DISQUS

Knowing Tim, he'll respond by dismissing this critique as "silly" or "obtuse," asking the rhetorical question of "what are patents good for to begin with," or totally going off on some analogy that amounts to an intellectual slight of hand.

Doug I dont care about Tims career as much as you do:):):)

Tim one of your methods of getting attention has been to throw insults. You even boast of it above in a resentful rant that Jim never flattered you w attention. Its been important that I engaged you, otherwise anybody from the industry would mistake the think tanks on TLF, where you write the most, as uninformed and detached. You have valued our engagements since you seemed to have settled down and gotten more sense of proportion (at times). Thank me later.

Regardless of what consumers feel, you cant just go around downplaying piracy to hype up imaginary rights with no other basis than what you regard as a natural right to information.

Tim, your discussion and analysis can appear dismissive at times; the figures I mention above are not so extreme as to be casually dismissed, even if you disagree w/ them.

Steve R, you called me out on that one. Yes, I believe regulatory policy has its role.

Take a look at Jane Ginsburg, Copyright and Control over New Technologies of Dissemination, 101 COLUMBIA LAW REVIEW 1613 (2001). It explains how the DMCA is inline with historical amendments to copyright law by Congress.

Charles, I don't believe the digital market was *broken* in 1997, rather it needed some regulatory basis in order to form- and hence, we are here today in a vibrant digital landscape.

Real Networks is sitting pretty...

Also Tim, why is it even necessary for any firm to reverse engineer FairPlay. An MP3 maker can simply negotiate its own licensing deals with music labels. So to say that the DMCA deters innovation, because it *may* prevent an instance of reverse engineering of a popular product/service is a bit off.

Tim,

You're talking about two things: technical barriers and legal barriers. You also assume MP3 player firms have to reverse engineer iTunes for their customers to get premium content. These are not the types of arguments to set on top of a narrow reading of the case law.

Tim, I'm curious, do you want to repeal Section 1201 to facillitate reverse engineering that would result in interoperable products, or to facillitate *tinkering.* The reading of DMCA cases in your paper suggests the latter.

I ask because many of the cases you talked about set out quite clear guidlines on why acts of reverse engineering were not protected by Section 1201(f)- 1)because the resulting product infringement the Copyright Act or 2)because the intent of the DRM system was broken by the finished product (the interoperable product enabled unauthorized uses). Fewer DMCA cases than you suggests have have declared the act of reverse engineering illegal under Section 1201.

If you want to repeal the DMCA because you think Section 1201(f) prevents reverse engineering for interoperability, your arguments don't support that. Reverse engineering happends EVERY DAY in the industry! On the other hand, if you merely want to safeguard *tinkering*, your arguments are less concerned with innovation than they would be if you were worried about reverse engineering for interoperability.

Jerry,

I don't find that Patrick conflates real and intellectual property. But to the point- Patrick's article shows that he is amenable to changing current copyright policy if certain market failures indicate such a need. He argues that the current market is vibrant, benefiting both consumers and producers.

You are right that copyright policy provides structural enforcement for the creation of markets, and that once those markets arise, they may foreclose the creation of some other kinds of markets. However, lets not fall into "the road not taken" story too much when talking about serious policy.

Your argument that sales of digital goods fall under both contract and federal copyright policy seems a bit vague. I gather your point is that since Congress *chose* to grant copyrights, and because sales of digital goods are, in part, governed by copyright law, that Congress can simply *choose* to amend copyright policy when it feel like. Is this right? I'd opt for Congress to rely on messages from the market.

Your point about time-shifting so that consumers can only watch content during some hours and only on some days is also vague because it tries to raise an issue Patrick does not even address (being able to enjoy content only during some hours and only on some days). I see you anticipating that Patrick would argue for expanded copyrights, or more restrictions on (purported) fair use. That argument does not arise nor is it suggested in his article.

At the end of your critique, you raise the issue of government failure in not protecting fair use and thus Uncle Sam should try to fix its *mistakes*. This does not support the argument you later make for amending copyright policy to facilitate (perfectly) free markets however.

I would also like to see the DMCA's anticircumvention provision aligned more with traditional fair use doctrine as you may agree with, however, lets be a bit cautious here. The TLF post you cite as support for your argument assumes that society should vie for perfectly free markets (as far as I know such a market has not been successful anywhere in the world), and that any instance of non-perfect competition is detrimental to innovation (as far as I know, perfect competition has proven itself the applicable model in almost zero industries).

The differences between perfectly free markets v free markets, and perfect competition v competition are important, because they all pose different economic models. If you ask me, they can be seen as reflecting another distinction; those who argue policy based on abstract principle v those who look towards the industry in question. I trust basing the market more than on abstractions, because the market reflects what actually happens.

I'm a strong supporter of fair use, perhaps as much as you are, and am often disappointed that more people don't talk it about it since its an integral limitation to copyright policy (as is the public domain, time limitations on copyrights, and subject matter). See some writings I've done on reverse engineering and fair use- there is a bit more flexibility under the DMCA than some critics understand. You might also look up some stuff on IPcentral on the public domain. These seem to be issues you hint at as your concern.

My self-correction Jim Lippard. My history is a bit dusty, but there were papers tying the Copyright Clause to certain values in the new republic: "life, liberty and property." In any case, maybe I'm just a loyal fan of Locke and Hegel:)

Tim, I'm expected something other than this post, especially from someone like you, a prolific writer.

First, authors can selectively waive copyright restrictions upon production of a work, so its not quite right to blame them for shifting costs to efforts such as those at Google- unless of course, you believe Google is more important than writers.

Second, the 1976 Copyright Act codification of automatic copyright assignment is consistent with the dual nature of copyright policy- its one of the few aspects of copyright law that reflects a natural rights approach to appropriating from one's works. Copyright was conceived by our founders as both a natural rights and utilitarien construct (as opposed to patents, which the great American, Thomas Jefferson, wavered on but ultimately agreed was necessary to the extent that utilitarien goals would be met).

Third, I agree with you that the issue of orphan works is problematic. However, I don't see the issue being so much as a problem for copyright law as a market opportunity for copyright clearinghouses.

I was actually complimenting you about your comments on Apple and Microsoft. You gotta admit Tim, you do have a field day with these firms quite often:)

As is, Tim, you spend 97% of your patent of the week series explaining a patent, and only add a couple sentences talking about policy.

***Once I've done enough of them that I feel comfortable drawing generalizations***

In 10 years, you will not have even covered 1% of software patents...

A couple other tidbit, on top of feedback I've already given you.

1) I still get the sense Tim, that when you talk about *obviousness* in your article, that you're either using the dictionary definition, or your own sense of obvioussness. Thats fine, but it does not add clarity when discussing a *legal standard* of obviousness.

Also, I'm not sure if the SCOTUS stated they were confused by the TSM test as much as the justifications for it. If you meant something else, then please clarify.

2)its Don Stout, not David Stout. Further, I don't believe NTP is headed by Stout, although he previously worked for the firm, and currently serves as outside counsel.

3)you imply that NTP is not an innovator. Well, it currently has no products on the market, but its wrong to imply that NTP did not invest in R&D; and attempt to create products. NTP previously worked with firms like AT&T; on push-mail technology, as early as 1990.

4)I find it a bit amusing that you defend Apple and Microsoft as victims of the patent system in the closing of your article, despite tirelessly blasting them for stifling competition and innovation b/c they patent their R&D.;

Welcome.

I've seen a lot of great tech policy work from CEI over the years.

Oh, I'm sorry, you wrote that you "don't see" how Richard's patent is valuable. Again, you quibble about the small stuff knowing full well my point.

Oh yeah, the phrase "I don't understand" as you use above, about Richard Bennet's patent needs to be expanded on. When someone who is knowledgeable says they "don't understand" then clarification is due. But when someone who is not knowledgeable says they "don't understand," well...

Tim, again, explain your standards for novelty and obviousness, besides just saying how you don't see any point in the USPTO giving Richard Bennet this patent.

I don't think you understand the point of the patent system.

First, you only consider the ex ante justification (if you don't know what that is, I'm not going to bother telling you).

Second, you seem to think that each patent itself represents an innovation; thats not the case.

Third, what is the point of this patent of the week series when you don't tie your analysis to policy.

Forth, if you think all of these patents are obvious and not novel, then why are you not out there commercializing all the concepts they encompass.

Doug, my point about CAFC/USPTO standards, which you know I don't agree with, was to prod Tim to use those standards to show how ridiculous they are, as well as the patens he looks it. That would make the patent of the week series more informative. Or Tim can create his own set of standards for novelty and obviousness and apply them. As is, his patent of the week series is high and dandy, but tells us little.

Also, Tim, its hypocritical to accuse Aharonian of lack of argument based on your interpretation that he is insinuating something about Moglen.

Because the USPTO/CAFC have "standards." If you don't like them, then propose how they can be improved.

You still don't address my points about the statistical insignificance of one patent per week, nor the oddness of basing a patent simply on its claim construction.

***The critique was written by one Greg Aharonian.***

Do you not know who Greg is, Tim. He has been very influential in arguing some of the policy positions and reflections on the USPTO you would agree with.

If you're going to ask Richard to present a patent to you Tim, at least let him know whether you'll decide on their merit with USPTO/CAFC or your standards. You've done 1 patent per week, and I find it interesting to read, but I wish you'd compare the patents' claims to judicial interpretation and USPTO standards- that would better connect your series to patent policy. Right now, you might as well introduce the series as: "I, Tim, will critique this software patent, and despite it constituting less than .001% of all software patents, please use your imagination of what the other 99.5% of software patents will be like..."

***People who know what they're talking about and know they're in the right don't need to resort to name-calling: the facts speak for themselves.***

Yes

Well, Snorre, I have some friends who are or used to be at the USPTO, and am not going to criticize their work. However, the USPTO's standards for novelty and obviousness are, as you flamboyantly suggest, a bit outdated.

Well, I'm not caught up on USPTO re-examination procedures, but then I'm not doing a patent of the week series where I need to invent my own standards for novelty and obviousness:):)