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One of the problems with enforcing copyright in the digital environment is that there is a seemingly infinite amount of content online, free for the taking (if you don’t count broadband internet fees). As a result, it has often been difficult for content owners to convince everyone that downloading content that is easily available–but copyrighted–is illegal. This issue is nothing new.

So what is the cause of this problem, exactly? Is it too difficult to understand what copyright infringement is? Or do people just not care? I’ve always found the argument that Jessica Litman makes in her book, Digital Copyright (2001) (pp. 111-114), to be very convincing. Litman argues that many individuals ignore copyright laws simply because they don’t seem logical to them:

The current copyright statute has proved to be remarkably education-resistant. One part of the problem is that many people persist in believing that laws make sense. If someone claims that a law provides such and such, but such and such seems to make no sense, then perhaps that isn’t really the law, or wasn’t intended to be the way the law worked, or was the law at one time but not today, or is one of those laws…that is okay to ignore.

Litman notes that if enforcement is seen to be incomplete and uneven, people become less willing to apply for permission for what they currently receive without any such permission—or to pay for what they currently receive free. (more…)

It seems that digital television broadcasts in the United States are increasingly being received not via subscription television, but over the airwaves with the help of an old-style technology: rabbit ears.

Viewers who are either unwilling or unable to pay for increasingly expensive cable or satellite television are turning to free-to-air television, with the help of the new generation of rabbit-ear type antennas, which are designed to receive digital broadcasts.

The evidence of this move is not simply andectodal, but is supported by cable television companies and analysts, who have noted drops in pay television subscriptions. As further evidence, at least one cable provider (Time Warner Cable) started offering in November a cut-price package with a smaller range of channels.

Interestingly, it seems that consumers choosing free-to-air over subscription television services are supplementing their viewing with specific programs from cable television operators downloaded over the Internet, including from iTunes.

In a market saturated by subscription television options, is the move back to free-to-air a sign that cable television is simply too expensive these days, or that free-to-air plus selectively purchasing your favorite cable shows on iTunes is both more economical and more enjoyable? Probably both–as well as being a function of the nature of digital television broadcasting itself. Whereas analog television signals become progressively unclear as you move further away from the source of the signal (leading to constant adjustment of those rabbit ears at the margins), digital television broadcasts are typically either received fully or not at all. So remedying poor reception is not such a strong reason to go to subscription television any more.

The article does not discuss the use of external antennas (masthead or otherwise) at all. I wonder if viewers able to do so are also investing in antennas on their roofs?

I was interested, the other day, to see this Online Opinion article by Nick Gruen (Club Troppo) on Australia’s pharmaceutical industry and the idea of manufacturing generics for export. The basic point of in Nick’s post is that investment in the manufacture of generic biologics in Australia is being prevented by Australian patent law and provisions introduced by the AUSFTA (or, at least, government’s interpretation of those provisions). In summary:

1. Australia extends the term of patents for pharmaceuticals to compensate drug companies for delays in the marketing approval process;
2. Patents last longer in Australia than elsewhere – at least partly because pharma companies apply for marketing approval later here than elsewhere, which means marketing approval is granted later, which means the drugs come off patent later.
3. You can’t manufacture for export during the (extended) patent term, even for export (ie even where the drugs won’t be sold in Australia, and even if they’ll only be sold where the drug is off patent);
4. By the time the drugs are off-patent in Australia, generic manufacturing based elsewhere in the world has garnered post-patent market share in many countries, putting a company that manufactures in Australia too far behind the eight-ball;
5. Result: generics manufacture not possible in Australia meaning that high tech industry not possible here – even though result is only that the manufacture ends up elsewhere (like India) where there is no patent term extension.

Since I’m on record as saying that actual changes to IP law brought about by the AUSFTA were less dramatic than people said at the time, this warranted investigation. So I’ve investigated.

My view? Looking at the literal terms of AUSFTA, it looks like there are reasonably supportable ways through for Australia. AUSFTA is constraining (more constraining than TRIPS is), and that is a problem. But there’s always some room for interpretation. Which makes me wonder. Is this another potential case of Australia being the overly-conscientious ‘stick to full letter and spirit of the treaty law’, ‘don’t rock the boat’ goody two-shoes, adopting a conservative interpretation of treaty language that prevents it taking full advantage of the flexibilities available? More over the fold. (more…)

SMH has the story here.

Artist Shepard Fairey, who created the “Hope” poster of now President Obama, has filed a pre-emptive law suit against the Associated Press. The suit, which has been filed in United States District Court in New York, seeks a declaratory judgement for Fairey ruling that the poster is protected by fair use and does not infringe AP’s copyright in the photograph. The suit also seeks an injunction preventing AP from asserting its copyright in the photograph against Fairey.

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Fairey's poster

So, how does Fairey’s claim measure up against the four factors considered in fair use arguments? (more…)

I could never work out why the US Free Trade Agreements included a provision on patent term extension for ‘unreasonable delays’ in the patent office (see, eg, Australia-US Free Trade Agreement Art 17.9.8). I figured there must be delays in some of the developing world countries they negotiate with.

Now I understand why – according to Patently-O, ‘the vast majority of issued patents have an extended patent term due to Patent Office delay’ – at least in his sample of patents issued in March 2008.

PS – note that the Australia-US FTA provision isn’t actually representative. Most of the FTAs require extension in the case of delay in relation to a single patent. Ours only kicks in if there is a pattern of unreasonable delays.

Some colleagues of mine (Paul H. Jensen, Alfons Palangkaraya and Elizabeth Webster), from the Melbourne Institute of Applied Economic and Social Research, have published a new Working Paper that would be of interest to people who, like me, are fascinated by international dynamics in patenting. The paper is called ‘Application pendency times and outcomes across four patent offices‘.

OK, so it’s not the most exciting title in the world. But here’s the thing. They’ve got matched patents applied for in Europe, the US, Japan and Australia, and worked out differences – in outcomes, and how long it takes to get a patent – for the same invention. They’re measuring differences in approach between the different patent offices! How many people do you know who can do that? Here’s an extract from the introduction: (more…)

Bill Patry today has an interesting post on the politics of the current Canadian copyright reform discussion, noting, in particular, the ‘bullying’ of the ‘International’ Intellectual Property Alliance (International in the same way as World Series Baseball, by the way, as Patry points out). Bill’s final point is, I think, a good one:

The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.

I think what interests me about what is going on in Canada is exactly that – the ‘intense, negative reaction’. I think, in part, this kind of intense, negative reaction is, as Patry points out, because the relevant laws have not been proven to work at all. I also think the reaction happens for reasons that Michael Geist points out in his ‘Why Copyright’ talk – it’s about the effects that harsh copyright laws can have – on creativity, on fun stuff that people like to do, on free speech; it’s about the mismatch between copyright law on the one hand, and ‘the real world’ and the possibilities of technology that we can all see on the other.

It’s worth pointing out, though, that there’s a broader geopolitical context to this. In part, the ‘intense, negative reaction’ is a reaction against the high-handed, ignorant, contemptuous attitude of the US – US industry in the form of the IIPA, and the US government in the form of the USTR – an attitude that says that unless your law looks exactly like ours, it must be inadequate – oh, and by the way, we have nothing to learn from you; your laws could not possibly be as good as ours. I think that the copyright debate – because it is one in which that attitude is taken to extremes – crystallises a more general concern about the US ‘attitude’, as illustrated in its lobbying and trade negotiations and treaty negotiations – to the rest of the world. Similarly, I think that the copyright push by US industry and government has broader geopolitical costs to the US – it is feeding anti-American sentiment. A colleague and I have outlined this in excruciating detail in a recent paper, and I’m seeing the same thing happen in Canada.

On a positive side, it’s rather good to see some US companies in Canada pushing on the other side. That might help limit the damage to US interests more generally.

Update: see also Howard Knopf.

It must be Friday. All the IP stories are sports ones.

Several sites have picked up the story that the Major Baseball League is involved in a rather Major Technology Stuff-up. As Madisonian reports:

‘Apparently fans who purchased digital downloads from MLB have discovered that MLB has changed its DRM scheme. Fans who downloaded complete games from MLB had to log in through an MLB web page to verify that the download in question was being viewed on the appropriate, licensed computer. MLB has now removed this page, making those downloads unviewable. Apparently MLB does not know when the problem will be fixed. This means that those who purchased the downloads have been denied the benefits of their bargain.’

As the US sites are reporting – under US law, the fans are stuffed. Circumventing the DRM is illegal under their Copyright Act (the DMCA). And no one can sell the fans the means to access the games, because that’s illegal too.

Aren’t you proud that Australian law isn’t so silly? Here, under the Copyright Regulations 1969, we actually have a prescribed exception that allows circumvention of an access control to get access to stuff where:

(a) the technological protection measure is not operating normally; and
(b) a replacement technological protection measure is not reasonably available.

yay Australia! oh, but that’s right. STILL no one can sell you (or even provide to you for free, personally) with the means to do so. So GEEKY Australian baseball fans are ok. That must be a large group.

Oh, hang on, no. Geeky Australian baseball fans are not ok, because they might be circumventing under US law if they were to circumvent a US access control based on a US site … might depend on the technology; whether all the acts were occurring in Australia. Hmmm……

My brain hurts.

I’ve become more interested in copyright bureaucracies, and patent and trade mark offices: how they operate; how transparent they are; who they are; how powers are divided between them; how they interact; how they characterise their role, their ‘customers’, and their ‘stakeholders’. How we make them accountable for the decisions they make – or how we fail to do so. Regular readers may have noticed this flavour seeping into some of my more recent posts and papers.

Today, my little obsession is the growth of cooperation between Patent Offices around the world. While there’s long been cooperation (Trilateral Cooperation, for example, between the US, Japan and Europe was set up as early as 1983) I’ve been detecting an increase in the number of press releases in this area, and the number of mooted pilots and activities. So, being the obsessive that I am, I thought I’d collect together what’s been going on – at least as published, that I can find – and offer a few thoughts and questions that these developments raise. (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

On the weekend, news that Trade Minister Warren Truss announced that Australia would join, as a third party, the dispute resolution brought in the WTO by the United States against China relating to enforcement of intellectual property rights.

[Update: apparently the Labor party (or at least Simon Crean) approves this decision, labelling it a ‘tentative’ step in the right direction.]

Hmmmm. Do you think this (a) a silly move; (b) a considered and sensible way to protect Australia’s interests; (c) another example of Australia doing its ‘me too’ act with the US on intellectual property law regardless of Australia’s own economic interests? Let’s have a think about this. (more…)

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

There have been a couple of interesting developments in social networking land lately. One demonstrates the value that these networks represent. The other highlights some complicated issues about risks associated with using social networking tools, as well as possible privacy and more general regulatory concerns. (more…)

The New York Times carried a story about a lawsuit filed by restaurant owner Rebecca Charles, proprietor of the Pearl Oyster Bar in New York’s West Village. The article mentions that she has sued Ed McFarland, owner of Ed’s Oyster Bar, she considers to be a “knockoff” of her own. McFarland was her former sous chef for six years. [And yes, apologies for the pun in the title.] (more…)