Fair use is now an issue in the Republican nomination race link here. John McCain used several seconds of Fox News video of a campaign debate in one of his ads which should be all right under fair use, but he has been told to take it down for copyright violation. But two other candidates using similar footage have not been so treated. Where is the fair in this use? Does a copyright owner have the right to enforce it discriminatorily? Get me a lawyer. Better, get rid of copyright.

Gigi Sohn proposes six points to reform copyright in a speech yesterday link here. The complete text is available here. Teeing off from the fact that the scope and duration of copyright has been steadily expanded, limiting innovation, she suggests fair use changes, limits on secondary liability, protection against copyright abuse, better licensing, orphan works reform, and better notification of technological and contractual restrictions on digital media. Most of our readers would prefer abolition of copyright but it isn't going to happen any time soon, so these ideas are worth a lot of discussion.

Alex Tabarrok calls our attention to prizes as a means to foster innovation in drugs here. In this case, Bernie Sanders has introduced the Medical Innovation Prize Fund Act of 2007 which provides $80 billion a year to pharmaceutical companies to place their patents in the public domain, thus allowing anybody to make the drug. Drugs developed without patents would also be eligible for prize money.

Tabarrok has some doubts about politicization of the awards but comes down in favor. More details on the bill are here

This blog has posted about prizes before. They still seem like a good idea for drugs because of the wide public benefits.

Nate Anderson has an interesting piece on the lack of understanding among teachers of fair use link here. Researchers wanted to know if confusion over using copyrighted material in the classroom was affecting teachers' attempts to train students to be critical of media link here. The answer was "yes." The study, by the Center for Social Media at American University cites fear of law suits, lack of understanding of the vague rules for fair use, and a desire to avoid controversy.

One example: a teacher had his students create mashups of pop music and news clips to comment on the world around them. The school refused to show them on the school's closed-circuit TV system because "it might be a copyright violation."

Is there a good short clear guide to fair use? Fair use gets 1.7 million Google entries, so there seems to be a need for greater clarity.

Every day brings new outrageous stories concerning intellectual property. Today's by Jordana Lewis involves something this blog reported on in the last few days, publicity rights, and adds a new wrinkle, California's Dead Celebrities Law link here.

You have to read the whole story to get how "property" can be created from nothing more than a memory. It is a stretch to go from saying that permission is required to invade some dead person's privacy to saying that it can be sold. Then one must ask what public purpose is served by this monstrosity. Perhaps the welfare of lawyers? Or the widow of a dead acting coach? link here

Martin Crutsinger writes that the US today started a world wide effort to expand enforcement of copyright link here. "U.S. Trade Representative Susan Schwab said the administration planned to join with other countries to negotiate an Anti-Counterfeiting Trade Agreement that would toughen efforts to confront copyright piracy." The move is initially directed at Canada, the 27-nation European Union, Japan, South Korea, Mexico, New Zealand and Switzerland. Schwab is quoted, "Today launches our joint efforts to confront counterfeiters and pirates across the global marketplace."

Her statement raises a lot of questions. Where do most of the violations occur? I suspect in poor developing countries which are not immediately the target here. But if we rope in the developed countries, copyright enforcement is likely to be part of more free trade agreements, extending the power of the new effort.

Schwab said the new agreement, which the administration hopes to negotiate quickly, would set a higher benchmark for enforcement that countries will be able to join on a voluntary basis voluntary if they want access to US markets. If the wording has to be negotiated among that large a group of countries, one wonders how quickly it can be done.

Schwab is also quoted, "Global counterfeiting and piracy steal billions of dollars from workers, artists and entrepreneurs each year and jeopardize the health and safety of citizens across the world." One may ask who benefits from copyright other than the owner of the copyright, typically a big company. Think Disney and Mickey Mouse, created by the long dead Walt.

So here we go with another effort to expand the reach of our state created monopolies.

Catherine Rampell reports another case of copyright overreach link here. This time a mother took a short video of her 13 month old bobbing in time with a song and put it on YouTube. Universal Music charged the song infringed its copyright and it was taken down, but now the mom is suing Universal for abusing copyright law. She makes a pretty reasonable argument to most of you who will read this--"The idea that putting a little video of your kid up on YouTube can mean you have to go to court, and maybe declare bankruptcy and lose your house, is just wrong,"

To be "fair and balanced," the article quotes Douglas Lichtman, a UCLA law professor who advises Viacom on copyright matters, "These companies are sending out 100,000 takedown notices, so of course once in a while there's going to be a fly caught in the ointment, Everyone's trying to be careful, though. They don't want the PR backlash that comes when they make a mistake." That of course is nonsense. The companies don't use any sense of what is reasonable or a significant violation. They don't want to spend the money to examine each of the violations and exercise good judgment. And most people fold, not wishing to bother pursuing the matter.

The article also suggests that another reason for takedowns is the desire to suppress criticism and cites an example among four other cases where the takedown notice was questionable. Another one involves copying a fashion design in the pattern of a fabric--extending copyright to protect fashion designs which are not patentable. Go to the article to read them.

Consumerist takes us to Great Moments In Commercial History: The Back Up, a patented gun rack for one's bed link here. Don't be surprised in bed by some intruder bent on no good. But patenting it? You can see the patent and all the backup as well link here.

Dean Baker has an interesting discussion of the general subject of exchanging of copyrighted material, keyed to the Jammie Thomas jury trial which awarded $222,000 to the recording companies for downloading 24 songs, with a long set of comments from readers link here. The one new thing to me was this: "The recording industry was apparently able to track down this crime by hiring a high tech sleuth who has software that can monitor the files that people place on their computers." Since when does the RIAA have the right to monitor our internet activity? Big Brother has been watching all of us with more or less legal authority and with the justification of the War on Terror, but since when does anyone else have the right to do so?

The US Patent Office has issued rejection guidelines. You can read them in the Federal Register link here or read K.C. Jones summary link here. Here is my attempt to boil it down. "Factual inquiries" remain the basis for deciding whether a proposed patent is obvious. "That is, patent examiners will continue to consider the scope and content of the prior art, the differences between the claimed invention and the prior art, the level of ordinary skill in the pertinent art, and objective evidence relevant to the issue of obviousness," according to John Doll, commissioner for patents. Patent examiners must explain their rejection of an application as being obvious. One basis is if the examiner identifies a prior art teaching, suggestion, or motivation, but such a basis is not essential to determining whether an invention is obvious. The guidelines include examples.