Techdirt. Stories filed under "copyrights"

Free 3D-Printable Kit To Connect Different Toy Construction Sets Released -- But Partially Blocked Due To Patents

Mike Masnick — Tue, 20 Mar 2012 07:06:46 PDT

I've been hearing about this project for a few months now, and I'm excited to see that it's finally been released. F.A.T. Lab and Sy-Lab have officially released their Free Universal Construction Kit, a set of 3D printer instructions for creating nearly 80 awesome "adapter" bricks that let you connect ten (sort of) popular children's construction playsets:

Included are connectors between the following sets: Lego, Duplo, Fischertechnik, Gears! Gears! Gears!, K’Nex, Krinkles (Bristle Blocks), Lincoln Logs, Tinkertoys, Zome, and Zoob. There's also a giant universal adapter block. I'll admit I'm a bit disappointed that Megabloks didn't make the cut, as my son tends to go back and forth between those and Duplos. If you want them, they're available at Thingverse, though you'll obviously need a 3D printer to actually do anything with them. Here are some of the photos they've put up of the kit in action:

The general idea is really cool. Kids don't care if Lego and Tinkertoys come from the same company. They want them to work together nicely. That's part of the fun of tinkering. But, of course, the toy companies want to "control" the market and pretend that only their toys exist. Acknowledging anyone else's toys is seen as a mistake -- even though it actually adds value to the toys by letting you do more with them. In the past we've seen Lego, in particular, be particularly aggressive in trying to lock out competitors.

Of course, that raises the big question: what about intellectual property law with this offering? The non-commercial nature of it likely protects them against trademark issues, though it does seem silly that actually offering such useful connector blocks for sale might put you in legal hot water. Either way, I know the guys who put this together spent a ridiculous amount of time exploring the different legal issues involved here, and have put up a detailed discussion on them -- with a clear recognition that even after being as careful as possible to not infringe on anyone's rights, they still have to note:

Some may express concern that the Free Universal Construction Kit infringes such corporate prerogatives as copyright, design right, trade dress, trademarks or patents of the supported toy systems. We encourage those eager to enforce these rights to please think of the children — and we assert that the home printing of the Free Universal Construction Kit constitutes protected fair use.

Furthermore, they have a pretty full discussion on how the use of IP here is not about protecting rights at all, but about attempting to gain market dominance:

Today’s manufacturers have little or no intrinsic motivation to make their products compatible with anyone else’s. Indeed—despite obvious benefits to users everywhere—the implementation of cross-brand interoperability can be nearly impossible, given the tangled restrictions of patents, design rights, and trademarks involved in doing so. So we stepped up. The Free Universal Construction Kit is the VLC of children’s playsets.

As we can see from the example above, interoperability is a question of power and market dominance. Most market leaders regard interoperability as an anti-competitive nuisance, a regulatory check on their ambition, or a concession to the whining of lesser players. Quite simply, interoperability is the request of the disenfranchised. And which end-user, in so many ways, is less enfranchised than a preliterate child?

The simple fact is that no toy company would ever make the Free Universal Construction Kit. Instead, each construction toy wants (and indeed, pretends) to be your only playset. Within this worldview, the other manufacturers’ construction sets are just so many elephants in the room, competing for your attention on the shelves of Toys-R-Us. No longer. The Free Universal Construction Kit presents what no manufacturer could: a remedy providing extensible, post-facto syntactic interoperability for construction toys. Let the fun begin!

Of course, there's still the issue of patents... and there the folks behind this project also did something interesting. In that list of supported toys are two -- Zoob and Zome -- that are technically still under patent protection. To deal with those two, the kit actually does not include connectors to either of those toys. Instead, both have a pending date, to be released on the day those patents expire. In other words, progress and the ability to interoperate with those toys must wait until the monopolies expire. Progress is being hindered, not promoted here.

We've discussed in the past how 3D printing is an upcoming legal battle, as many of the issues that previously arose solely the digital realm will be crossing over into the physical. We've also noted how The Pirate Bay has already stepped up with plans to offer a place to share 3D printable plans -- and, indeed, the folks behind this project note that it will soon be up on that site, when it's ready.

The more you look at this, the more it makes you wonder what else simply isn't being done today due to over-aggressive desire for control via IP laws, rather than recognition that making a product more valuable and useful is actually a good thing.

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Really Bad Idea: Make ISPs Liable For Cybercrime Efforts

Mike Masnick — Mon, 1 Aug 2011 13:11:00 PDT

Let me start off this post by noting that, while I don't know Noah Schachtman personally (other than a few emails back and forth many years ago), I've always liked his work writing for Wired and other publications. However, I'm surprised to see him advocating the strong use of third party liability as a tool to deal with cybercrime, as a part of a paper for the Brookings Institute. The idea is that, when talking about spammers & scammers online, there are, perhaps, a small number of ISPs who tend to do business with these guys, and Schachtman believes that by making those ISPs liable, it would pressure them into cutting off the bad clients.

Schachtman has numerous caveats and is pretty specific in his plan that it only apply to a specific list put out by a trusted independent third party, that the methodology for being on the list is clear and that an appeals process also be explicit. On top of that, he says that it should be limited to "universally recognized crimes, like theft, fraud, and criminal trespass" and is clear in saying that it "wouldn’t work for politically inflammatory speech or copyright infringement; they’re too open to abuse and overly broad interpretation."

Also, in reading the report, it's clear that this isn't just something he came up with overnight, or some random blogger or reporter dashing off a column on some fragment of a thought they had an hour before deadline. He's put a lot of thought and research into this. But I still think the idea is dreadful and shortsighted. It wouldn't solve the problem it seeks to deal with, at all, and (even worse) it would open up all sorts of collateral damage or unintended consequences.

First off, it wouldn't solve the problem it's trying to solve. We've seen this time and time again with attempts to shut down any kind of "rogue" behavior online by going after intermediaries. The bad players just figure out some other place to go, and they often go further underground in ways that makes it tougher to find or track them and their activities. Even Schachtman admits that many would likely jump to ISPs elsewhere. So, if it's not actually stopping the behavior, then what's the value?

Second, while Schachtman is clear that this shouldn't be used for those other things, chipping away at third party liability protections in any arena is quite dangerous, because it's not hard to see lobbyists using that to push for such rules to be expanded to cover their pet area. Anyone who thinks that the RIAA and MPAA wouldn't pounce on this and work hard to add copyright infringement to the list simply hasn't been paying attention. What Schachtman describes in terms of the ability to sue an ISP for third party actions has been the legacy entertainment industry's wet dream for over a decade. Anyone who thinks that politicians would distinguish the types of crimes that Schachtman focuses on from garden variety claims of copyright infringement is living in a dream world.

And, honestly, I'm still at a loss as to why this is actually needed. It seems like there remain much more effective ways to deal with issues like this that don't involve giving up basic concepts of properly applying liability to the actual party responsible. The first is actually targeting those responsible for the crimes. If they're using known ISPs, then it seems like there is a record trail that can be traced back to go after those actually breaking the law to try to put them out of business. Second, if the concern (as it appears) is that some US ISPs are doing this and that's a shame, then deal with that publicly, by more publicly shaming ISPs who are popular among criminals. Use public pressure to get them to (a) either help law enforcement or (b) to enforce reasonable terms of service. Trying to make them liable as a third party will make life difficult for them, but not the actual scammers.

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Where ACTA Disagrees With US Law

Mike Masnick — Tue, 12 Oct 2010 05:02:28 PDT

With Senator Wyden asking the Congressional Research Service to investigate how ACTA might conflict with US law (or restrict the ability to reform the law), KEI has put together a list of specific areas where ACTA's text is inconsistent with US law. Remember, negotiators have repeatedly insisted that nothing in ACTA will (or even can) change US law. ACTA defenders have stressed the point, repeatedly, that nothing in ACTA can legally change US law. But what no one explains is what happens when the law and the agreement are in disagreement. That's because no one wants to deal with the inevitable: when such situations come about, US lobbyists will scream about how we're "not meeting our international obligations," and will put plenty of pressure on the US until we get into "compliance." So, I'm wondering if those who insist ACTA won't change US laws will agree now to speak out against anyone who cites ACTA down the road in asking for US law to change?

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SCO Says Jury Didn't Really Mean What It Said... And Judge Should Order Novell To Hand SCO Unix Copyrights

Mike Masnick — Fri, 30 Apr 2010 13:37:10 PDT

SCO really is quite the zombie of a company, isn't it? It just never dies. It's been a month since getting smacked down yet again and having a jury declare that Novell still owns the Unix copyrights, and they were never transferred to SCO (after a judge had already said the same thing). And yet, as Slashdot alerts us, SCO has now told the judge he should order Novell to hand over the copyrights anyway. Talk about getting desperate. When will SCO finally be put out of its misery?

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Ronald J. Riley Sued By The Lawyer Who Copyrights Cease-And-Desist Letters

Mike Masnick — Mon, 8 Sep 2008 10:14:00 PDT

If you read the comments on this site regularly -- especially concerning posts having to do with patents or the patent system -- you're probably quite familiar with a guy named Ronald J. Riley. He's quite the character. He's also quite the fan of the existing patent system. He's started a bunch of different "organizations" supposedly to protect the patent system, though there are plenty of accusations that Riley's main focus in life is getting unsuspecting inventors to give him money. Someone has even created a site cataloguing Riley's ridiculous statements. It's not clear what Riley has actually done in his life, but he has been effective over the years in using his made up organizations to give himself an air of legitimacy, which often gets him quoted in the press on patent issues, despite showing a consistently poor understanding of the process of innovation, technology and the patent system itself (for example, he believes the purpose is only to protect small inventors, not to promote overall innovation -- and he believes that anyone accused of patent infringement clearly "stole" the idea, even if they came up with it independently).

Riley also has a history of being... well... a bit abrasive in comments on various sites all across the internet, including here at Techdirt. He enjoys personally insulting me or lying about me and does so on a regular basis (such as here and here for just a couple of examples). Most hilariously, he continually accuses me of somehow being on the payroll of companies who support the patent reform bill that keeps showing up in Congress every year, despite the fact I have clearly stated that I think the bill will make the situation worse rather than better. Riley is also famous for taking credit every time this same patent reform bill fails to move through Congress, ignoring that it's actually the powerful pharmaceutical industry lobbyists that kill it, not Riley. In the three plus years that he's been commenting here, Riley has never once had anything other than an insult or a lie to say about me.

Given all that, I can't believe that I'm actually about to defend him.

A few people have sent in the news that Ronald J. Riley is being sued by the Dozier Internet Law Firm. From Dozier's press release, the actual charges are not at all clear. The only thing listed in the press release is that "Riley's misconduct includes his attacking bloggers and blog and forum moderators with threats of getting IP addresses of anonymous bloggers and then tracking them down." Given the way Riley acts around here, those accusations don't seem particularly surprising -- but it's not clear what's illegal about them. Perhaps there is more to this lawsuit, and if so, Dozier should be much more forthcoming about it, because based on what's been described, it certainly seems like Dozier is just suing Riley because Riley is a pest. And while Riley may be a pest, may be insulting and may even be misleading, it's hard to see what's illegal about his activities. Despite the fact that he regularly insults me and lies about me, I have no problem with Riley posting his ridiculous messages -- as it just encourages others to show how clueless Riley is.

And, of course, Dozier is something of a piece of work himself. You may recall his name from when he tried to send an online review site a cease-and-desist letter that he claimed they could not post on their own site because it was covered by copyright. He later announced that courts had said cease-and-desist letter copyrights were acceptable, even though that turned out to be quite an exaggeration of what had actually happened.

So, here we have a lawyer who has repeatedly tried to silence critics with questionable use of copyright law, suing a patent system defender who throws around insults and lies like they're going out of fashion. These two were made for each other, so it's really difficult to root for one over the other -- but, based on the facts explained so far, it's difficult to see what Riley has done wrong, other than be an annoying jerk. And, even if that's annoying, it's still not illegal.

Update: In the comments, someone points out that the entire lawsuit filing is available on Dozier's website. Amusingly, it actually quotes one of RJR's comments here on Techdirt (though, the lawsuit doesn't mention where it's from). Basically, I stand by what I said originally. While Dozier does a good job outlining RJR's history and pattern of lies and mistruths, his ability to either make up organizations or surreptitiously recreate defunct organizations that had a good reputation, there's little in there that appears to be illegal. The only actual charges seem to be from highly questionable claims that RJR somehow infringes on Dozier's trademarks.

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Is The Copyright Royalty Board Unconstitutional?

Mike Masnick — Fri, 16 May 2008 14:44:17 PDT

Last month, we wrote about a Constitutional challenge to the patent appeals board. It was based on the theory that the Constitution clearly says that certain appointments can only be made by the President, the courts or the heads of a department. A legal change a few years back let the USPTO director appoint judges to the patent appeals board -- but the Patent Office director is not the head of a department. He reports to the Commerce Secretary who should be nominating the judges -- thus suggesting that all of the appointments over the last few years have been unconstitutional.

Of course, it didn't take long for folks to recognize that the same question may apply well beyond the patent appeals board. In fact, there's a court case challenging whether the current Copyright Royalty Board is constitutional as well. While the article doesn't go into details, it sounds like it's an identical issue. The CRB members are appointed by the Librarian of Congress rather than the President or the head of a department. This particular lawsuit has been filed by an organization that was hoping to compete with SoundExchange for collecting and distributing royalties. The CRB rejected the request. Given how many problems SoundExchange has had in carrying out its charter, it would seem like competition is a pretty good idea. However, rather than fighting that decision specifically, the company recognizes this same constitutional question. Funny how the boards involved in both copyrights and patents may be unconstitutional for the same basic reason.

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What Kind Of Progress Are We Promoting?

Mike Masnick — Thu, 13 Mar 2008 12:44:00 PDT

Continuing my series of posts exploring some of the basics of "intellectual property," I wanted to discuss that key clause in the Constitution that I brought up in the first post in the series:

"The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Unfortunately, many have interpreted this clause to mean that any such monopoly granted must "promote the progress of Science and useful Arts." However, a much more reasonable reading of this clause -- especially given Jefferson and Madison's clearly stated concerns about it as they argued over whether or not to include it -- is that these monopoly grants (whether copyright or patent) should only be considered Constitutional if they actually "promote the progress." What Madison and Jefferson saw (which is all too often ignored these days) is that granting a monopoly has both negative impacts and positive impacts. If the positive impacts outweigh the negative, then you can say that the granted monopolies promote the progress. If it's the other way around, however....

Now there are some who insist that there are no negative impacts of such monopolies, but that's easily shown to be false. Clearly, by limiting the ability of everyone else to make use of the ideas or content, that's a loss. The argument in favor of these monopolies is straightforward: that without the monopoly, there is little (or perhaps no) incentive for the creator to create the content or bring a product to market in the first place. Even for those who recognize the downsides to patents and copyright, many will argue that this particular benefit vastly outweighs the negatives. However, it would appear to be a more open question than many believe.

There are different parts to break out in examining the question of whether or not a patent or copyright actually "promotes the progress." First, it's weighing the negative impacts. To do that, you start out by determining the deadweight loss from the monopoly pricing that is enforced via the patent or copyright. This would be the higher price that can be charged for the good, thanks to the exclusivity granted by the government. The second, much more difficult to calculate, concept to figure out is whether (and to what degree) that exclusivity also slows down additional later improvements, which would, clearly, go against the concept of promoting the progress. This point is often ignored in discussions about patents, due to the fact that many look at an invention in a "static" world -- where the invention (or new content) is the end of production. However, in a dynamic world, innovation is actually an ongoing process of experimenting and changing and tinkering. If each stage of that process is limited and blocked, then clearly it can slow down "the progress" by quite a bit. Third is to look at other costs, such as diverted resources to legal fees.

Of course, it's important to look at the benefits side of the equation as well, and weigh them against the negatives. On that side, the question should be whether or not the content or invention would be created at all in the absence of the protection. To answer that question, what you really need to look at is whether or not there are alternative business models that would create an acceptable likelihood of return to still have the product created. If such models exist, then it would suggest that the "benefit" of the monopoly is somewhat limited. However, if such models do not exist, then you need to account for the loss associated with the invention or content never being created, including the further impacts down the line (if there were no steam engine, would there be no steamboats etc...). You can also look at whether or not such inventions or content would take longer to produce in the absence of protection, and account for how that might slow down the pace of innovation. When it comes to patents, there are also some who claim that another important benefit is "disclosure." That is, a part of the bargain for getting the patent is that you need to disclose the details of the concept so that others can learn from it, and that disclosure should, in theory, create further innovations.

So what does the evidence show? I had been working out a list of all the research to include in this post when I saw that James Bessen and Michael J. Meurer had written up part of a summary of their new book, Patent Failures, which we had mentioned recently. The summary goes through much of the peer reviewed research that I had been planning to mention on the impact (good and bad) of patents, and reveals a rather consistent finding: there is almost no evidence that patents help promote the progress. Specifically:

"it is hard to find evidence suggesting patents are a major factor spurring R&D investment, that patents contribute to economic growth, or even that the patent system is a source of great wealth to important inventors and innovators."

What they find, instead, is that whenever there's a correlation between increased research and development and patents, it's a reverse causality. That is, greater patent protection trails greater research and development. Greater patent protection, however, does not increase research and development. What that clearly suggests is that stronger patent systems are put in place after the research and development is done, in order to protect those who did the work against competition, not to spur further innovation. That may make the earlier inventors happy (it lets them rest on their laurels rather than continue to innovate), but it goes against the very purpose of the patent system, and results in an overall societal loss. This certainly isn't a new finding, and much of the research discussed by Bessen and Meurer can also be found in David Levine and Michele Boldrin's book Against Intellectual Monopoly.

This isn't just the result of one study, either, but a number of different studies comparing a number of different things, both over different time periods, across different countries, different types of products and many other factors. And almost all of the research points in the same direction. There is little evidence that patents actually do what the Constitution says they must to remain Constitutional. There is, potentially, one exception. Bessen and Meurer do note that there is some evidence that patents do have an impact on R&D in the pharmaceutical business (on this Levine and Boldrin disagree with Bessen and Meurer). Indeed, there are some people who claim that a situation like pharmaceuticals is the one case of market failure where patents could make sense, since there's a high capital expenditure requirement on the front end, and the barrier to copying is exceptionally low on the output. This post is long enough already, but there are reasons to even doubt that patents are necessary in pharmaceuticals as well (and actually many reasons to believe that they actively harm the market for health care). However, we'll have to cover that another time.

In the meantime, the next post in the series will pick up on exactly why the negatives associated with patents seem to almost always outweigh the positives.

Links to other posts in the series:

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Hollywood Is Hardly An Innocent Victim In Trade Disputes

Timothy Lee — Wed, 2 Jan 2008 08:35:00 PST

My Cato colleague Sallie James describes the ongoing standoff between the US and the rest of the world at the World Trade Organization over gambling. When Congress banned online gambling, tiny Antigua filed a complaint alleging that the actions violated WTO rules. Antigua won, but the United States has so far bullied them out of taking advantage of their victory. The US has threatened to retaliate against Antigua if the latter begins targeting US copyrights as authorized in the trade ruling. James says that the United States is in the process of negotiating alternative compensation, including increased access to other American services markets. If that deal falls through, she warns, Hollywood might find itself "footing the bill" for the US government's ill-conceived gambling ban.

I certainly agree with her that the gambling ban was a bad idea, but I'm not sure it makes sense to paint Hollywood as an innocent victim here. After all, Hollywood has been pushing for decades to link trade policy and copyright law, going so far as to support free-trade agreements that include terms micro-managing other countries' copyright policies and requiring them to enact laws like the DMCA as a condition of access to American markets. Free traders rightly object when special interests try to use free trade agreements as a way to coerce countries into enacting their preferred labor and environmental policies. We should be equally incensed when Hollywood lobbies for the use of trade agreements to coerce countries into enacting their preferred copyright policies. So there's a certain amount of poetic justice in the fact that Hollywood has found its copyrights in the crosshairs of a trade dispute. James also correctly notes that retaliatory tarriffs are an insane way to impose damages on the losing country in a WTO dispute because tariffs hurt consumers in the "winning" country at the same time it hurts producers in the "losing" country. In contrast, if damages are imposed by targeting copyright law, consumers in the winning country will actually be made better off by lower prices for the copyrighted products in question. So while it would be best of Congress repealed its idiotic gambling ban, I'm not going too upset if Hollywood's attempts to link copyright law to trade policy come back to bite them.

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Antigua Seriously Pushing For WTO Approval To Distribute Free Music And Movies

Mike Masnick — Thu, 23 Aug 2007 23:44:53 PDT

Since 2003, we've been following the saga of Antigua's fight against the US in the World Trade Organization. Basically, Antigua argued that the US's ban on online gambling violated the free trade agreement the two countries had signed -- as it blocked online gambling sites based in Antigua (of which there are a bunch). Since then, the case has been fun to watch if only for how the US has responded to it. The WTO ruled in favor of Antigua at which point the US basically ignored the WTO, despite the WTO occasionally making angry noises. Then, there was the time that the US went so far as to declare that the WTO had reversed that original ruling on appeal... but the details showed that the US was making up that claim and the WTO was still supporting Antigua. Earlier this year, after the WTO started stomping its feet again, the US responded by saying it was simply (unilaterally) going to change its free trade agreement with Antigua, so that online gambling wasn't included. Obviously, Antigua finds that solution quite troublesome.

Back in early 2006, however, a few people began buzzing about an idea that Antigua could use to force the US to pay attention: become an WTO-backed ignorer of US copyright law. Since the US knew it could effectively ignore Antigua over online gambling, the idea was that Antigua should simply say that if the US won't support its free trade agreement, then it would start ignoring US copyright laws, and would then (with WTO-backing, mind you) allow modern versions of all sorts of copyright-violating services to prosper. We didn't think that Antigua would seriously go in this direction, but as a new NY Times article makes clear it's exactly what Antigua is now pushing for. Of course, the real hope is that in doing so, the Big Copyright players will force the US government to back down on the gambling issue. However, it might be a lot more interesting to see what would happen if Antigua really did become the protected legal home of more modern versions of (the old) Napster, my.mp3.com, the Pirate Bay, Allofmp3.com and others. Of course, as reader OKVol points out to us, the real irony here is that in potentially ignoring copyright monopolies, Antigua may be getting closer to real free trade than in living up to the terms of the free trade agreement between the two countries.

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