Susan Decker of Bloomberg reports "Alberto Gonzales to Help `Special Master' on Check Patent Case" link here. Her lead is, "Former U.S. Attorney General Alberto Gonzales, who was forced from his job amid a controversy over the firings of federal prosecutors, has been hired to provide assistance to a special master on a patent case." Need one say more?

A lot is being written about the Anti-Counterfeiting Trade Agreement (ACTA) and given that many readers here will have seen something about it elsewhere link here, here and here I have not posted on the subject. But for those not up to speed on this, the government with strong support from the copyright holders and their lobbying groups has been trying to agree on the wording of trade agreements with many of our main trading partners whose terms were not revealed. They now have been leaked link here. It is widely assumed that the government was proceeding this way to avoid having to open the language of legislation to amendment by Congress. An up-or-down vote on an already negotiated trade agreement would have a better chance of passing as submitted in its present strong form. In addition, it is expected that the government will press other countries to sign up to the same strong terms, i. e., without change, if they want trade agreements with the US.

What has some really upset is the provision to enforce filtering on the internet, to disable such P2P sites as Pirate Bay, and to invade privacy by going through travelers computers and music players when they cross borders. In other words, this is not simply better enforcement but a substantial expansion of the law.

A copyright battle is opening over a poem, Footprints in the Sand, a piece of inspirational saccharine which has been widely believed until now to be in the public domain. According to Washington Post Staff Writer, Hank Stuever, the poem has at least six people claiming authorship link here. The copyright is pretty questionable, since it has been published for years under the authorship of anonymous. Copyright was not claimed until 1986 but there is money, apparently quite a bit, in licensing the poem for imprint on cups and shirts and such, so the fight will now commence and more claimants may emerge.

The lawyers are about to have a feast once again over what is the result of really vague and therefore bad law. But with so many vested interests in the present text, it is unlikely to be changed anytime soon so we all lose.

The quintessential stupidity of copyright law once again confronts us in the case of Barbie vs Bratz dolls (Mattel vs MGA Entertainment) link here. The fight is over who owns the Bratz doll design. It was designed by Carter Bryant. If he did the work on it while he worked for Mattel, it owns the copyright under the terms of his employment contract. If he did it while working for MGA between work stints with Mattel, MGA owns it. The lawyers have made it more complicated than that, which should keep the jurors scratching their heads.

The evidence the contending sides present is contradictory. But is it relevant? Where in this case, is the justification for intellectual property that it fosters innovation?

Why do we have this kind of case?

Matt Yglesias link here calls our attention to a paper by Dan Hunter and John Quiggin link here, which Matt calls The Economics of Amateurism and the original study entitles Money Ruins Everything.

Quoting from the original paper, "In the economy of the 21st century, economic and technical innovation is increasingly based on developments that don't rely on economic incentive or public provision. Unlike 20th century innovation, the most important developments in innovation have been driven not by research funded by governments or developed by corporations but by the collaborative interactions of individuals. In most cases, this modality of innovation has not been motivated by economic concerns or the prospect of profit. This raises the possibility of a world in which some of the sectors of the economy particularly the ones dealing with innovation and creativity are driven by social interactions of various kinds, rather than by profit-oriented investment. This Article examines the development of this amateur modality of creative production, and explains how it came to exist. It then deals with why this modality is different from and potentially inconsistent with the typical modalities of production that are at the heart of modern views of innovation policy. It provides a number of policy prescriptions that should be used by governments to recognize the significance of amateur innovation, and to further the development of amateur productivity."

Yglesias comments, "Strong IP makes it more difficult for commercial and non-commercial actors alike to be able to innovate. It compensates for erecting this financial hurdle by creating unique financial incentives toward innovation -- incentives that only help a commercial actor. In a world with weaker IP, more and more work should come from hobbyists, amateurs, and non-profit organizations."

He concludes that the problem is in righting the balance.

But to me the more basic problem is that strong IP has made innovation less likely, not more. Weaker IP should lead to more innovation, contrary to what the public has been led to believe.

In an op-ed for the New York Times, Larry Lessig takes up the question of "orphan works" link here. He begins usefully, reminding us that copyright had to be applied for before 1978, rather than being automatic as ever since. His proposed solution is to provide automatic copyright for 14 years and then requiring registration to extend it. He opposes the current draft law which would put aspiring users of "orphan works" through a complicated and expensive process of trying to find the copyright owner. He also covers special provisions for foreign copyright holders and the transition from the old system to a new one.

He doesn't really address the issue of why it would not be better to go back to the old system and require registration. I suppose he reasons that it is unlikely to be enacted. But that doesn't mean it isn't the better way to go.

Techdirt link here and Slashdot here both offer an hour video of a lecture on IP that is stimulating and well worth watching, particularly for someone like me who is a newcomer to these issues. If you haven't seen it, you have missed a good show and a compelling argument. The lecturer, patent attorney Stephan Kinsella, bills himself as a libertarian but he makes a strong utilitarian argument as well that all the evidence shows that the ostensible gains are exceeded by the costs of the system and that society is clearly poorer as a result. To me the utilitarian argument seems to be the one most likely to succeed with the general public, i.e., that IP is bad for the average person.

The Bank of America has come up with another "gee-whiz innovation" that will come as a surprise to almost nobody. It proposes to carry out comparative country studies to determine whether a company should move its operations abroad and if so, where. And it is applying for a patent on the process link here.

The problem here is that prior art is rampant in this proposal. Companies have been doing exactly such studies on their own forever. The graphic that is included in the application is a catalog of the obvious

.

One must wonder too, about the public relations wisdom of including this quote in the application: "A typical American employee,' complains BofA, 'demands a high salary, good benefits, a good work environment, vacation time, and other job-related perks.' Such problems are solved with BofA's patent-pending methodology, which eliminates 'demanding work force' problems by identifying another country for a corporation to relocate its work force to."

Writing on his website, James Fallows points a finger at CCTV, China's state television network, for running a story warning against pirated or unauthorized copying of its coverage of the Beijing Olympics as violating the "intellectual property rights of CCTV, the official broadcaster" link here.

Fallows sniggers, "I can barely imagine the horror of some group in China copying someone else's proprietary material and distributing it outside the proper channels." And then shows a graphic of what is available at his local video store.

This reminds me once again that developing countries are unlikely to enforce IP rights until they have a vested interest in protecting them when they themselves develop substantial income producing rights. Given the speed with which China is developing, the days of cheap pirated copies have got to be numbered. Too bad.

Adam Liptak calls our attention to a short paper by George Washington University Law School teacher John F. Duffy, which "seems poised to undo thousands of patent decisions concerning claims worth billions of dollars" link here. It challenges the validity of the appointment of judges deciding patent appeals. Liptak seems certain that the challenge is valid but also that legal chaos will result because all those cases would have to be reheard before legitimately appointed judges.

One may hope that the outcome will be as the professor argues because it opens up the opportunity to reject an enormous number of decisions that have since been questioned, such as the one granting business process patents. But given the amount of money at stake, few would write off the ability of legislators and lawyers to "craft a solution" which leaves things as they are. Too bad.