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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  •  
    identicon
    Anonymous Coward, Aug 5th, 2009 @ 11:43am

    "Lofgren has been one of the (very) few elected officials who actually does "get" copyright issues"

    "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?

     

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    •  
      icon
      slacker525600 (profile), Aug 5th, 2009 @ 12:17pm

      Re:

      in all seriousness, the internet is a series of tubes.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Aug 5th, 2009 @ 12:28pm

      Re:


      "get" the issues? No, more like "agrees with Mike".

      By "get" copyright Mike means that Congresswoman Zoe Lofgren actually acknowledges that there are glaring problems with the current copyright system. What world do you live in?

       

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    •  
      icon
      Bubba Gump (profile), Aug 5th, 2009 @ 1:26pm

      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.

       

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    •  
      identicon
      Anonymous Coward, Aug 5th, 2009 @ 2:55pm

      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.

       

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  •  
    icon
    Rob R. (profile), Aug 5th, 2009 @ 12:29pm

    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.

     

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    •  
      identicon
      Ryan, Aug 5th, 2009 @ 12:38pm

      Re:

      Bye. I hate to see you go, but I love to watch you leave...

       

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    •  
      identicon
      Anonymous Coward, Aug 5th, 2009 @ 1:00pm

      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.

       

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    •  
      identicon
      Troll Buster, Aug 5th, 2009 @ 1:32pm

      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.

       

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    •  
      icon
      Rob R. (profile), Aug 5th, 2009 @ 1:48pm

      Re:

      CwF + RtB for me? Fail. Just for your statistics on your experiment.

      You are the weakest link. Goodbye.

       

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  •  
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    voxmanz (profile), Aug 5th, 2009 @ 12:44pm

    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

     

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      Mike Masnick (profile), Aug 5th, 2009 @ 12:53pm

      Re:

      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.

      No one has said anything of the sort. You seem to be confusing copyright infringement with plagiarism.

      If someone claims your song as their own, that's an entirely different issue that has little to do with copyright directly. Oh, and there are also very good market-based means to deal with such copying: make the accusation public. We've seen this plenty of times right here, where a less-well-known artist claims a more well known artist copied their music... and it tends to bring a *lot* more attention on the original artist.

      But don't confuse claiming something as your own with a copyright issue. They're related, but different.

      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.


      Not quite. You're confusing semantics with economics. The issue where property rights comes into play is when there's scarcity. The reason native Americans did not have issues around property was because there wasn't a scarcity issue. Land was abundant. The whole reason property rights evolved was to deal with the efficient allocation of those scarce resources. It's not an artifical construct, it's economics.

      along with some kind of utopian-seeming
      information should be free idea


      No. We don't say info should be free. We say that it will be free. That's just the fundamental economic nature of it.

       

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  •  
    identicon
    C.T., Aug 5th, 2009 @ 12:46pm

    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.

     

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    •  
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      duane (profile), Aug 5th, 2009 @ 1:04pm

      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.

       

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  •  
    identicon
    C.T., Aug 5th, 2009 @ 12:48pm

    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.

     

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    •  
      icon
      The Infamous Joe (profile), Aug 5th, 2009 @ 1:19pm

      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?

       

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    •  
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      Mike Masnick (profile), Aug 5th, 2009 @ 3:17pm

      Re: Copyright as a Whole or Copyright on the Margins

      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.

      I didn't say the whole system was a problem. Nor did Lofgren. She's talking about abusing these gov't granted monopolies for anticompetitive purposes.

      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.

      You're arguing against something you seem to think I said, rather than what I actually said. I'm not saying monopolies are illegal. I'm saying (actually, Lofgren is saying) that because copyrights are a gov't granted monopoly, they deserve scrutiny as any gov't granted monopoly does. That doesn't mean they're illegal. I'm not sure what made you jump to that conclusion.

      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.

      Actually, if I remember correctly, Congress has only granted the exception for MLB, but not for the NFL... but that's neither here nor there.

      I'm not sure what that has to do with copyright though or abusing it for anti-competitive purposes.

      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.

      Again, you seem to be reading more into this than was said.

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

      Um. You just agreed with what I and Lofgren were saying. *shakes head*

       

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      Mockingbird (profile), Aug 5th, 2009 @ 4:50pm

      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.

       

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        identicon
        Anonymous Coward, Aug 5th, 2009 @ 6:52pm

        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.

         

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  •  
    identicon
    Anonymous Coward, Aug 5th, 2009 @ 12:49pm

    I've been coming to Techdirt for about one week now and the amount of commentary bitching directed at this "Mike" guy is astounding. So I'm just going to stop reading comments. Was that so hard?

     

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    reticulator (profile), Aug 5th, 2009 @ 1:16pm

    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.

     

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    Fred McTaker (profile), Aug 5th, 2009 @ 5:05pm

    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.

     

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      Sheogorath (profile), Sep 7th, 2012 @ 4:23pm

      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.

       

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  •  
    identicon
    Anonymous Coward, Aug 6th, 2009 @ 12:43am

    "The guy sitting next to me who works at Disney started shuffling uncomfortably"

    The dollar signs in his eyes started being replaced by tears.

     

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    identicon
    staff1, Aug 6th, 2009 @ 7:48am

    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?

     

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      identicon
      dorp, Aug 6th, 2009 @ 9:01am

      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?

       

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  •  
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    PrometheeFeu (profile), Aug 6th, 2009 @ 8:35am

    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.

     

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    •  
      identicon
      Anonymous Coward, Aug 6th, 2009 @ 8:40am

      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.

       

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    identicon
    ralph, Aug 6th, 2009 @ 9:10am

    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

     

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  •  
    identicon
    Anonymous Coward, Aug 6th, 2009 @ 10:21am

    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.

     

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  •  
    icon
    Ronald J Riley (profile), Aug 8th, 2009 @ 6:56pm

    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 - www.PIAUSA.org - RJR at PIAUSA.org
    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - 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.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Aug 10th, 2009 @ 3:53am

      Re: Paid Bloggers

      There is a thriving industry of paid bloggers.

      Really, Ronald? Please point them out. In every case once such a blogger has been exposed, the damage to their reputation is huge. It's just not worth it.

      I recognize you disagree with what I write, but stooping so low as to accuse us of somehow being "paid" by companies to write stuff -- on a post that I directly reported on, no less, is beneath even you.

      Please, retract this defamatory comment.

       

      reply to this | link to this | view in chronology ]


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