Tim, I generally enjoy the writing in your articles, but almost invariably, if I start reading a techdirt post and encounter a passage that reads like the author was trying way too hard to be witty, when I go back to check the by line it's "Tim Cushing" (of course, when it reads like a rant, it's Marcus Carab, but that's a different topic). You don't need to try so hard, your writing is good anyway, and these passages just make me want to stop reading. For reference, this time it was this section that grated:
"There's nothing like the possibility of a nice, fat settlement to lure musicians out of the woodwork (or wherever it is that musicians sequester themselves) and into the nearest lawyer's office (quite possibly decorated with expensive woodwork)."
Re: "only registered non-profits are supposed to use the donate button"
On top of that, the only other policy Regretsy MIGHT have violated prior to putting the button out was one stating that you must be pre-approved to use the donate button when acting "AS a charity" [capitalization mine]. Now, that can be read as either taking donations for something that looks like charity, which is vague enough, or it could be read as taking donations while portraying yourself to be a charity. Regretsy certainly wasn't doing the latter, and since that is a reasonable interpretation, Paypal should have been much more understanding. Paypal *might* require proof no misuse is happening, and they *might* require pre approval, but when you make the buttons so easy to use, you should really make this a LOT more clear than they did. That alone makes their "apology" really hollow, since it claims that their policies are in fact clear (half the apology is devoted to that point) when they really are not... For a more in depth analysis of the policies, and how hard they are to find, go here: http://bit.ly/udiNGK
So we should be talking about that, and those numbers. I'd love to see the data on that. Talking about profits from who knows exactly what sources of income is unhelpful, until we can see specifics. That would have been a great article to read, had it been written here, or at the referenced blogs.
No it's not. The fact that PLoS ONE can keep in business based on the fees garnered from the authors and authors' institutions already shows that research can be funded that way. The purpose of discussing the profits of the companies is meant to show that their profits alone could also allow open access (and thereby imply they are hampering this effort because they can, and not because it is a reasonable part of their particular business model). My point is that we're comparing apples to oranges with the profits talk, because front end fees are not their only source of revenue. Maybe it's most of it, but taking away even a very small percentage moves us much farther away from the 1350/1385 number that is being bandied about. Again, PLoS shows this can work, so we don't even need to worry about whether the big players can make it work, but the article implies they could just flip a switch and still operate at at least break-even, which has not been shown at all.
The logic here is flawed, at least in terms of taking the companies' profits and saying they there is enough from those to fully fund open access. The breakdown occurs when you consider that those same profits come from charging fees (subscription or otherwise) for access to the content it is proposed they could provide open access to. While it it is great that the PLoS ONE model is profitable, to act like the other companies' profits exist independently of access charges does not further the discussion.
Guys, guys, come on now... I think Righthaven deserves to be cut a little slack here. After all, they actually believed that their scheme to be assigned only the right to sue (despite laws to the contrary) would work. Now, either they are so dumb they deserve our pity, or they are so forward thinking and creative that we should hail them as visionaries. They're probably only a few years ahead of their time, come to think of it. Their actions were so prescient that in a few years when TPP allows such behavior generally, Righthaven should make sure to sue anyone else that follows their lead for copyright infringement!
I know several people that have learned japanese in order to be able to read manga that is unavailable in english. It seems like with a community as active and passionate as this, the threat of "piracy" could be turned into a huge win for manga producers. They could hold contests among fans for the best translation of a given work, and use this to hire translators that are passionate, or even hold contests on a regular basis. With the contests idea, if you have a contest for each release, and the prize is something like early access to new content, or the ability to weigh in on translations or plot arcs in the future, you engage your readers, and you avoid the costs of hiring translators (that may not even be as good as your passionate fans). This can be extended to subs/dubs of anime as well. It's unfortunate that when content producers are late to the game, they always miss the opportunities that an organic community may provide them; all they think is "My God... it's full of piracy!"
Re: Re: Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
I agree with your assessment regarding the court's opinion on self-replicating materials. I was attempting to say that I believe allowing a patent on such things, as opposed to the process that leads to the original creation (ie, the method of inserting DNA) is a troubling aspect of the patent system, for the reasons stated by many other commenters, and many people elsewhere (eg, if Monsanto finds a crop based on their seed, it doesn't matter if the wind blew it onto your farm, you are guilty of infringement). Under our current system, I understand Monsanto patenting the process for inserting genetic material, if it is a patent worthy process, but not over the continued use of the seed line (although potentially on an independent creation of a genetically identical line). If they had a patent on the process, it would encourage a distinctly different business model from seed selling, such as a business creating new seed lines for specific uses ("designer" seeds), where the compensation would not just be for the first generation of seeds, but for the design process itself. However, to give them a patent that allows them to sue for infringement over the results of a natural process grants them an overly broad right.
On your second point, my guess is that the representative would say that while producing a new crop of seeds may be a foreseeable result of planting, which is an allowed use following a "commodity" sale, the newly created crop of seeds should be destroyed in order to prevent damage due to the infringing act of creating a new product. While I disagree that this is what the license grants, partly due to its language, and partly due to other provisions restricting this behavior as it regards original purchasers, it is not an entirely meritless reading, especially in light of the current limits of the exhaustion doctrine (ie, the patent is only exhausted only as to the actually sold product).
Re: Re: Re: Re: Monsanto should have gotten nailed on sloppy drafting
The defendant was accused of patent infringement, as you stated. The reason I'm framing this as a contract issue is specifically due to the misjudgment of the court on the merits of the patent exhaustion defense. The terms of the deal specifically licensed the seeds "as feed, or for any other conceivable use," and that growing in order to harvest "second-generation" seeds is not only conceivable, but something other parts of the agreement specifically take into account for direct sales from Monsanto. I understand why the court is uncomfortable with extending the exhaustion beyond the current generation of seeds, and that the case law in this area does not allow for such an thing, but in this instance, the license is so broadly worded that this goes beyond the normal limits of exhaustion, specifically because of the language Monsanto chose to use in the agreement with respect to sales made to grain elevators. Granting a license for any use inherently includes production of new seeds when the product being licensed is self replicating. If Monsanto had intended not to allow that, then why have they "twice eschewed any reading of the Technology Agreement to prohibit unrestricted seed sales to grain elevators as a commodity"? A reasonable result of planting is the production of new seed, and restricting that new generation from being used, after claiming that sales are unrestricted is an absurd result.
Re: Re: Monsanto should have gotten nailed on sloppy drafting
Since you wrote in reply to me, I'm going to assume I am one of the "persons" you are referring to. If I am mistaken, persons are welcome to correct me. First, You might have payed attention to the fact that I quoted the opinion directly before mentioning that people should read the facts of the case. I didn't get the quote from techdirt, I pulled it out of the opinion after I read it. Second, defendant does not automatically equal wrongdoer, and plaintiff does not automatically equal victim, as your statement seems to imply (again, persons may correct me...). Based on the merits of the case - as I understand it from reading the opinion - Monsanto wrote a sloppy license, and now wants to take it back. That's not the farmer's fault. He signed the agreement that Monsanto referenced, and adhered to it for all seeds he obtained from them. If he found what appeared to have been (and should have been, see above) a loophole in the rights granted once the seeds are sold to grain elevators, more power to him. That's how contracts work. If they allow you to do something, you are allowed to do it, you don't get barred after the fact because the other party decided it put them in a difficult position. Maybe that grates on your idea of what is fair to the IP owner because of how large a hole that opens, but that's generally how voluntary agreements function, and Monsanto could have easily drafted it differently. I'm guessing they didn't do so because they would have sold less seed in the first place, due to farmers being more careful about allowing mixing to happen, and having an awareness that they would be unable to do anything with the "second-generation seeds."
Of what relevance is the patents' expiration date? A bad decision is a bad decision, and has lasting impact beyond the present dispute. Also, (again from the opinion, which I read) the farmer's actions go back several years, if you're trying to say this shouldn't matter to the parties, you're wrong there too.
In reality, you're probably just a troll, but I really couldn't help feeding you. I'm a sucker for being called "person."
Monsanto should have gotten nailed on sloppy drafting
Other problems aside, if we take the patent system as it currently exists, self-replicating technology and all, this decision still looks wrong to me. The decision itself says
"While farmers, like Bowman, may have the right to use commodity seeds as feed, or for any other conceivable use, they cannot “replicate” Monsanto's patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants."
How does "any other conceivable use" NOT include replication? If Monsanto didn't want to grant a wide open license for sales to grain elevators, they could have. The court doesn't have to rule that the new generation would not be normally infringing and thus "eviscerate" Monsanto's rights, they could have used Monsanto's agreement to show that Monsanto itself structured it's agreement so as to grant permission to "replicate" and thus brought this on itself.
However, I also second the comments of all former commenters, these are SEEDS, they grow without any intervention; they can get into my field without my knowledge. If Monsanto can rightly restrict what can be done with seeds after the fact (as in this decision), then replanting what I think are actually commodity seeds still leaves me open to an infringement claim, should Monsanto ever suspect their seeds are in my commodity crop. If grain elevators keep lists of who they sell to, and the percentage of Monsanto is really as high as 94%, this is deeply troubling to me.
I'm a little confused here. I get what some commenters are saying about what it looks like the government is trying to do, and I see that an attempt to nullify an author's will giving his works to the public domain may be a factor in creating the desire for this, but a will is not a contract, nor is a general CC license. If renunciation of rights is only null in contractual terms, then this seems to have the effect described above of Stan Lee keeping rights to the X-Men, not preventing authors from willing things to the public domain or their children. Then again, that short statement is probably just inaccurate generalized language...
I think the action was unwarranted, but let's say I'm a moron. Let's say I'm in a hurry. Let's say I see an article title about "New York Times Clean." I can see myself thinking, oh, they're putting out a "clean" version now? If I'm a naîve moron in a hurry, I might just want that. Oh! Maybe that's what they could have done with the 40 mil! A bookmarklet that edits out all of the unhappy news from every story! See, that's a potential product, so they clearly needed to defend their mark.
They could have funded research into how people today actually want to consume and interact with their content. What are people looking to get out of the NYT? Are they there for the hard hitting reporting, would they like to have more of a chance to discuss things with the authors of the articles, would they like to be able to vote for specific stories floating around the interwebs that they would like to see a specific member of the times staff write some commentary on? Do people wish there was an easier way for whistleblowers to submit their dirt to the NYT safely and anonymously? Maybe people want to tailored paper subscriptions, with their favorite writers appearing on the front page? They could have asked their readers ANYTHING, and done so for far less than $40 million dollars.
If you want one project they could have probably done for 40 mil, they could have created a curated database of source information of all of the research that has gone into every hard hitting NYT story (ever?) and charge for access to that (searchable, etc), along with a subscription for content added in the future, and as a bonus, use this DB internally to embed relevant source material on every story hosted on the site (at the very least going forward, and at best, retroactively). How would you like to see that? I know I would.