Archives: IP Politics

What is the Law of Obviousness?

November 1, 2006 9:55 AM

With the Supreme Court taking the KSR case this term, an important question is what the Federal Circuit's law of obviousness under 35 USC § 103 looks like.  (The petitioners in KSR, of course, suggest that the law is both a public-policy mess and inconsistent with 1960s and 70s Supreme Court precedents.)

Lee Petherbridge (Loyola LA) and I have a new empirical project that takes a look at this question.  We have some initial findings to report in our new paper, The Federal Circuit and Patentability: An Empirical Assessment of the Law of Obviousness, 85 Tex. L. Rev. __ (2007).

November 1, 2006 in Federal Circuit, IP Politics, Patents | Permalink

Losing Copyright

June 21, 2004 3:32 PM

Last Friday I attended (and spoke at) the a conference here at Penn entitled, Knowledge Held Hostage: Scholarly Rights versus Corporate Rights in the Digital Age. I should note that It was a somewhat rare occurrence for me; of late I do not typically get invited to these events, at least since my pro-IP paper, Information Wants to Be Free, was widely circulated -- don't want to disrupt ideological purity and all that . . .

In any event, the conference, which was very ably organized and put on by the Annenberg School, was generally a gathering by and for a collection of academics, NGO and lobbing folks, and a smattering of interested lawyers. As you might suspect from the title, the theme of the conference was very much one highly critical of 'corporate copyrights', and the copyright system more generally. Much of the discussion (sadly, there is really no 'debate' at these things) were versions of what we've all heard many times before: big corporations (e.g., movie and music companies) are using copyright law to stifle the ability of ordinary folks (here, scholars) to communicate. I counted at least 30 distinct 'horror stories', all of which invariably involved a copyright dispute (or even a copyright question -- more about this later) that sometimes prevented a worthy publication, presentation, video, etc from happening as was desired by the scholar/academic.

As anyone who has followed anything about new media in recent years can tell you, this is all very stylish, yet remarkably formulaic: lots of discussion about "suppression of free expression", "tyranny", "evil", "bullying", etc. Disney, is of course cast as the primary villain, and the heroes are all of the brave souls who 'speak up' about the issue. Lawrence Lessig is generally understood to be a prophet.

The problem with these sorts of events is a distinct lack of real discussion. Nobody from the relevant music or movie companies was invited (to my knowledge), and none came. Other than myself, nobody who was even mildly in favor of the current copyright regime spoke. There seemed to be a fair bit of group-think going on here: much nodding of heads and agreement, but less analysis of what was (a) really going on in the copyright world, and (b) what might be done to deal with it.

As someone who generally believes that the copyright law is -- though not perfect -- a extraordinary vehicle for stimulating the creation and distribution of high-quality information goods, I left the conference mildly discouraged. Much of the discourse from this end of the copyright spectrum is of the 'scorched earth' variety, leaving little room for debate or discussion in the effort to portray pro-copyright folks as evil. This is, of course, seems to me to be exactly the wrong way to actually deal with any real copyright reforms. This is not to say, however, that the pro-copyright folks, especially the often-goonish folks at the RIAA and MPAA have been model citizens here. My point is to note that neither, in my view, is behaving productively. My sense is that many in the anti-copyright fold are more interested in building a "movement" against copyright and big content-ownership corporations (and, of course, selling books, raising funds, etc etc) than they are in educating, debating, and seeking real copyright reforms. Maybe this is because they view copyright as a lost cause, or because they doubt their abilities to work with the content companies to hammer out mutually-beneficial reform ideas. Hard to know. A case-in-point here is the recently in-vogue "rejection" of fair use as a pro-public benefit of the copyright system. In my view, this approach only further confuses the already-confusing scope of fair use: if the so-called defenders of fair use won't defend it, then what is the ordinary user to think? Unfortunately, I fear that 'all is lost' is the desired message from the copy-left these days.

I should note, however, a couple of positive impressions I took away:

1. The response to my talk was generally civil and productive (which is not always my experience with the anti-copyright academics). Whether anyone took my message to heart I don't know, but at least they made noises like they were thinking about it.

2. The energy and talent that is creating new models of distribution and licensing is hugely impressive. In particular I note the Creative Commons Project, and Connexions, a collaborative educational toolkit. One of the interesting things for me is how these sorts of project take copyright law to a new level, enabling flexible and user-friendly ways to use copyright to assist in the development and distribution of information. Both projects, however, especially Creative Commons (which the director described as having an 'insidious' motive) have a anti-copyright message attached to them -- which in my view is unnecessary and likely to be counterproductive in the long term.

June 21, 2004 in IP Politics | Permalink

Annenberg Talk

June 18, 2004 2:14 PM

Today I gave a brief talk on the current issues surrounding fair use in the scholarly domain. Here's the paper -- just a draft. (PDF)

June 18, 2004 in IP Politics | Permalink