The Uncertain Future of Business Method Patents

31 October 2008

This is an unscheduled News Update post.

Yesterday, the Court of Appeals for the Federal Circuit affirmed the denial of a patent for a business method of risk management relating to changes in energy costs.   The court ruled that in order to qualify as patent-able subject matter, a process must meet both parts of a two-part test (displacing the State Street "useful, concrete, tangible" test):

  1. "tied to a particular machine or apparatus"
  2. "transforms a particular article into a different state or thing"

There's plenty of coverage on the blogosphere:

Some US opinions seem very excited and optimistic for the downfall of business method patents: Techdirt and TechCrunch.

One British point of view seems a bit calmer; no point in getting excited until the case gets to the Supreme Court: The Guardian.

PatentBaristas gets down and dirty with the nitty gritty, including some court vs. legislature banter.

A rather in-depth look at the court's opinion is available at Patently-O.

And, if you're really interested, you can check out the whole opinion.


It will be interesting to see how the case affected the patent auction in Chicago yesterda, as well.  From the looks of IP Finance's report, the case shouldn't cause too much of a tidal wave in the area of IP trading.

Getting War and Peace Peacefully

28 October 2008

Yesterday Google announced some very exciting news: an agreement reached between them and the other side of the Google Books lawsuit.  (Press release.)  This is very exciting!  I'm not going to get into the press release because IPKat has already done a great post with a copy of the press release and some commentary.  Instead, here is some information about the nitty gritty of the proposed settlement.  (The settlement is currently awaiting approval by the US District Court for the Southern District of New York.)  Later, we'll look at what the settlement could mean for general IP law and IP policy.

For a detalied expert opinion on the settlement, see Lessig's blog.

Benefits of the proposed settlement:

For the rightsholders (i.e. authors and publishers):

  • cash payments for any works that have already been digitized (from $5 to $60 depending on the work)
  • a portion of the proceeds collected by Google from the Google Library Project (63/37 split)
  • usage fees based on how often their particular work is accessed
  • inclusion fees for allowing the book to be included in the subscription database (basically like buying a copy of the book and the rights to reproduce it digitally and display it)  (expected to range between $25 and $200)
  • the creation of a registry that's sort of like a collecting society (a book version of ASCAP/BMI/SESAC) that will maintain a registry of rightsholders and facilitate payments to the proper people
  • the ability to opt out of the Google Library Project in whole or in part, provided they do so by April 5, 2011 [note: there is some concern that this gives the rightsholders too much power and defeats the purpose of copyright.  This author disagrees and feels that this provision allows rightsholders to exercise the rights given to them by the copyright law over digital versions of their works in the same manner they have exercised these rights over print copies.]
  • promotion of other works via hyperlinks to publisher and author webpages
  • a warm fuzzy feeling that their works are being appreciated and they are being compensated

For Google:

  • the right to digitize works and compile the digital library (non-exclusive and subject to some restrictions, which may include rightsholder approval)
  • revenue from the sale of subscriptions of its database, sales of individual books and advertisements (split 37/63 with the rightsholders, see above)
  • a warm fuzzy feeling that it is making the world a better place

For us:

  • a simple and easy way to google the library - we'll be able to search through millions of books the same way we can currently search through millions of webpages, and we will be able to view a certain section of the book surrounding our search terms (basically between 10% and 20% of the book)
  • the ability to access the full text of books in the Google Library Project at local institutions that subscribe to the database, similar to JSTOR or ProQuest
  • the ability to purchase on-line access to copyright protected books
  • free and easy access to public domain books  (I've tried this out already by googling part of the first line of my favorite book, "it is a truth universally acknowledged."  Got the whole book right on my screen; it's pretty nifty!)
  • access to the complete Google Library Project database at our local public libraries
  • the ability to annotate and share annotations of books with others with whom we are collaborating, limit 25 (Google is all about the sharing)
  • better disability access to works held at participating libraries (participating libraries who have digitized their collections with Google are allowed to use their digital copies for a variety of things including providing access to people who cannot use the physical books)
  • faster access to knowledge via hyperlinks relevant to the works found in searches
  • digital backups of works and easy replacement of destroyed or deteriorated hard copies (this may help solve some of the problems with library reproduction rights under the fair use doctrine in regards to digital copies)
  • a warm fuzzy feeling knowing that our laws can work for us and make everybody (pretty much) happy

Now, the question is, since all this only applies to US access, how will it affect my Google Books here in Nigeria?

Why Congress, Why Part II

26 October 2008

As promised, we are returning to the PRO-IP bill to look at Congress's reasons for the bill.  This may be our last look at S. 3325; there's a lot of other interesting stuff going on in the international IP world (check out the sidebar).  Also, if you haven't already done so, please submit your thoughts on some good things about IP protection!

Here is a brief look at two more reasons Congress listed as its sense for why the US needed to strengthen its IP laws: (S. 3325 § 503.)

  • effective criminal enforcement of the intellectual property laws against violations in all categories of works should be among the highest priorities of the Attorney General

Why?  Why should criminal enforcement of intellectual property be more important than violent crimes, drug issues or the government's favorite enemy, terrorism?  I'm not sure I can buy this reason.  How do others feel about it?

  • terrorists and organized crime utilize piracy, counterfeiting, and infringement to fund some of their activities
Oh!  That's why.  The IP criminals are terrorists!  At first I was very skeptical about this; it was the government crying terrorism like the boy cried wolf.  But I looked into it a bit and found that there is some support for this claim.  Most of the information and studies are about 3 years old.  The reports seem to show two separate connections between terrorist organizations and copyright infringement:

(1) terrorists engage in piracy in the same manner that they engage in a variety of other illegal trade, such as arms trafficking or drug running,

(2) people who have been arrested for piracy have been supportive of or have leanings towards terrorist organizations.

I will agree then that piracy, counterfeiting and infringement funds terrorist activities.  If terrorists are fundraising with pirated goods just as they are with drugs, then yes, piracy is technically funding terrorism.  It’s also possible that pirates who support terrorist organizations might donate funds they raised from their piracy.  Again, this can technically be called piracy funding terrorism.  If the terrorists sold flowers, would we enact laws against those? 

As another author pointed out, copyright infringement is its own issue.  Yes, it is illegal, so yes, the government should address it.  But protecting the rights of creators should not be mixed up with anti-terrorism laws.  I’m sure all illegal activities can be linked together in some way.  Drug dealers might drive over the speed limit; people who drink under age might also jaywalk; and terrorists might engage in copyright infringement.  That doesn’t mean that the laws dealing with each of these crimes should be all mashed together.

As for the organized crime claim, this seems like a problem from a logic game.  If a group of people have organized their copyright infringement activities so that there are large-scale manufacturing plants and elaborate distribution networks, as is the case in Nigeria for example, are the pirates using organized crime to support their piracy, or are the criminals using piracy to support their organized crime?

For those who are interested, here are some further links for information on the terrorism/piracy connections:

the government claiming a connection (2005)

report of person engaged in infringement and supportive of Hezbollah (2006)

the scary stuff: RIAA video claiming the link (2008)

and something a bit reassuring: Current US AG’s take on the issue (2008)

Gimme an I! Gimme a P!

21 October 2008

I know in my last post I said I would continue looking at Congress' reasons for the PRO-IP bill (S.3325) this week, but I changed my mind.  I'm human; I'm allowed to do that.  Looking back over the first month of posts, I'm a bit disappointed.  They're all so negative.  I got carried away with the over-the-top-ness of the new PRO-IP bill and focused mainly on the downsides to intellectual property laws.  But IP laws aren't all bad.  I'd venture to say even the PRO-IP bill isn't all bad.  So I would like to take this post to present:  Some Good Things about IP Protection.

Of course, to start with, we have the time-honored intellectual property laws "promote the progress of science and the useful arts".  People are beginning to question this statement, but I think it's true.  Some people do things because they want to do them, or just because they can, but the majority of people work for some sort of incentive.  The question is finding the optimal amount of incentive, that illusive "balance" between creator and user.  So we can put down as good thing #1: promotes creativity.

Intellectual property rights (IPR) also promote other things, like investments.  If I want to create something, but I don't have the capital to do it, I have better chance of getting a money if I can offer the source of the funds something in return.  Knowing that my creation will have value, and could have a very large value, gives the people with money incentive to invest.  This is especially important in places like the drug industry, where lots of investment is needed.  There is also the emerging IP Finance industry, which allows IPR owners to use IP as collateral.  Good thing #2: promotes investments.

Some IPR even protects us.  Trademarks let consumers know about a product without having to do lots of research every time they want to buy something.  They allow companies to build a brand name, so the companies care about their products and services.  This results in better products for the consumers and better ability by the consumers to find those products.  Good thing #3: protects the general populace.

Besides the economic incentives for creators, IPR also provides assurance that the creator can maintain some control over their creation.  Even creators who forgo possible economic incentives usually hold on to some sort of control over their works.  Do a search on and compare how many authors reserve some control rights compared to the number than only request attribution (which is also a right, but reserving no rights puts a work in the public domain).  Without this assurance, creators might be dissuaded from creating, for fear of creating a Frankenstein's monster over which they have no control.  Good thing #4: assurance for creators.

That leads us into a fifth benefit of IPR: identification.  Patents require a name; trademarks are registered to a company and copyrighted works; even if done anonymously or pseudonymously, copyrighted works have an author somewhere that can be contacted somehow.  That means if you like what a person created and want more of it, you know where to look.  Good thing #5: facilitates locating the creator.

Some people argue that IPR, especially copyright, inhibits building off of other people's work, because it gives the original creator full rights to all derivative works.  But this is only one side of the coin.  Copyright also encourages collaboration.  When one creator wants to use another creator's work in their own, they will need to contact the original creator (or rights holder, or licensing agency) to get permission (and pay money).   This will open a dialogue between the second creator and the first creator (or someone who has connections to other works) and could stimulate further ideas.  Two heads are better than one, they say.  Good thing #6: stimulates ideas and collaboration.

For brevity's sake, I'll stop there.  But I'd like to know: What are some of your reasons that IP protection is good?

Why, Congress, Why?

19 October 2008

Today's look at the PRO-IP bill (S. 3325) will focus on the "Sense of Congress."  Perhaps there are reasons for the changes made by this law, things Congress knows that we don't understand yet.  Perhaps....

Here are four reasons Congress listed as its sense for why the US needed to strengthen its IP laws: (S. 3325 § 503.)  (Later this week, we will look at the rest.)

  • the United States intellectual property industries have created millions of high-skill, high-paying United States jobs and pay billions of dollars in annual United States tax revenues;

Yes, this is probably true.  IP is so prevalent in society that I'll even accept that at least 1 out of every 300 Americans is employed in a high-skill, high-paying job because of an IP industry.  (Current population approx. 300 million.)

  • the United States intellectual property industries continue to represent a major source of creativity and innovation, business start-ups, skilled job creation, exports, economic growth, and competitiveness;

Again, a true statement.  But while both these statements are factual, the nexus between them and the changes made to law seems to be missing.

  • counterfeiting and infringement results in billions of dollars in lost revenue for United States companies each year and even greater losses to the United States economy in terms of reduced job growth, exports, and competitiveness;

Ah yes, the good ol' piracy is killing our industries and our economy.  I don't need to get into this because ars technica did a wonderful piece about "The dodgy digits behind the war on piracy."

  • the growing number of willful violations of existing Federal criminal laws invoking counterfeiting and infringement by actors in the United States and increasingly, by foreign-based individuals and entities is a serious threat to the long-term vitality of the United States economy and the future competitiveness of United States industry;

This statement could be true; I have no idea.  I'm not a fortune-teller.  However, I think Congress overlooked something very important here:  "the growing number of willful violations."  The question should not be "how do we stop this growth?"  The question should be, "why is there a growing number of willful violations?"  Let's think about this for a moment.  What are some reasons people break the law?

  1. Extreme Desperation: such as drove Jean Valjean to steal a loaf of bread in Les Miserables.  While that could be a reason for people supporting their families through the sale of pirated cds in third world markets , it probably does not explain the "growing number of willful violations" in the US. 
  2. Ignorance: On the other extreme there's the ignorance plea, the kind used to excuse a child for stealing a candy bar from the supermarket.  "He didn't know any better; I'll pay for it," and all is well again.  With the high-profile lawsuits like Napster, Grokster and the Thomas case, as well as the ever present anti-piracy trailers at the beginning of every movie and warnings posted on everything we buy, it's highly unlikely anyone can claim ignorance of copyright infringement laws.
  3. Bullshit: The general population either doesn't care about the law or doesn't understand the reasoning behind the law.  Or, even more likely with such a large increase in willful violations, the people DISAGREE with the law.  They don't think it's for their benefit, or even the benefit of the country as a whole.

Now, without getting into all the different philosophical theories about laws and legal systems, I would like to suggest that if there is a large showing of people who break a law or do not believe in a law, the lawmakers should step back and re-evaluate said law, and possibly who this government is "of," "for," and "by."

Image by: Lovelypetal cc-by, available at

PRO-IP Bill is Now Law (and still wasting our tax dollars)

14 October 2008

Well folks, he did it.  Bush signed the PRO-IP bill into law.  Now, I can only hope it goes unenforced.  Torrent Freak has a good post on just how crazy this new law is.  One thing people have been celebrating (people that aren't lobbyists or the RIAA) is the removal by the Senate of a section that would have given the DOJ the ability to bring civil infringement claims.  It was the DOJ itself that had to step in before Congress could be talked out of that idea.

A sigh of relief swept the country when the provision was struck.  There was a general feeling of "at least our tax dollars won't be fighting Hollywood's battles for them."  But it's a false sense of relief.  Our tax dollars are not as safe as we hoped or believed.  What am I talking about?  Title IV of the new law: Department of Justice Programs.

There's plenty in this title that could serve as fodder for burning our tax dollars (improved forensic research for IP crimes!), but I'm going to focus on one provision:  Sec. 401 Local Law Enforcement Grants.

The Federal Government has had a program in place for many years that provides grants to State and local governments to aid them in the prosecution of computer crimes.  (42 U.S.C. 3713.)  To obtain these funds, State and local governments need to have enacted laws that prohibit and penalize certain types of computer crimes, like on-line fraud or hacking.  The grant funds may be used for enforcing laws against and prosecuting computer crimes, and for the development of educational and awareness programs.

Copyright infringement was just added to the list of computer crimes.  In the law's language:

The Office of Justice Programs of the Department of Justice may make grants to eligible State or local law enforcement entities, including law enforcement agencies of municipal governments and public educational institutions, for training, prevention, enforcement, and prosecution of intellectual property theft and infringement crimes. (S.3325 Sec. 401(b).)

So there it is.  Our tax dollars are still hard at work to "protect" the mass media companies from theft.  A grant program that used to protect the security of our identities and the sanctity of our on-line information, now panders to the iniquitous MPAA/RIAA (or as one blogger called them, the MAFIAA).

Slight Changes, Big Effects?

11 October 2008

Continuing our examination of S.3325, the PRO-IP bill, we're going to look at two separate provisions that I believe are interrelated.  The first of these is Sec. 105 of the new bill, Importation and Exportation; the second is Sec. 303, Joint Strategic Plan.

Don't Bring It In, Don't Take It Out - Sec. 105

Sec. 105 amends Sec. 602(a) of the Copyright Act (17 U.S.C. § 602), formerly Infringing Importation of Copies or Phonorecords.  Importing infringing works is considered, along with unauthorized importation of legally made works, to be an infringement of the exclusive distribution right (given in 17 U.S.C. § 106(3)).  That provision has been in the Copyright Act since 1976.  The new bill adds another way to infringe this right: exporting infringing works.

My initial reaction upon reading this was, "oh, wow, they're trying to help developing countries by doing what they can to limit the amount of pirated materials entering those countries."  After all, the Nigerian Copyright Commission's recent study of piracy in Nigeria found the US to be the fourth largest source of pirated goods in Nigeria (tied with India, and falling far behind Singapore, China and Malaysia.)  [See Survey of Copyright Piracy in Nigeria, The Ford Foundation (2008), p. 49.]

As I continued looking at the new bill,  I realized just how over-generous my reaction was.  The more likely real reason for the inclusion of exportation is much more self-serving.  I believe Sec. 303 holds a clue.

Never Fear, the Americans are Here! - Sec. 303

The goal of the Joint Strategic Plan outlined in Sec. 303 is to fight piracy, reduce the amount of infringing goods in existence... in the world.  It includes a subsection entitled "Enhancing Enforcement Efforts of Foreign Governments."  (§ 303(f).)  This includes giving "training and technical assistance to foreign governments." It's not a new idea.  The current Copyright Act provides for this a bit, just not in such infringement-fighting focused language.  (See 17 U.S.C. §  701(b)(3).)  The US government has been engaging in foreign trainings on IP law for some time. (Description of the program already in existence can be found on the Intellectual Property Rights Training Program website.)  A DOJ workshop in Nigeria last year on "Investigative Skills for Intellectual Property Crimes" discussed amending the Nigerian Copyright Act.  In Zambia, Intellectual Property Rights trainings are conducted by the USPTO. (Page 7 of link.)

So, if this provision doesn't really add anything new, why did it catch my attention?  Because of Sec. 105. 

Simon Says - Sec. 105 in light of Sec. 303

Section 105's inclusion of exportation is probably less for the US and more for developing countries.  Developing countries, developing their intellectual property laws, turn to countries like the US for examples, guidance and assistance.  It will be much easier for the United States to control the movement of infringing material made in other countries if the DOJ can say "look, we have this provision in our copyright law, you should put it in yours, too."  Several directors at the Nigerian Copyright Commission have told me that when the US comes in with suggestions for IP laws, the countries "just eat them right up."

Other countries enacting similar laws would benefit the US in several ways.  Not only could this lower the amount of infringing materials moving around the global market, it would also shift the burden of enforcement from the US to countries where the infringing works originate.  The pirates will be handled at the export stage, before they've had a chance to import goods into the US.

I neither condemn nor condone these provisions; I'm fairly agnostic towards them.  While I do think it's a bit sneaky, I also think it's a fairly decent approach.  There is  a sense of legitimacy added when a country is willing to do itself what it asks others to do.  Additionally, neither of  these provisions are creating any drastic changes.  The US government will continue to work with other countries in the area of IP laws, perhaps with just a little more focus on piracy.  And trading in infringing goods is still illegal, it's just illegal in both directions now.  What I'm interested to see is the impact this provision has on the development of global IP standards.

IP Can Save the Economy!

07 October 2008

The Enforcement of Intellectual Property Rights Act of 2008 (S.3325) passed the Senate and the House last week.  I was hoping the economic situation might have caused enough of a distraction for this bill to fall by the wayside.  No such luck. 

This is the first post in a series here on Ip's What's Up that will be taking a closer look at the new Pro-Ip bill, breaking it down into simpler parts and analyzing a bit of the changes.  If you would like a more detailed review of the law, Jennifer L. Elgin and Matthew J. Astle of Wiley Rein LLP have done a very thorough report of the bill at The Metropolitan Corporate Counsel.

Give it to the Gov.

Section 206 of the new Act is entitled "Forfeiture, Destruction, and Restitution."  It amends Title 18 of the US Code (Crimes and Criminal Procedure) by adding a new section in Chapter 113 (Stolen Property).  This new section, 18 U.S.C. 2323 is called, you guessed it, "Forfeiture, Destruction, and Restitution."  In many ways, it matches similar forfeiture laws for drug related offenses.  But Sec. 2323 has something special - Civil Forfeiture:

"The following is subject to forfeiture to the United States Government:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17 . . .

(B) Any property used, or intended to be used ...(for doing what's in part A)...

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of ... (doing what's in part A) ..." (italics added)

The above mentioned Section 506 is the Criminal Offenses section of the Copyright Act.  It covers three different types of willful infringement:

  1. bootleg pre-releases via computer of works intended for the commercial market (Sec. 506(a)(1)(C)),
  2. infringement for "commercial advantage or personal financial gain" (Sec. 506(a)(1)(A)), and
  3. internet file-sharing [with some stipulations - the combined retail value of files shared in a 180-day period must be at least $1000] (Sec. 506(a)(B)).

Let's take a look at what this could mean.  Ignoring, for now, the "everyday people" internet infringements, we'll focus on the infringement for financial gain.

Mr. Combs Saves the Economy

About a year ago, the Sixth Circuit heard a case involving infringement for commercial advantage, Sean Combs sampling of the Ohio Players song "Singing in the Morning" on the Notorious B.I.G. (Biggie) album Ready to Die.  The court remanded the case because it found the $3.5 million in punitive damages excessive.  (Bridgeport Music, Inc. v. Justin Combs Publ'g, 507 F.3d 470.)

But what does the $3.5 million matter?  Under the upcoming 18 U.S.C. 2323, any money made directly or indirectly from Ready to Die, any equipment used to make the infringing track, and anything Bad Boy Entertainment or Universal Records (part of the defendant-group) has that came from proceeds directly or indirectly created by Ready to Die is subject to forfeiture to the United States Government.

Sean Combs' success as a producer, rapper, entertainment mogul and everything else he does can be traced to his work on Biggie's albums.  Ready to Die itself fueled Bad Boy Entertainment's rise to the top; the album was it's first multi-platinum seller.

So, Mr. Combs, your Sean John clothing line, your East Hampton home, your share in Ciroc vodka and your nearly $350 million net-worth are all directly or indirectly related to your infringement for commercial advantage of "Singing in the Morning."  Fork it over.  The government does have a plan to fix the deficit and the financial crisis!  Look out Dr. Dre. 

Ok,ok - that's a bit extreme, but you can see why this new provision worries me a little bit.  Forfeiture for crimes like drug trafficking, that actually make a few wealthy at the expense of the entire community, make some sense.  After all, the government has to pay to maintain the community.  But, I fail to see the causal connection that allows a private right of action to allow forfeiture to the government.  What's next?  If the cops recover my car from a joy-rider, do they get to keep it?

This Creation is Not for Your Enjoyment

05 October 2008

Several recent experiences have reminded me first-hand that our current IP system is broken, and it needs to be fixed.

Desiring to listen to some music, I attempted to go to my account.  I couldn't.  Why?  Copyright laws.  What I got instead was this posted notice:

Dear Pandora Visitor,

We are deeply, deeply sorry to say that due to licensing constraints, we can no longer allow access to Pandora for listeners located outside of the U.S. We will continue to work diligently to realize the vision of a truly global Pandora, but for the time being we are required to restrict its use. We are very sad to have to do this, but there is no other alternative.

Willing consumer, looking for music, can't listen because of "licensing constraints."  One of my favorite things about Pandora is that it uses music I know I like to suggest new music I might like.  Frequent result: I like it and look for the album to purchase.  But, I'm not in America right now, so no Pandora.

Second demonstration of the week:  Back in July I attended a weekend's worth of theater productions at the Texas Shakespeare Festival.  I was ecstatic to learn that we could order DVDs of the various shows.  A friend of mine is a fan of both 1776 and Matthew Ecclestone (the actor who portrayed Richard Henry Lee in this production), but she was unable to travel.  I ordered two copies of the DVD, one for her and one for me.  This week I received the following in an email (and yes, I got the author's permission to reprint it here):

I'm not certain if that DVD is gonna come through or not--you may just get your money back, as the script for 1776 is, in fact, copyrighted and they had some issues with that.  If you ordered one of 12th Night that's a-ok of course, Shakespeare not being all that into collecting royalties nowadays.

In both these cases, behind-the-scenes legal technicalities are preventing creative works from being enjoyed. Purchasing DVDs of the Texas Shakespeare Festival's rendition of 1776 would in no way harm the authors of the script.  This is not taking away money the authors otherwise would have had.  No one is going to buy this version instead of buying the feature film.  Nor, is seeing this DVD likely to prevent anyone from going to a Broadway performance or buying a soundtrack.

Domestic and international rights are often separate and different in conditions and length of terms. They are also often licensed to different companies.  A company's limitations in the territory it services can contribute to the division of rights in different geographical areas.  The result: Pandora has obtained proper licenses to play author's works in the United States, but has not been able to do so in some foreign countries.

Negotiations are expensive, and there are a lot of different reasons negotiations for licenses can fail.  When a company needs to go through the negotiating process multiple times, with multiple different companies, it greatly increases their costs.  If a company needs every agreement in order to perform their services effectively, each negotiation is a new chance for the whole project to fall apart.

I understand that the current copyright law protects authors' rights to publicly perform and to distribute their works.  However, when these laws prevent creative  works from being enjoyed by consumers who are willing to pay, then the system isn't working properly.  What good is the incentive to create if people can't enjoy the creation?

The States Can’t Copyright Their Law

01 October 2008

This week, the SF Chronicle ran a story about a man named Carl Malamud who is creating a website where he would like to provide the public with access to our laws for free. He is posting case law, statutes, municipal codes, and law in its various other forms. However, he's run into a major problem. Some of the state governments are asserting that they hold a copyright of their laws and are threatening to sue him.

Reading the story surprised me for a few reasons:

1. As an intellectual matter, it shocks me that there are people who actually believe that they can or should be able to copyright the law that we are all held accountable to.

2. The author of the story is clearly ignorant of the current state of the law. Here is the legal analysis in its entirety: "Malamud says he believes that he's on solid ground if he is sued. Some legal experts agree." That's it. I don't expect journalists to be legal experts, but this is piss poor for an article that is supposed to be reporting on this copyright dispute.

In five minutes of Google time, anyone could have learned that Section 105 of the Copyright Act, while directly not on point, prevents the Federal Government holding a copyright in its works, including the law. That's a good starting point. As for state law, the Fifth Circuit recently wrote "'the law, whether it has its source in judicial opinions or statutes, ordinances or regulations, is not subject to federal copyright law." Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791, 800 (5th Cir. 2002) (en banc). Then, instead of their worthless quote above, the paper could accurately report that the state's copyright claims are all frivolous and compete bullshit.

3. Lastly, this story is at almost half a year old. It was reported in the Washington Times on April 19, 2008. Over five months ago. Yet, the Chronicle reports it as if it is new news on September 27, 2008. The blogosphere also covered it in several places including here, here, here and here. What took the Chronicle five months to catch on to this story?

I really hope that this story is an outlier in terms of quality, but I fear that it is not.

Treaty Updates

With the close of the WIPO Assemblies this week, there is a lot of news regarding treaties coming out of Geneva.  In addition to our regular post, Ip's What's Up presents this brief recap of recent developments.

General News



  • The United States ratified the Singapore Treaty.  This brings the total number of contracting parties to eight, just two shy of the ten needed for the treaty to enter into force.


  • China extended two treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), to Hong Kong, effective today (October 1, 2008).


  • The African Intellectual Property Organization (OAPI) accession to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs became effective on September 16, 2008.  Beginning on January 1, 2009, the treaty's provision for 90% fee reduction for LDCs will be extended to intergovernmental organizations with a majority of LDC members.


  • Several amendments were made to the Patent Cooperation Treaty (PCT).  One set of amendments changes procedures in the international search system.  The other amendments relate to international application processing.


For a full report of these events and updates on the various committees, check the WIPO press release.