What is the Law of Obviousness?
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).
New Claim Construction Data
We've updated the dataset for the Claim Construction Project through mid-September 2006. This includes about 14 months of post-Phillips cases on claim construction at the Federal Circuit.
I've also posted a short (20pp) paper and presentation that takes a look at the post-Phillips data and its implications. (Preview: not much seems to have changed.) See the Claim Construction Project for more details.
Good New Obviousness Paper
Sean McEldownley (a 2005 Penn Law grad, former part-time RA, and all-round outstanding patent lawyer) has just published New Insights on the “Death” of Obviousness: An Empirical Study of District Court Obviousness Opinions [pdf] in the Stanford Technology Law Review.
The title basically explains the overall project: an exploration of district court results in obviousness cases. One important feature of this study is that McEldowney compares obviousness results from the 1970s and 1990s -- that is, before and after the Federal Circuit's development of the doctrine. He develops five empirically-verifiable conclusions:
As compared with the 1970s:
- Fewer district court opinions reached the question of obviousness in the 1990s;
- A smaller number of individual district courts issued a greater proportion of the obviousness opinions published in the 1990s;
- When district court cases reached the question of obviousness, they were less likely to invalidate a patent as obvious in the 1990s;
- When district court cases reached the question of obviousness in the 1990s, they were less likely to invalidate complex patents than simple patents; and
- Regional variation among the circuits in the rates of obviousness did not decrease between the 1970s and 1990s.
From these one can draw a number of interesting conclusions; McEldowney notes several possibilities, as well as potential avenues for further research.
Overall, a good read, an interesting project (and refreshingly efficient - only 22pp long!).
eBay v. MercExchange: A Victory for Patent Lawyers (and a loss for everyone else)
The Court unanimously holds that the traditional four factors for equitable relief apply, and that categorical rules (either in favor or against injunctions) are inconsistent with this approach. Other than this, the majority opinion is largely content-free, and just 5 pp long.
There are two concurring opinions, which provide some interest: in one, Roberts (with Ginsberg and Scalia) notes the importance of precedent and historical patterns in granting injunctions. In the other, Kennedy (with Stevens, Souter & Breyer) seems to suggest that district courts should take account of certain current aspects of the patent system, such as (a) the emergence of patent licensing firms; (b) the potential for injunctions where patented aspects are a small component of the overall product; and (c) business method patents.
I read the Roberts concurrence as suggesting that district courts should almost always issue injunctions. The Kennedy concurrence suggests that district courts should be more reluctant, at least in some cases. Thomas and Alito, who join only the majority, stick to the basic four factors, nothing more.
It's not clear what effect this will have. Obviously, the Fed Cir's 'general rule' jurisprudence is gone. But by the same token, any reluctance to issue injunctions based on "categorical" concerns is also impermissible. So in a way, the small bits of guidance provided by both concurring opinions is inconsistent with the majority opinion.
As has so often been the case in patent law recently, the only clear winners are the patent lawyers -- who are now able to exhaustively litigate injunctive relief in even the most mundane case.
Phillips Analysis, Part 2: What Happened to the Judges?
Note: This post is part of a continuing series on the Federal Circuit's recent en banc decision in Phillips v AWH. See related posts here:One of the interesting things about the Phillips is how the various judges on the Federal Circuit voted, what they said if they wrote, and what that suggests about the future of claim construction analysis at the court.
First the basics: The majority opinion Phillips had nine votes for its complete analysis. Judge Lourie joined most of the majority opinion, but filed a concurrence/dissent disagreeing with the analysis in this specific case. Judge Mayer wrote a dissent on the issue of whether the process is one of law or of fact. Judge Newman joined most of the majority opinion, Judge Lourie's concurrence, and Judge Mayer's dissent.
First, some background: As Federal Circuit observers will recall, there has long been commentary about "panel dependency" at the Federal Circuit, especially with regards to claim construction analysis. That is, many attorneys and academics (and district court judges) believed that the way claims were interpreted was dependent upon the membership of the three-judge panel hearing the case. And because panels are generally randomly assigned to cases, that led to a sense among many that the results has the flavor of randomness to them. The judges, of course, denied this panel dependency, both in print and in public. (See the introductory section of this paper for more details and documentation.) However, in our study published in March 2004, my co-author and I were able to prove statistically that claim construction analysis was affected by panel membership. Not by all judges, and not in all cases, but enough to least substantiate the widely-held view. Broadly, we found that there were distinct factions of judges on the Federal Circuit, and that those differences were significant to the outcome of cases. In part, the data we gathered allowed us to build The Federal Circuit predictor, which can make a rough (but statistically-backed) guess at results in claim construction cases given the panel membership. And course, four months after our study was initially published, the court took Phillips en banc, to resolve this very issue.
So, given the above, one question is how Phillips happened in the way it did. Here are a few observations:
What Happened to the Proceduralists?
As I noted in an earlier post, in Phillips the court chose what I've called the "holistic" approach to claim construction: given the totality of information available, the judge essentially "divines" the appropriate claim construction. The court specifically criticized Texas Digital, which was a leading case setting forth the "procedural" method, which uses a more formal, structured approach. See this page for more information on this distinction. Given this result, one major question is: What happened to the Proceduralists? They seem to have completely caved to the holistics, with nary a comment. Even Judge Dyk, the author and leading proponent of Texas Digital, joined the Phillips majority, with it's rather dubious criticism of the Texas Digital approach. I for one, was very surprised with the complete failure of the most proceduralist judges (Linn, Dyk, and Clevenger) to raise a single contrary word, notwithstanding that two-thirds of the claim construction caselaw was potentially overruled. Why would this happen? I can think of a few possible reasons:
- They got tired; and they didn't care very much about the procedural approach anyway. It's possible that when push came to shove, the Proceduralists simply got wobbly. So rather than stick with their long-professed views (that were, apparently, in the minority here), they simply took the opportunity to flip to the other side, perhaps hoping that their silence would make this easier. Unfortunately, this view might suggest a rather casual attitude towards the development of jurisprudence, and makes one wonder what's next to be compromised.
- Uniformity is more important than being right. Maybe the Proceduralists could see they were going to lose the intellectual argument, and decided that the court's ability to present a unified face was more important than sticking to their guns. This is not an unreasonable position, though I'm not sure it makes any sense in the Phillips case -- which pretty explicitly eschews any uniformity in claim construction analysis. Plus, the Proceduralists could have written a short concurrence noting this point, thus allowing everyone to understand what was going on somewhat better.
- Phillips = business as usual. A third possibility is that the Proceduralists don't think that Phillips really did very much to the doctrine, and that Phillips won't stop them from simply continuing to construe claims as they did before -- with some small changes to the language and no citations to Texas Digital. Under this view, the Proceduralists voted for Phillips because it didn't affect them. I explored this view of Phillips in an earlier post, and concluded that, while it is possible that the judges might think this way, I seriously doubt that anyone else will. This is also, in my opinion, a somewhat cynical approach to appellate decision-making, obscuring the real, underlying, reasons for a selected approach -- this isn't very helpful to district courts, eh?
- The genuinely changed their mind. A final possibility is that, via the advocacy process, the Proceduralist judges simply changed their mind, and adopted the holistic approach. I regard this as the best possible reason for their vote, but think that if this is the case, the Phillips opinion (and the court) would have gained much more credibility if they had written a concurrence stating that they had changed their mind, and why. Instead, their silence requires everyone to speculate, and might lead many to conclude that their reasons are somewhat less charitable than this one.
Judge Rader Flips on the Fact/Law Issue.
Another interesting aspect of Phillips is that Judge Rader voted for the majority opinion, and did not join Judge Mayer's powerful dissent on the question of whether the Federal Circuit should defer to District Courts' factfinding on claim construction. This is a different voting pattern than that which Judge Rader has expressed in the past.
The Judge Newman Votes?
I don't fully understand why Judge Newman voted the way she did: joining Judge Lourie's concurrence/dissent (which joined the majority opinion's analysis of claim construction methodology), and joining Judge Mayer's dissent. The majority opinion notes that Judge Newman did not join as to Part VI, which is the part that adheres to the no-deference, no-fact Cybor rule. So it seems clear that Judge Newman is with Judge Mayer on this point. And yet why join the Lourie opinion, then? Hmmm. One possibility is that Judge Newman wants to establish the sort of "informal deference" that Judge Lourie suggests at the end of his concurrence.
Phillips Analysis, Part 1: The New Rule is There are No Rules
Some initial observations on the Phillips opinion from the Federal Circuit, issued earlier this week:
Obviously, given the amicus brief that Joe Miller and I filed, I'm disappointed with the outcome. In broad terms, the court decided to (in its own words) "return" to the claim construction doctrine exemplified in about one-third of the cases since Markman II, and do away with the dominant Texas Digital line of cases. (The court, unfortunately, does not mention that it has summarily overruled the vast majority of claim construction analyses of the past decade.) In doing so, the court follows rather clearly what I've called the "holistic" approach to claim construction analysis: patent claims are interpreted in light of an all-encompassing, open-ended reading of the claim language, patent disclosure, prosecution history, relevant dictionaries, and on-point expert testimony.
The Phillips opinion, well crafted by Judge Bryson, outlines its argument as follows (page cites are to the slip opinion, available here):
- 1. the claims alone define the scope of the invention (pp. 8-9)
- 2. the touchstone of claim construction is what a person having ordinary skill in the relevant art (a PHOSITA, to a patent nerd) would understand the claim language to mean (as of the filing date of the patent application) (pp. 9-10)
- 3. the PHOSITA is deemed to read the claim language in the context of the entire public record of the patent (including the claim language, the specification and prosecution history) as well as "extrinsic" sources, such as expert opinion, dictionaries, other references and the like (pp. 10-11)
As any reader familiar with patent claim construction will understand, items 1-3 above are universal principles. Unfortunately, they are also pretty much content-free. The devil in claim construction methodology is with respect to step 3: how, exactly, is one supposed to use this array of available information, especially since much of it will inevitably point in different directions and/or be subject to multiple (and yet reasonable) interpretations?
Is is here, I think, that the court begins to go badly awry, "holding" the following:
While claim language is often important (pp. 12-13), the specification is "usually . . . the single best guide to the meaning of a disputed term." (p. 13)
The prosecution history is very important (p. 17), and yet unclear and less useful than other sources (p. 17), and yet (again!) "can demonstrate how the inventor understood the invention" (p. 17)
Dictionaries can be very useful (p. 19), as can on-point expert opinion (p. 19), though these sources are "in general less reliable" than the information noted above (p. 19), because this information was perhaps not created in light of the patent (p. 20), was perhaps created in light of the patent litigation (p. 20), can be gleaned from a "virtually unbounded" universe of information (p. 20), and might perhaps contradict the "indisputable public record" (p. 20).
"In weighing all the evidence bearing on claim construction, the court should keep in mind the flaws inherent in each type of evidence and assess that evidence accordingly." (p. 21)
After setting forth these 'guiding principles', the court goes on to set aside the use of dictionaries (or other objective reference sources, apparently) as a starting point for claim construction analysis:
"That approach .. improperly restricts the role of the specification in claim construction." (p. 24)
"The Texas Digital line of cases focuses the inquiry on the abstract meaning of words rather than on the claim terms within the context of the patent." (p. 25)
Dictionaries can provide an array of definitions, some of which might be different than "the avowed understanding of the patentee." (p. 26)
Dictionaries often provide different definitions for the same words, which causes courts to have to choose among competing definitions. (p. 27)
"[H]owever, we do not intend to preclude the appropriate use of dictionaries. [They] are often useful in understanding the commonly understood meaning of words." (p. 28)
Finally, the court turns its focus to the important question: the relationship between the specification and the claims:
"The line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if the court's focus remains on understanding how a person of ordinary skill in the art would understand the claim terms." (p. 29)
"Much of the time, upon reading the specification in that context, it will become clear whether the patentee is setting out specific examples of the invention to accomplish those [disclosure] goals, or whether the patentee instead intends for the claims and the embodiments in the specification to be strictly coextensive. The manner in which the patentee uses a term within the specification and claims usually will make the distinction apparent." (pp. 29-30)
And in conclusion, the court leaves us with the following:
"[T]here is no magic formula or catechism for conducting claim construction. Nor is the court barred from considering any particular sources or required to analyze sources in any specific sequence, as long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic evidence. ... The sequence of steps used by the judge in consulting various sources is not important; what matters is for the court to attach the appropriate weight to be assigned to those sources in light of the statutes and policies that inform patent law. In [prior caselaw], we did not attempt to provide a rigid algorithm for claim construction, but simply attempted to explain why, in general, certain types of evidence are more valuable than others." (pp. 30-31)
Then, in a rather interesting twist (and one which would seem to foreshadow some problems ahead), the court goes on to apply these guidelines to the facts of the case at hand -- and issues a construction that
(a) is the same one urged by Judge Dyk in a dissent to the original panel opinion -- even though he was using the now-discredited Texas Digital line of cases for support;
(b) is the opposite one as that urged by the original panel majority (Judges Lourie and Newman), even though the same methodological approach was followed; and
(c) loses the agreement of Judges Lourie and Newman in the en banc decision.
So there you have it: Phillips in a nutshell. But what does it really mean? What is the effect of Phillips?
One possible (and perhaps comforting, depending on your view) observation is that Phillips might not change very much of anything. As is clear from the outline above, the court made serious efforts to ensure that no "rules" could be discerned. Perhaps it means for the status quo (a mess, by the way) to continue, with each panel deciding its own particular methodological approach in each case at hand, depending on a number of factors. Under this view, other than the "extreme" Texas Digital, business continues as usual. See The Claim Construction Project for an empirical analysis of the dubious success of the post-Markman status quo. From the judges' perspective, this approach might have the benefit of keeping attorneys, academics, and district courts "off their backs" about the messy claim construction jurisprudence: after Phillips it's SUPPOSED to be messy!
On the other hand, whether it thinks so or not, the Federal Circuit is in the business of appellate judging, and its opinions have a huge impact on the way the patent system operates. So although I can't discount the fact that the judges thought they were avoiding any real change in the doctrine, the reality of the matter is that Phillips has changed the landscape. At least initially, here are some thoughts about how:
The New Rule: No Rules. The court, as noted above, repeatedly makes assertions about the correct methodological approach or weighting of evidence and then withdraws or undermines them. Are dictionaries okay or not? What about inferences from the embodiments in the specification? Should experts weigh in? The best the court can bring itself to do is its final statement: there is no "magic formula", nor are there any limits to what information can be used and in what way. No rules.
The Supreme Federal Circuit. As patent lawyers will quickly recognize, the "no rules" approach means that the Federal Circuit decision on claim construction is the only one that matters. Because the court did not constrain itself in any way, each claim construction dispute it receives will be analyzed in markedly different ways, based on the "context" of the particular case. In this way, Phillips is somewhat shocking in its transparent power allocation to the Federal Circuit: because only that court knows what particular mixture of information, its weighting, the use of inferences, and the like will be "appropriate" in each case, nobody else -- the PTO, lower courts, competitors, or even patentees themselves -- can be anywhere near reasonably confident in their own claim construction. Want a claim construction? That will cost you three years and several million dollars.
More Disputes, More Litigation. But the "no rules" approach laid down by Phillips has even broader effects. First, by raising the uncertainty about the enforceable scope of patents, we can expect more disputes. More disputes hurts all parties to the patent system -- it makes patents a less valuable tool in the marketplace, it can needlessly chill competitors and innovators who can't predict the effect of existing patents, and it adds pure social costs to the equation in terms of the costs of lawyers and litigation. Indeed, the only real winners in Phillips are the patent lawyers. And, of course, those who teach patent lawyers -- bonus!
Less Disclosure in Patents. Phillips' repeated exhortation of the patent document as "an integrated document," as the reason why the specification should play a potentially dominant role in claim construction is likely to reduce the amount of disclosure provided in the patent document. The reason is simple: if the "game" is that claim language can be easily altered (especially narrowed) via information provided in the specification, then savvy patent attorneys will simply provide less relevant information (subject, as always, to the statutory validity requirements). This "minimal disclosure" approach has a second major advantage in light of Phillips: because of the complete lack of guidance provided about how information, especially non-patent information, is to be regarded and weighted in the analysis, a patent with a very thin disclosure is far more likely to gain one interpretation (a narrow one, to enhance the chance of issuance) from the PTO and another for later litigation (a broader one, to expand scope). This is the holy grail for patent prosecutors, and Phillips has pretty clearly shown them the way.
So for now, those are my initial thoughts. Subject to revision; your mileage may vary; this is not legal advice. In all, I'm disappointed with Phillips -- both as an opportunity lost, and as an example of some things I think are wrong with the Federal Circuit. But more about that in subsequent posts . . .
I should note here (though it goes without saying) as well that my criticism of the court is in no way meant to be disrespectful of the judges themselves. Given the current relationship (or lack thereof) between the patent academic community and the court, this sort of disclaimer bears repeating. Phillips is a mistake -- maybe even a really big one -- but I have no doubt that the judges thought long and hard about it before coming to their conclusion.
Phillips and Claim Drafting
So Dennis Crouch, at his excellent "Patently-O" blog posts some claim drafting tips. For the most part I agree with the thrust of his remarks: after Phillips, drafting the specification in a strategic way will be crucial. What I do disagree with is parts of his recommendations 4 and 5:
4) Your initial reaction may be to make the ensure that the specification contains no limiting features. — That approach may not be the best. Your patent will be worthless if it attempts to cover the entire world of technology. Focused patents that stay within their bounds can be extremely powerful.
5) Give the courts 6–months to sort out some details. — But, set-up a docket reminder for January 15, 2006 for a review of all pending applications to (i) ensure that current claim terms are properly defined within the specification and (ii) whether any preemptive amendments are be in order.
But at at this point, I think that Phillips presents only two options to the strategic patent drafter:
A. Curtail the disclosure in the specification as much as possible -- subject to the various 35 USC § 112 limits, of course). This has the benefit (as I noted in an earlier post) of allowing flexibility in claim construction: because the rules are so vague and unpredictable, you can hope to vary the scope of the patent during the course of its life -- typically narrower during prosecution and broader later. The more details you put into the specification, the more opportunities there are for an interpretation to be "discovered" by a court that goes against your interest. So this approach both limits your risk (assuming you can hew closely to the 112 requirements) and enhances the possibility of obtaining a strategically valuable patent.
B. Leave nothing to chance, present a glossary of claim terms in the specification. This approach has the advantage of nullifying the Phillips effect altogether: nobody will be able to mess with your claim scope later on. The risk here is that you (1) can't take advantage of the 'dual meanings' strategy noted above, and (2) need to have a pretty good idea of what you really want your claim to say at an early stage of the process.
Amicus Brief in Phillips v AWH
I recently filed (along with Joe Miller of the Lewis & Clark Law School) an amicus brief in the Federal Circuit's en banc rehearing of the Phillips v. AWH case, which raises issues surrounding the appropriate methodological approach to patent claim construction. You can download a copy of the brief (pdf) here.
Happenings at the Federal Circuit: New en banc case
So let's say that someone published an article that exposed and statistically verified two distinct lines of methodological approach in the Federal Circuit's claim construction jurisprudence . . . .
And then, four months after that article is published and widely disseminated, the court takes the claim construction issue en banc to resolve what it describes as two conflicting methodological approaches . . . .
Coincidence? Maybe. Or maybe not.
In any event, this will be fun -- and a good opportunity for the court to clarify the rules of claim construction.
New Paper: Patent Portfolios
After working much of the summer on this project, I (with co-author and colleague Gideon Parchomovsky) have finally released a working draft of Patent Portfolios. Here's the teaser abstract:
This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio.
The full draft (70pp, 2.3mb, pdf) is available for download here. Comments, as always, are appreciated.
Dissenting from Claim Construction
The past few months has seen an interesting series of dissenting opinions from the Federal Circuit with respect to claim construction. My take on a few:
Novartis v. Eon, 03-1211, -1260 (April 2, 2004) (Clevenger [dissent], Dyk [author], Prost).In this case, the majority (Judges Dyk [writing] and Prost) bend over backwards to find a way--nominally consistent with the "procedural" approach to claim construction--to avoid reversing the district court's mistaken claim construction analysis. Their solution: argue that the variety of definitions for the relevant term ("hydrosol") found in several relevant reference books created ambiguity as to the real meaning of the term, thus requiring recourse to the specification. In doing so, the majority, using classic techniques of inferential reasoning such as "the specification only describes hydrosols made outside the body", effectively limited the claim scope to pharmaceutical products designed for injection, even though the claim language suggests nothing of the sort.
Judge Clevenger, in dissent, makes the majority look like a pair 'o monkeys, noting that the settled law is that where the ordinary meaning of a term is broad enough to encompass several definitions, the term is not vague--just broad! Key quote:
"Hydrosol" simply means "a sol in which the liquid is water." Nothing in the dictionary listed under the word "hydrosol" speaks to the site where hydrosols are made. A "hydrosol" can be made anywhere, and manufacture outside the body is just a narrower subset of anywhere, with anywhere including inside the body. The existence of the narrower subset does not create ambiguity. It simply tells us what we know–that terms frequently have broad and narrow meanings. We then look to the specification and file history to determine whether the patentee made a clear disclaimer of the broader meaning. If not, the patentee is not taxed with narrowing references by way of examples (such as the intravenous
This is a terrible majority opinion, purporting to follow the good approach to claim construction ('proceduralism) while reaching the opposite result. Definitely does some damage to the law of claim construction.
Nystrom v Trex, 03-1092 (June 28, 2004) (Mayer, Gajarsa [concur/dissent], Linn [author])Here, the majority--quite properly, in my view--refuses to limit the contested claim term 'board' to 'wood materials made from logs". As the majority points out, there is nothing inherent in the term board that would suggest that it must be made of wood, and the patentee did not explicitly disavow other materials or sources. The Gajarsa dissent is classically holistic: claim terms are subject to searching and thorough review by the federal circuit, and he would find inferences in the patent document (again, of the "single example" type) limiting the term board to wood boards. This is a nice, solid (no pun intended) claim construction analysis on the majority's part.
more to come soon ...
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.
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)