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Rep. Lofgren: A Real Antitrust Issue That Needs Scrutiny Is Copyright

from the about-time... dept

We talk here quite frequently about the fact that copyright (and patents) are gov’t granted monopolies, and should be watched carefully because of that. Historically, economically speaking, gov’t granted monopolies are bad for innovation and the economy. However, over the last few decades, there’s been a big push by those who benefit from monopoly rents to try to redefine them as “intellectual property” rather than the more accurate description as a gov’t granted monopoly. For the most part, our elected officials have bought into that language shift. Could that finally be changing back to a recognition that copyrights are monopolies and deserve the same scrutiny as any other economic monopoly? Today we saw a small move in that direction with a Congressional Rep admitting that copyrights are a monopoly and deserve scrutiny from the Judicial Dept. for that very reason.

I’m at the always-excellent State of the Net West event today, and the second discussion is about Antitrust in the Internet Era, and the discussion was introduced and led by Congresswoman Zoe Lofgren, who had a number of surprising (in a good way) remarks. On traditional antitrust issues, she’s worried that antitrust actions aren’t being used to stop anti-competitive behavior but for anti-competitive purposes. She notes that many in Congress don’t really understand the purpose and reasoning behind antitrust and assume that dominance or marketshare automatically means there’s an antitrust problem. And, of course, there is the problem of regulatory capture. So, she notes that you’ll see elected officials basically read out talking points on antitrust issues from competitors — rather than actually looking at whether or not there’s real harm to the market. So, she suggests that the framework for antitrust issues should be looking at innovation and whether or not that’s happening or is being hindered. Of course, the cynical out there (you know who you are) might suggest that these sound sorta like Google’s talking points… Either way, she says she’s trying to set up a seminar for the Judiciary Committee about antitrust, to get them better educated about the real issues related to antitrust, and that seems like a good thing.

However, much more interesting and unexpected were her brief comments at the end of her remarks, where she took on copyright, noting that it is a gov’t granted monopoly that deserves antitrust scrutiny. She said, “Let’s face it, copyright extension these days is ‘limited’ to the life of Mickey Mouse.” And yes, there was sarcasm in her voice over the word “limited.” The guy sitting next to me who works at Disney started shuffling uncomfortably…. Lofgren went on to say that copyright is being used to put up barriers to competition and innovation and is an issue that antitrust regulators really should be scrutinizing. This is really surprising, but really good to hear. Lofgren has been one of the (very) few elected officials who actually does “get” copyright issues, but this is the first time I’ve heard any elected official recognize that copyright is a monopoly/antitrust issue that deserves serious scrutiny for the way it’s so frequently abused for anticompetitive purposes.

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Comments on “Rep. Lofgren: A Real Antitrust Issue That Needs Scrutiny Is Copyright”

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35 Comments
Bubba Gump (profile) says:

Re: Re:

You mean, the internet ISN’T a series of tubes???
Oh, I know! You mean it isn’t JUST a series of tubes. Aaaaaah. AND, the tubes have stuff inside them (yes, stuff is the technical word). Then, of course, there are boxes connecting different tubes together.

I’m still trying to figure out how they make the invisible tube that gets the intarweb to my laptop.

Anonymous Coward says:

Re: Re:

“get” the issues? No, more like “agrees with Mike”. Elected officials have also refereed to the internet as a series of tubes. Does that mean they “get” the internet?

Must be angry dude on some uppers. I am not even sure what kind of hyper fallacy this is, seeing how there is confusion between a single person with another single person, a single person with a group of people and basically complete failure to understand the post.

Rob R. (profile) says:

For accuracy, why don’t you guys rename this site “CopyrightDirt” or “IPDirt”. I was hoping there would really be some technology related content posted from time to time, but alas that does not seem to happen. Just because it’s about music that may have a digital version doesn’t mean that should be the focus of a site called TechDirt. Just my opinion, so if you want to flame me, stifle it.

If there turns out to be some actual tech-related things posted I’ll be happy. Otherwise I’ll just delete this shortcut and move on. I’m hoping to see some good techstuff soon.

Anonymous Coward says:

Re: Re:

If you would read the “About techdirt” section you would find that you are misjudging the site based on your preconceived notions.

….Started in 1997 by Floor64 founder Mike Masnick and then growing into a group blogging effort, the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.

Troll Buster says:

Re: Re:

I’ll translate that for the rest:

Blah! Blah! Blah! Blah! Blah! Blah! Blah! Blah! I’m a Troll!!! Blah! Blah! Blah! Blah! Blah! I’m a Troll!

Go back to the hole troll. Copyright and patents are what is LIMITING technology. And if you don’t see articles about technology on the site, you are either blind or stupid, or both.

voxmanz (profile) says:

Yes, the copyright issue has been abused by certain entities. I agree with many of these ideas. But if I write a song, I’m creating some kind of anti-innovation environment to say it’s my song? Seriously? I think something can be shared and built upon without taking away the rights of an artist to say that the song they wrote is their song which they wrote. I’m concerned with
this seemingly single-minded agenda to get rid of copyrights.
I’m wary anytime someone takes a single-minded view on issues
that are complex and multivalent. If you’re single-minded,
you’ll miss the truth and hurt people in the process.
I’m open to how this all pans out. I just want to make
sure people are respected in their artistic vocation (as most people
are in other vocations).

I see Techdirt question certain things that have been accepted,
perhaps unquestionably, in the past, yet also accepting unquestioningly
certain things that could be questioned. And the picking and choosing
seems to serve an agenda (I said “seems” I’m not saying you guys are bad people, and maybe the agenda is well-meaning). That concerns me. For example, I could
easily challenge the accepted view that “property” or “physical goods”
can belong to someone and have value, whereas intangibles are treated
differently. If you talk to most Native Americans (with the traditional
Native American view) they believe the idea of owning property,
or “part of the land” is preposterous and nonsensical. Yet the
assumption that something has value monetarily just because it’s
a physical good is just that – an assumption. It’s a created idea
that can be accepted or discarded, just like the idea of copyrights.
Yet you guys assume it’s valid (judging from past remarks), because it serves your argument.
If everything was free, I’d be totally fine with getting rid of
copyrights, etc. But we don’t’ live in that society, and why
should artists be asked to make a sacrifice before everyone
else (giving up a certain right – and whatever you say, it
is a sacrifice and people would suffer. As much as you guys
like to use Trent Reznor as an example, he said in his blog,
concerning free downloading, “This sucks for artists.” I don’t
see you quoting him on that much.)?

Call it Socialism
or whatever you want, but if you pay me enough to take care
of my living costs and to fund my future projects, then
sure, everyone can have my songs and enjoy them, remix,
whatever for free. But you guys are pushing the whole marketplace
driven ideology (along with some kind of utopian-seeming
information should be free idea – which R.U. Sirius,
one of the first proponents of that, now says he was
WRONG about) while trying to take away one of the things
that helps artists to protect their market commodities (yes,
you say that the Constitution wasn’t meant to protect artists,
then we should amend it so it does).

I see some clear contradictions. And when that
happens, it’s partly because the issue is complex,
and partly because everything is being driven by
an agenda, or ideology. Danger Will Robinson!!!

Cheers,
Robert

C.T. says:

Copyright as a Whole or Copyright on the Margins

Mike,

You do a grave disservice to your argument when you attempt to indict the entire concept of copyrights rather than focus on the apparent abuses therein.

You write:
Could that finally be changing back to a recognition that copyrights are monopolies and deserve the same scrutiny as any other economic monopoly?

That monopolies are “illegal” is a consequence of a Congressional statute. But for those statutes, monopolies would be perfectly legitimate. In other words, there is nothing inherently unconstitutional about a monopoly. Further demonstration of this fact is that Congress may allow monopolies in certain industries, indeed they do. Take for instance the NCAA, MLB, and the NFL.

The suggestion that copyright as a *concept* ought be subject to antitrust analysis is, therefore, completely asinine. This is so because the Constitution specifically grants Congress the power to institute a system of copyrights, and they have utilized that power to implement the Copyright Act.

None of that is to say that certain private entities haven’t utilized copyright in a way that has created an antitrust problem. Indeed, that may very well be true. However, to infer from this that the concept of copyright is itself an antitrust violation is specious and uninformed.

duane (profile) says:

Re: Copyright as a Whole or Copyright on the Margins

What the hell? Are you reading as you type? The government has given itself the power to grant the monopoly. Mike and many others are suggesting that maybe the government might want to look at that. Maybe copyrights don’t need to be such strong monopolies. Maybe they don’t need to last as long. Maybe if our Congress people substituted the word “monopoly” for the word “copyright” they might understand why letting someone take a creative work out of play for ever-increasing periods of time is not the best idea. It’s not like “analysis” means shoot someone in the face. Analysis is simply giving something a long hard look. That’s a good thing and something no one seems to have done in a while.

C.T. says:

Copyright as a Whole or Copyright on the Margins

Mike,

You do a grave disservice to your argument when you attempt to indict the entire concept of copyrights rather than focus on the apparent abuses therein.

You write:
Could that finally be changing back to a recognition that copyrights are monopolies and deserve the same scrutiny as any other economic monopoly?

That monopolies are “illegal” is a consequence of a Congressional statute. But for those statutes, monopolies would be perfectly legitimate. In other words, there is nothing inherently unconstitutional about a monopoly. Further demonstration of this fact is that Congress may allow monopolies in certain industries, indeed they do. Take for instance the NCAA, MLB, and the NFL.

The suggestion that copyright as a *concept* ought be subject to antitrust analysis is, therefore, completely asinine. This is so because the Constitution specifically grants Congress the power to institute a system of copyrights, and they have utilized that power to implement the Copyright Act.

None of that is to say that certain private entities haven’t utilized copyright in a way that has created an antitrust problem. Indeed, that may very well be true. However, to infer from this that the concept of copyright is itself an antitrust violation is specious and uninformed.

The Infamous Joe (profile) says:

Re: Copyright as a Whole or Copyright on the Margins

I think you may not understand the word scrutiny.

No where did I read that copyright protections should be abolished, only that they should be monitored like any other goverment sanctioned monopoly.

Also, you seem to contradict yourself here:

The suggestion that copyright as a *concept* ought be subject to antitrust analysis is, therefore, completely asinine.

None of that is to say that certain private entities haven’t utilized copyright in a way that has created an antitrust problem.

It stands to reason that if “certain private entities” have used copyright protection in an antitrust fashion then copyrght should be subject to antitrust analysis.

Personally, I’m amazed it hasn’t been looked into before. You have the Labels who buy up all the rights to all these songs, but their prices never compete. Ever. If they did, their prices would go down. In fact, when iTunes opened up tiered pricing, most of the popular songs jumped to $1.29.. regardless of which major label held the rights to the songs. Wouldn’t economics say that one savvy businessman would leave his prices alone to draw more customers to buy his product? CD prices have only started to drop to make buying them at all more attractive, not competition between major Labels. Isn’t price fixing illegal?

Mockingbird (profile) says:

Re: Copyright as a Whole or Copyright on the Margins

You write

That monopolies are “illegal” is a consequence of a Congressional statute. But for those statutes, monopolies would be perfectly legitimate. In other words, there is nothing inherently unconstitutional about a monopoly

Maybe not. Freedom from unreasonable monopolies was considered an inherent right by some thinkers (including Thomas Jefferson) at the time of the framing of the constitution, so it is at least arguably latent in the 9th amendment. (Argument here:(link.))

A very strict reading of the constitution would hold that copyrights and patents are the only monopolies Congress is authorized to grant. This seems to have been James Madison’s view. A broader view has however prevailed of late, which holds that Congress may use its commerce-clause power to grant limited sui-generis intellectual monopolies, as in boat-hulls.

Anonymous Coward says:

Re: Re: Copyright as a Whole or Copyright on the Margins

A very strict reading of the constitutions would restrict guns to “militias” or whatever. But the constitution isn’t just the words written but hundreds of years of court rulings, judgements, and guidance from the various people who have occupied the top 9 chairs of the US courts. It is the reason why constitutional arguments in these areas are very, very hard to frame, as there are so many judgements that shape, shave, and read meaning into the words as writter.

reticulator (profile) says:

monopolies are not illegal

Please! A monopoly is not illegal in and of itself. What is illegal is abuse of monopoly power. Sometimes the consequence of abuse of monopoly power is the breakup of the monopoly. Sometimes, as with IBM in the early 60’s, it’s careful oversight to prevent recurrence.

I don’t believe Mike has ever said that copyright itself should be abolished. He often says that abuses of copyright should be curbed.

Fred McTaker (profile) says:

A California politician who is sane about Copyright?!

“Let’s face it, copyright extension these days is ‘limited’ to the life of Mickey Mouse.”

This might be the first sane quote about Copyright that I’ve heard from ANY California politician, EVER. The Congress people in my district have permanent brown noses from tongue-inspecting Disney’s and all the other Hollywood Studio’s crevices, in confusion about where all their campaign donations are produced from.

Sheogorath (profile) says:

Re: A California politician who is sane about Copyright?!

Fred McTaker said: “The Congress people in my district have permanent brown noses from tongue-inspecting Disney’s and all the other Hollywood Studio’s crevices, in confusion about where all their campaign donations are produced from.”
From the public’s pockets to Congress’ by way of the MAFIAA’s, hence the confusion. Congress thinks the money comes directly from the industry. That’s why we should stop buying mainstream content and not get it for free either, so campaign funding gets reduced and the industry can’t push for laws to shut down the internet by claiming that P2P ‘piracy’ is the reason for their reduced income.

staff1 (profile) says:

stop shilling!!!

“We talk here quite frequently about the fact that copyright (and patents) are gov’t granted monopolies, and should be watched carefully because of that. Historically, economically speaking, gov’t granted monopolies are bad for innovation and the economy.”

Correction. They are limited monopolies granted for a short time to encourage inventors and authors. You continue to twist reality to suit your underLIEing motives. How much do the patent thieves pay you to write this trash?

dorp says:

Re: stop shilling!!!

They are limited monopolies granted for a short time to encourage inventors and authors. You continue to twist reality to suit your underLIEing motives.

That’s the stated purpose, you are LIEght on details proving that’s what happens in real life. How much do the patent trolls pay you to post asinine comments?

PrometheeFeu (profile) says:

I think it is clear that there is at least one area where IP seriously hinders innovation and thereby runs counter to its stated purpose. And well, that is innovation. Most innovation is not a creation ab-nihilo, it is some form of putting old ideas together in a new way. However, if the old ideas are covered by IP, the new idea will only see the light of day if the holders of the old IP let it. And even then, the holders of the old IP will be able to take a cut on your profit shrinking your cut as though your innovation is somehow less deserving than theirs… So basically, there is very little incentive to innovate on something that is covered by IP. This slows down innovation significantly and some of us are not huge fans of the world being held back so a couple of dinosaurs can keep milking the same cow.

Anonymous Coward says:

Re: Re:

Again, it would be true if there was only ever a single solution for how to do things. Part of what copyright does create is the need (and as a result the push) to create different ways to accomplish the same thing, and often those new ways are better than the original concept.

Innovation isn’t just nailing together two things that have never been nailed together before. It’s coming up with new things to nail together. It’s the difference between assembling ideas and actually having one of your own.

ralph says:

antitrust

Antitrust case study XEROX:

Lone inventor, Chester Carlson, frustrated with expense required to copy patents, submitted to USPTO his invention to reproduce documents. He rose from unimaginable poverty. His Xerox machine interested Battelle Memorial Institute. He agreed to give them 3/4 of future profits in exchange for three (3) thousand dollars and their promise to advance the technology. The invention eventually found its way to Haloid Corporation which invested 75 million. Xerox was a commitment to innovation from the very beginning. It was so successful the FTC became concerned.

Legal and political pressure on Xerox by 1975 forced them to accept the FTC’s aggressive antitrust position and compulsory licensing mandate. It opened the floodgates to competition. In 1972 Xerox owned 100 percent of the market for plain paper copiers. Four years later in 1976 their market share dropped to 14%. The FTC didn’t calculate the impact of of their actions. Intent on cultivating US competitiveness by royalty free giveaways, foreign competitors such as Canon, Toshiba, Sharp, Panasonic, Konica, and Minolta jumped in and claimed significant American market share. Dissembling inventor infrastructure has unforeseen consequences. Rash and fear-based judgments and actions destroy decades of the creative expression, innovation and invention, persistence, and production and accepts in its place a dumb-down perspective with disingenuous positions, turf wars, that will further undermine the U.S. economy and potential for recovery.

Source: The Invisible Edge (2009) Mark Blaxill and Ralph Eckardt, Pgs. 227-232. Penguin Group.

Ralph

Anonymous Coward says:

Prior Art?

So, I’m not expert on copyright, but the second patent in this list was applied for in December of 2007. A quick googling shows that Twitter has been around (and I’m assuming using similar technology) since March of 2006. Wouldn’t that show that if anything, the patent was stealing ideas from Twitter, and the lawsuit has no merit whatsoever.

Ronald J Riley (profile) says:

Paid Bloggers

There is a thriving industry of paid bloggers.

Some serve to harass disgruntled clients for big business which does not understand that delivering fair value and good service is the best way to cultivate a good reputation.

Others promote big company’s political goals.

At this point I think that reasonable people may wonder if TechDIRT is a haven for both types of promotion of less than reputable businesses which are looking for insight into how they can cover their their tracks.

Ronald J. Riley,

Speaking only on my own behalf.
President – http://www.PIAUSA.org – RJR at PIAUSA.org
Executive Director – http://www.InventorEd.org – RJR at InvEd.org
Senior Fellow – http://www.PatentPolicy.org
President – Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 – (202) 318-1595 – 9 am to 8 pm EST.

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