isn't a "memorial" about Swartz, but rather an "investigative" documentary about his story and the lawsuit against him, as well as the legal structure that led to his arrest and trial. The video that Knappenberger has put together is really compelling and touching: This project has received a lot of attention, so there's no surprise that it's quite close to its $75,000 target with a few weeks to go. It looks like it should be a great project to support.
• From once CFAA case to another. Krystof Andres & George Russell are doing a documentary called The Hedgehog & The Hare, all about the CFAA, but mainly focused on the case against Andrew "Weev" Auernheimer. The documentary will also explore how the CFAA goes way too far in trying to criminalize perfectly reasonable computer activities. The target for this project had much more modest goals than the Swartz one, though the production values definitely look a bit more amateurish. Plus, frankly, the rewards on the Swartz movie are a lot more reasonable. That said, with just a few days left, it looks like this movie is likely to squeak by the target even if it's just slightly under as I write this.
• This next one, I'm a bit less sure about, but the topic could be interesting. It's supposedly a short film, made in South Africa about the big pharmaceutical makers going after generic drug makers, called The Cure. What makes me a bit unsure about is that the filmmakers, Katey Carson and Errol Schwartz, seem a hell of a lot more excited about the fact that (a) they signed up some "Oscar-winning talent" to be in the film and (b) that they're filming the whole thing with an iPhone, than they are about the story, which they barely mention at all. The topic sounds interesting. I just wish they'd actually have said something about that, rather than the other stuff which really isn't that interesting. The project has barely raised any money, and they're pretty ambitious to seek $35,000 for this. But since it's an Indiegogo "flex funding" campaign, they'll get the money even if they don't raise the full amount. Also, the "rewards" you get back seem ridiculously high priced. You have to pay $100 just to get a download of the short film and $50 for the script? Hmmm. Love the idea of a film that highlights problems with drug patents, but not sure this is the best way to do it.
• And, finally, a documentary about piracy. I mean that's what critics insist this site is all about, right? So I figured, why not. Here's a documentary film about a Somali pirate -- you know, one who actually hijacked a ship, called The Smiling Pirate, which aims to tell the story of the one remaining living member of the pirates who hijacked the Maersk Alabama. As the story suggests, despite a forthcoming Tom Hanks movie about this whole thing, there appear to be a lot more questions than answers about what really happened both aboard the ship and then with the captured pirate after the whole thing happened. Sounds like an interesting story, but it hasn't picked up very many backers yet. It's also an Indiegogo flexible funding project, so will receive any money it raises, but it's not clear if it'll get enough to really support the making of the documentary any time soon.

That's it for this week. Next week we'll be back with more awesome stuff.

Last year we wrote about EMI suing the Irish government for having the temerity not to pass a SOPA-Like censorship law. That truly extraordinary sense of entitlement seemed to be a one-off, but The Hollywood Reporter now brings us another (via @LifeinSicily):

Italian producer Aurelio De Laurentiis has proposed a €12.5 billion ($16 billion) class action lawsuit against the Italian state for lost revenue he says movie producers have sustained because the state has done too little to combat piracy.

The justification for that rather significant sum is the following:

"The problem of piracy is very important, and I say we should ask for €12.5 billion in order to obtain at least €2.5 billion [$3.2 billion], the amount we lose each year because of piracy," De Laurentiis said.

There was no explanation of where that €2.5 billion figure came from. According to estimates quoted in Techdirt's "The Sky is Rising 2", gross box office sales for the Italian film industry were €700 million in 2011, so it seems highly unlikely that it is "losing" €2.5 billion each year. It may be significant that De Laurentiis is part of a dynasty of famous Italian film producers who can be justifiably proud of helping to create some of the greatest masterpieces of 20th-century Italian cinema. Perhaps he is still hankering for those good old days when people flocked to see the latest productions from his father and uncle.

But that was then, this is now: the Internet is having a massively disruptive effect on the film industry, just as it is on many others. That doesn't give film producers any entitlement to handouts from the Italian state for sales they claim they might have made. And notice, too, that De Laurentiis is calling for compensation for allegedly lost sales, not lost profits, which might have been minimal.

It's sad that so many in the copyright world apply their creativity to thinking up reasons why they should be protected by governments from the massive changes underway throughout the world, rather than applying that creativity to coming up with new ways of making money. They could do worse than listen to Riccardo Tozzi, president of Italy's audiovisual association, who was the co-host with De Laurentiis of the film industry symposium where the latter made his call for legal action:

Tozzi suggested a different tact: making it easier for people to legally download films, for a fee. "We should balance the threat of illegal downloads with a legal supply of films," he said. "It can be too difficult to download films legally, so there's no good alternative" to piracy.

Sounds easier than suing the Italian government....

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We've been among the many, many people who have highlighted the MPAA's penchant for using totally bogus "piracy" numbers in arguing for why it needs ever stronger copyright laws and enforcement. Others have stepped in with thorough debunkings as well, including its favorite "$58 billion" in losses that was bandied about regularly during the SOPA fight. The Government Accountability Office famously mocked the MPAA's piracy claims as totally unsubstantiated, in part because the MPAA wouldn't even explain the basis for the numbers it used.

It appears that so many people now realize that the MPAA's claims on "losses" from piracy are so ridiculous that even the MPAA has decided not to use those numbers any more. Buried in a longer Wall Street Journal piece by Carl Bialik is this tidbit:

But the MPAA is focusing elsewhere, and no longer citing the earlier studies, after an internal review that followed the SOPA debate, MPAA spokesman Howard Gantman said. “At the current time we do not actively cite the figures directly relating to movie piracy, as the landscape has changed significantly since these studies were conducted both regarding the growth of broadband and the development of streaming technology, as well as the introduction of hundreds of new sites world-wide for viewing legal online content,” Gantman said.

That's not to say that the MPAA has suddenly become reasonable. The rest of that article highlights other, highly questionable, attempts by the MPAA to justify its maximalist agenda, including new research, some of which seems to rely on similarly questionable methodology. But, at the very least, it appears that the "old" bogus numbers have been so discredited that even the MPAA won't use them any more.

We've been discussing Maria Pallante's plans for copyright reform, which include a whole bunch of ideas -- some good, some bad and many as yet undetermined. In hearings today before the House Judiciary Committee, Pallante discussed a lot of this, but one surprising point that she had not clearly stated before is that "piracy should not be about the teenager downloading music at home." Instead, she talked about focusing on "the big pirates" who were doing it as a business. This is a fascinating statement as it may be the first time I've heard the Copyright Office suggest that personal use maybe shouldn't be considered infringement. I'm sure we'll have more on the (still ongoing) hearing later, but for now, this admission was a bit of a surprise worth noting.

The wheels have now come completely off EA's DRMobile, thanks to its botched SimCity launch that was marred by server issues, long lines at the refund counter and some amazingly bad coding, all held together by Maxis GM Lucy Bradshaw's irrepressible bullshit-spinning. The backlash has been enormous and EA is likely wishing it was back in the good old days when Spore (remember that backlash?) was nothing more than harmless vaporware.

It's safe to say that EA has almost single-handedly run the good highly-tarnished name of DRM and internet-only requirements into the ground, finishing the job Diablo 3 began last year. Many gamers have pointed out the futility of these anti-piracy (and anti-cheating/hacking) efforts as well as unleashed their fury at being handed a worthless, broken-on-purpose product in exchange for their money.

And it's not just angry customers making noise. Super Meat Boy developer Tommy Refenes has weighed in with his thoughts on EA's open hostility towards its paying customers. (It's a truly excellent post, and I would encourage you to click through and read the entire article.)

The first problem he sees with EA's actions is its insistence on using intangible losses from piracy to shape its software development.

I think I can safely say that Super Meat Boy has been pirated at least 200,000 times. We are closing in on 2 million sales and assuming a 10% piracy to sales ratio does not seem unreasonable. As a forward thinking developer who exists in the present, I realize and accept that a pirated copy of a digital game does not equate to money being taken out of my pocket. Team Meat shows no loss in our year end totals due to piracy and neither should any other developer.

This last sentence goes against the ingrained thinking of many in the content industries. These industries tend to conjure up huge loss numbers year after year to justify DRM, always-online requirements and a general push for more anti-piracy efforts (including legislation.) To them, every illegal download is a lost sale. It has to be, otherwise the entire premise behind their actions falls apart. (Contrast this all-too-common reaction with Edmund McMillen's [Tommy Refenes' partner at Team Meat] disappointment that Super Meat Boy wasn't charting higher on the Pirate Bay's download charts.)

Creative accounting is the norm in these industries and nothing is more creative than showing a loss you can't possibly quantify, as Refenes points out.

Loss due to piracy is an implied loss because it is not a calculable loss. You cannot, with any accuracy, state that because your game was pirated 300 times you lost 300 sales. You cannot prove even one lost sale because there is no evidence to state that any one person who pirated your game would have bought your game if piracy did not exist. From an accounting perspective it’s speculative and a company cannot accurately determine loss or gain based on speculative accounting.

Accuracy isn't really the aim when it comes to justifying the punishment of your paying customers. In order to get them to accept broken software wrapped in restrictive licenses, they first must be made to believe that millions and millions of dollars are lost each year to piracy. They must be at least somewhat convinced that EA (and Ubisoft, among others) were "forced" to insert crippling coding in order to keep the company afloat in a sea of pirating pirates.

But what have these companies actually lost when something is pirated? Is that "cost" greater than the very real cost of returning a customer's money to them? EA doesn't seem to understand there's more than one way to lose a sale.

After the frustrations with SimCity I asked Origin for a refund and received one. This was money they had and then lost a few days later. Applying our earlier conversation about calculable loss, there is a loss that is quantifiable, that will show up in accounting spreadsheets and does take away from profit. That loss is the return, and it is much more dangerous than someone stealing your game...

In the retail world, you could potentially put a return back on the shelf, you could find another customer that wants it, sell it to them and there would be virtually no loss. In the digital world, because there is no set amount of goods, you gain nothing back (one plus infinity is still infinity). It’s only a negative experience. A negative frustrating experience for a customer should be considered more damaging than a torrent of your game.

For some reason, many content companies cannot see the truth in this statement. Even though they can't prove that a pirated copy equals a lost sale, they continue to act as though piracy is a greater threat to their business than an angry customer base. For companies like EA, the customer base is large enough that it can usually be shrugged off. For smaller companies, this sort of thinking can do much more damage. In either case, negative experiences do no favors for content creators, especially in an era where people have thousands of entertainment options at their fingertips, 24 hours a day.

Refenes brings the fight to developers (like Maxis) who use "lost sale" figures pulled from the ether to justify the addition of DRM.

I challenge a developer to show evidence that accurately shows implementation of DRM is a return on investment and that losses due to piracy can be calculated. I do not believe this is possible.

Any honest developer simply can't do this. Pointing to something like a download total from The Pirate Bay doesn't definitively show anything more than the number of times that title was downloaded. Anything else is merely a theory, and a pretty weak one at that. But Refenes has a suggestion, one all content creators should take to heart.

I do believe people are less likely to pirate your software if the software is easy to buy, easy to run, and does what is advertised.

Why this instead of fighting piracy? Because taking away the free option just isn't enough.

People have to WANT to buy your software, people have to WANT to support you. People need to care about your employees and your company’s well being. There is no better way to achieve that than making sure what you put out there is the best you can do and you treat your customers with respect.

EA clearly has little respect for its customers. The frontmouth of Maxis, whether using her own words or having them supplied from higher up, proved this with a week of complete denialism. There was no respect from launch day forward. Every new hole in EA's story was greeted with re-confirmation of the same story, occasionally mixed with a bit of hedging.

The developers at Team Meat obviously respect their customers and have been rewarded for their efforts. Even with evidence of massive piracy staring them in the face, they never opted to cripple their game with a "piracy speedbump" that would have adversely affected those who chose to give them their hard-earned money.

A guest post from Peter Richman, a lawyer working in the motion picture industry in Los Angeles.

After last year's Stop Online Privacy Act (SOPA) debacle, Hollywood quietly retreated from the copyright debate to nurse its wounds and rethink strategy. Now, with recent activity at the Motion Picture Association of America (MPAA) and the introduction of the Copyright Alert System (CAS), the industry is poised to re-enter the conversation with a fresh plan. As MPAA Chairman Chris Dodd recently admitted to the National Press Club, "I'm looking for a new approach." But in the wake of SOPA, with opposition from Silicon Valley and little traction in D.C., is there anywhere left to look? As it turns out, Dodd's answers may be waiting in the unlikeliest of places -- Hollywood's own backyard.

Don't let the party line fool you -- if there's one thing the film and television industry can't live without, it's copyright infringement. Ask any assistant. Piracy in Hollywood is not just a quiet expectation, it's a stated requirement, and oftentimes a formal part of job training. When I started as a studio assistant, one of the first lessons I learned was how to rip an encrypted DVD. But it's not just the studios. From agencies to management firms to offices all over town, the volume of infringing material that trades hands on a daily basis makes Hollywood look like a Chinese flea market.

Let's take an example. An agent wants to introduce her new director client to the town. How best to make the introduction? Burn 40 copies of the client's debut feature and send them out to producers. Now one of the producers watches the film and sees potential for a big-budget remake. How does he pitch the project to financiers? Burn another dozen copies and send them out. Now one of the financiers watches the film and wants to gauge the opinion of a younger demographic. So he burns a few copies and sends them to his daughters at college. And just like that, 3 executives (and their assistants) have committed over 50 acts of copyright infringement.

Now multiply that by the daily routine of buying, selling, and trading movies, TV shows, books, and comics, and piracy in Hollywood starts to look less like a dirty secret and more like a cultural norm. But beyond the illegality and hypocrisy of the situation lies a much more salient point which is its sheer, bottom-line necessity. Because the truth is, there's no better alternative, and not even a close second. The quick pace of the industry requires a constant flow of content and infringement is the way to get it done. In Hollywood, piracy isn't a matter of legal rights; it's just business.

So where does that leave industry policy? While it's safe to assume the MPAA doesn't endorse the casual infringement that courses through the industry, the organization is working hard to distance itself from SOPA's one-size-fits-all approach to IP protection. From Dodd's consistent rhetoric of cooperation to the recent appointment of Diane Strahan as COO, the MPAA has made a clear push to partner with the technology industry in the distribution and protection of digital content. Some may question whether these efforts are genuine -- is Strahan's background with UltraViolet and digital rights management the right type of experience for the job? Nevertheless, assuming the best, while it's certainly refreshing to see the industry operate under a banner of collaboration, the real question is whether these efforts are sufficient to craft a new, comprehensive copyright regime.

Let's take a step back. In the larger scheme of finding Dodd's "new approach," there's one inescapable reality -- intellectual property protection is a matter of law. Business strategies and technological advances shape the means of consuming and distributing content, but without a legal foundation for support, they'll continue to operate on shaky ground. Because as we've seen, whenever a new wall goes up, a new tunnel isn't far behind. And there's the elephant in the room of the MPAA's newfound belief in tech-centric partnerships -- what happens when those tunnels are exposed? When the CAS is subverted? When Ultraviolet is hacked? How will the MPAA respond when the new salvos break and we're left with the same copyright legislation still woefully unsuited to the times?

Enter the Hollywood pirates. This is where industry infringement can move the needle by highlighting the absolute kookiness of our copyright laws. The MPAA professes to support our current policy in the name of the agents, executives, and filmmakers who undermine that policy every single day. So what gives? Does the MPAA ignore its industry's behavior and retreat to the comfort of the status quo? Or does it stick with its new message, swallow the bitter pill, and truly commit to a new approach?

The answer comes down to leadership, and if Chris Dodd's words are anything to go by, I'm inclined to hope for the latter. In every speech, press release, and policy paper, the MPAA makes sure to stress one common point -- job creation. The film and television industry creates jobs -- not just in Los Angeles and New York, but across all 50 states. Those jobs are what the MPAA says it's fighting for, and when the industry says stop pirating, those jobs and a respect for their craft are a reason many of us listen. There are a host of issues wrapped up in the copyright debate -- creative, business, legal, technological -- but when the dust settles, the industry spends nearly $15 million a year on lobbying to protect its own interests and that means the jobs of its constituents.

So when a core requirement of those very jobs is to pirate copyright material, it is incumbent on the MPAA leadership to take a close look at the industry it represents and figure out why. If Dodd takes that look, he'll see the reality on the ground -- that there are scenarios where an owner can't control all uses of her work. That speed, or convenience, or necessity may take priority over a legal claim. In short, that content "in the wild" can take on a life of its own.

And sometimes that's a good thing.

Piracy facilitates business in this industry - and that means jobs. Obviously, the physical copying of Hollywood mailrooms is a far cry from the digital and international piracy truly threatening the studios, but the takeaway remains the same -- copyright is complicated, content is malleable, and any honest attempt to institute a new intellectual property regime needs to be flexible enough to accommodate the times. It may mean carve-outs and exceptions, it may mean years of research, and it may mean a renewed commitment to the legislative process. No matter the path, it means that as Dodd continues looking for a new approach, instead of starting on Capitol Hill or in Silicon Valley, Hollywood might be the place to look after all.

We've had a number of stories concerning the hit TV show Game of Thrones and the issue of people downloading unauthorized copies of the show. Due to a variety of reasons mostly centered around HBO's cable relationships, HBO has not made the show available online, for the most part, unless you already have a cable TV subscription that includes HBO. The math here is a bit silly (due to the ridiculous nature of how pay TV works these days), but HBO more or less has done the math that says it's better off losing out on people who are willing to pay and who will inevitably infringe instead, by not pissing off the pay TV folks who pay them a much bigger lump sum. I think this is short sighted, because while the math works out today, the trend is in the wrong direction, and if HBO doesn't get in front of that trend, by the time the math "catches up," they could be in a lot of trouble.

Indeed, HBO seems irked that Game of Thrones is the most "pirated" show on TV. And while it has tested out a standalone version of its HBOGo online offering, the reviews have not been great.

However, it appears that HBO is trying to do something about all of this, admitting that they need to and intend to make the show more widely available online:

According to Jeff Cusson, HBO’s senior vice president of corporate affairs, “We think the key to combating piracy is to make content like Game of Thrones available worldwide within the smallest window possible…to 176 territories within the week of the U.S. premiere.”

Cusson said, “HBO is also rolling out HBO Go internationally,” which means many viewers in Europe, Latin America, and in other locations like Hong Kong can watch Game of Thrones at their leisure on their iPad/iPhone, Roku, Xbox 360s, their Android devices, and selected Samsung Smart HDTVs.

First off, it's great that they recognize that the key is making the show more widely available. That's a step up from blaming fans who want to see the show but can't. Of course, it's still ridiculous that HBO Go can't work on other TVs other than "selected Samsung" TVs. But... none of this seems to apply to the US.

When pressed on doing more in the US, Cusson begins answering by not answering.

When asked about the prevalence of piracy in America, Cusson said, “We utilized various tools to protect our copyright in 2012.” I countered that they didn’t work, because it was still the most downloaded show that year. Cusson responded, “We think the success of our business shows that our approach is relatively successful.”

Of course, at one level, he's absolutely right. There's no reason to "stop" piracy if it's not actually harming the show (and, in fact, may very well be helping it). But, at some point, HBO is going to need to realize that it has to make the jump to providing authorized access to Americans who don't have a traditional cable connection. And the longer they wait, the harder it becomes to get people to invest in HBO, because they'll get used to unauthorized alternatives.

The Wall Street Journal recently ran a puff piece showing just how much work it is for NBC Universal to keep fighting all those darn pirates. It's basically a propaganda piece starring Rick "Save the Corn Farmers!" Cotton, NBC's general counsel who fights piracy the way that Captain Ahab chases Moby Dick. There are all sorts of problems with the piece, including the fact that it appears to believe that just because NBC is sending a lot more takedowns, it means that the "problem" is growing. Of course, as we were just discussing last week, when you look at the actual data, it makes a pretty clear case for anti-piracy efforts doing nothing to stop piracy, but investment in lots of innovative startups providing consumers what they want being the path to success. But, that's not Cotton's style.

Anyway, Janko Roettgers, over at PaidContent, wrote a nice post debunking much of the story, which quickly got three comments that all sounded vaguely similar in their poor use of the English language -- all of which tried to spin the story into "proof" that greater enforcement, such as the six strikes effort, was needed. Two of them make the laughable claim that each infringement represents "lost revenue." That's not how it works. Here's one of the three comments:

I’m glad the author is pointing out what is pretty clear to people who browse the internet everyday, piracy is still widespread and is evolving every year. Not even taking into account the huge piracy issues overseas, each of these takedown requests represents lost revenue for both views and time spend tracking and reporting this illegal behavior. NBC will and should continue to do this because legal viewing of their content is vital for their business. But the better long term solution is to create a system where NBC isn’t playing a carnival game just to receive the proper copyright benefits for the content they invest so much in.

Of course, the real way to get to that "long term solution" is for NBC to stop playing the carnival game of takedowns -- which do nothing to reduce infringement -- and focus on making sure its content is more widely available from more legitimate sources.

Either way, Janko quickly pointed out that, in a surprise to no one, it was pretty clear that the comments were from DC-based hired shills for the entertainment industry:

Kelseliz, AlexB and SteveFeather, I’m glad you all enjoyed my story. However, I’m not too surprised you all share the same point of view. After all, the three of you commented from the same Washington D.C.-based IP address, and one of the email addresses you left points to a D.C. lobbying firm that gets paid by major labels, rights holder groups and movie studios… but I’m sure that’s all just one big coincidence.

I know that it's common in our comments for people to accuse others of being "shills." Frankly, people jump to the shill label way too fast. While it is clear that some of our commenters do work in the industry, there are very few indications that they are paid to be propaganda spreaders, and I try to give them the benefit of the doubt (similarly, I would urge our commenters to stop throwing around the "shill" term so readily -- unless there's actual evidence, don't leap to unsupported conclusions). That said, in this case it seems pretty blatant that some entertainment industry "friends" from a DC lobbying group are now out trying to spread a very poorly argued concept that we somehow "need" six strikes. I'd suggest that the RIAA, MPAA and others might find better ways to spend their money.

Missed this when it first came out, but Bloomberg ran a fantastic report at the beginning of February, highlighting how piracy and fraud were key components to helping America catapult into the industrial revolution. In fact, there are reasonable arguments to be made that if the US was not a "pirate" nation, it would not have had the kind of success that it has had as the industrial world leader. We've discussed some of this in the past, and have highlighted how Eric Schiff's research showed how other countries (the Netherlands and Switzerland) industrialized by explicitly rejecting patents. The US didn't go that far, but it did involve quite frequent copying of the efforts of others and then improving on them, without fear of repercussions.

In its adolescent years, the U.S. was a hotbed of intellectual piracy and technology smuggling, particularly in the textile industry, acquiring both machines and skilled machinists in violation of British export and emigration laws. Only after it had become a mature industrial power did the country vigorously campaign for intellectual-property protection.

This is a point we've made many times as well. Patent and copyright system supporters frequently argue that stronger laws are needed to create incentives for creation and innovation. But, there are a ton of studies that show the actual pattern runs the other way. When you look at the pace of innovation before and after a change to patent laws, or if you do cross-country comparisons at the same time for similar types of economies, you quickly see that those with weaker laws show more innovation. The ratcheting up of patents is rarely about increasing incentives to innovate. Patents are put in place with the support of incumbents, knowing that it allows them to "exclude" competitors and upstarts. It is not a tool of innovation, but a tool to suppress disruptive innovation. Not having those laws (or having them widely ignored) leads to a situation in which people continually improve what's out there -- which is how the US economy took over the world during the industrial revolution.

The most candid mission statement in this regard was Alexander Hamilton’s “Report on Manufactures,” submitted to Congress in December 1791. “To procure all such machines as are known in any part of Europe can only require a proper provision and due pains,” Hamilton wrote. “The knowledge of several of the most important of them is already possessed. The preparation of them here is, in most cases, practicable on nearly equal terms.”

Notice that Hamilton wasn’t urging the development of indigenous inventions to compete with Europe but rather the direct procurement of European technologies through “proper provision and due pains” -- meaning, breaking the laws of other countries. As the report acknowledged, most manufacturing nations “prohibit, under severe penalties, the exportation of implements and machines, which they have either invented or improved.” At least part of the “Report on Manufactures” can therefore be read as a manifesto calling for state-sponsored theft and smuggling.

In fact, as the article notes, our own original Patent Act recognized this very fact, by refusing to cover foreign inventions.

Of course, the idea that loose patent and copryight laws can help nations develop economically is not a new idea. Over a decade ago, we were writing about how various officials were admitting that strong IP laws probably did more harm than good for developing nations. And, yet, the US continues to try to push its extreme maximalism for copyright and patent laws around the globe. Either they are doing this out of ignorance (a real possibility) or because they actually understand the truth, which is that other countries with IP laws like the ones in the US will see a slow down in their economic development.

Either way, those who insist that the US was founded on the principles of strong respect for "intellectual property" haven't paid that much attention to the actual history of American industrialization.