The New York Times now carries a lot of stories that are of interest to anyone concerned about the high cost of intellectual property protection. The first story today is a debate over who is right AARP or the industry. AARP says the cost of branded drugs rose 8.3% in 2009 link here. Last year the industry complained that the figure was based on wholesale prices, not the retail prices consumers actually paid. Responding to that criticism, AARP switched to retail and still got a big increase. The industry countered that they should use the consumer price index figure which includes generic drug prices--which showed a much lower price increase and argues that the US has the lowest prices for generics in the world.

Of course, all of this back and forth is irrelevant; the high prices for the branded drugs reflect the monopoly that drug patents give the companies a fact never mentioned in the Times story. That monopoly power allows the companies to raise prices at a time when the economy is in recession and other prices are barely rising. It is also a time when many are unemployed and have a harder time making ends meet; particularly if they are ill and require those drugs.

The other story relates to e-books and a quarrel between Random House, the publisher and the Wylie literary agency link here. The quarrel began because Wylie started publishing e-book versions of 13 classics, previously published in hard copy by Random House. Because e-books are newer than the publisher's contracts with the authors and not always covered by its terms, Wylie felt free to enter the e-book business in them. Random countered by refusing to deal with Wylie in future. The two sides have now agreed, with Wylie ceasing to distribute the 13 e-books. No other terms were published.

Send not to know who pays. Clearly it is we consumers and copyright once again loses its reason for being as an inducement to innovate. These books have long been in existence and can have little to do with the incentive to write more for aging, moribund, or dead authors, given that copyright extends for the life of the author plus 70 years.

Really, this is pretty funny.

Duff Wilson writing for the The New York Times link here, tells us about a deal between Roche, the Swiss drug giant, and a start-up, Aileron, which engages in research involving peptides that are "stapled" to another chemical and can be delivered right into the offending illness cells where they may deliver cures without damaging the body elsewhere a magic bullet. The gee-whiz tone of the article will sell stock and improve the chances that boards will approve the drill little different from most promotions.

What struck me, however, was that Aileron holds patent rights to the stapled technology from Harvard University and its associated Dana Farber Cancer Institute. So now creating a patent monopoly, granted according to the constitution to individuals ostensibly to encourage innovation, becomes a way to make the university richer than it already is. Harvard is the same place that lost millions from its fat endowment when its then president Larry Summers began giving directions as to how it was to be invested and guessed wrong. Aileron will get a potential minimum gain of $25 million and a maximum of $1.1 billion if Aileron's projections work out. The article doesn't tell us what Harvard gets, beyond the original patent license fee of an undisclosed amount. Or whether the original research was funded by Federal Government research grants as is common or what the individual scientists involved get. A lot seems to be missing from this story.

The NY Times has a review of the latest book arguing for less restrictive copyright regimes.

Read it (the review) here:

http://www.nytimes.com/2010/08/22/books/review/Darnton-t.html?pagewanted=1&_r=2&ref=science

Brand name product piracy has long been with us and continues to grow if one is to believe the New York Times magazine section link here. The story focuses on sneakers produced in huge quantities in South China where the product range is broad and the copies range from very good to shoddy.

The author, Nicholas Schmidle, has got both Chinese producers and the US feds to talk to him about how the business works. He shows how good the copies are in a series of photos; it would take a professional enforcer and a photographic memory to see some of the differences. But they seem to sell. Indeed the copyright holding makers are reluctant to complain too loudly, for fear of souring the market for all, legitimate and not.

As a one-time economic counselor in our embassy in Seoul Korea bsck in the days when Korean pirates were rampant, I found it was really hard to get the cops to close the pirates down. They were small businessmen providing jobs at a time when Korea was very poor. All this changed when Korea got rich enough to want IP law enforced to protect its own export goods. But I suppose now the name brand producer is Korean while the pirates are Chinese.

Today's New York Times editorial page takes up orphaned works covered by copyright, keying off on the bequest of recordings by jazz masters to the National Jazz Museum in Harlem link here. The problem is identifying the performers and finding them to offer them compensation under the current version of the copyright law. Without that, they won't be reproduced and the works widely distributed. The Times solution is an amendment to the law which would make it possible after a good faith search and undertaking to pay should the performer surface.

The Times notes the bill is unlikely to pass and wrings its hands. What it really needs to do is point out that performance copyright is valid for the life of the performer plus seventy years, an absurdity given the constitutional provision that copyright is ostensibly designed to promote innovation -the current value of such a right beyond twenty or so years is virtually worthless if discounted by an appropriate interest rate- unless you are Walt Disney interested in preserving its control over the image of Mickey Mouse et al. No wonder the current law is known as the Disney Relief Act. In the meantime, the consumer pays in higher prices or the work is unavailable.

Ezra Klein has a smart piece on copyrights today, slamming Chuck Schumer's (D-N.Y.) draft bill to copyright fashion and grandly titled the the Innovative Design Protection and Piracy Prevention Act link here. We really need a lot more op-eds like this if public opinion is to change and we have any chance of stopping still more cancerous IP.

For those who think that the "parody" defense has always provided a clear and fair outlet of escape from copyright's harsh restrictions, you might want to read up on the time in the 1950's when Jack Benny was banned from airing a parody of the 1942 film (and 1939 play) "Gaslight" for a television show he was doing.

Original news coverage after the 1958 Supreme Court decision can be found here:

http://news.google.com/newspapers?id=tX8PAAAAIBAJ&sjid=-YcDAAAAIBAJ&dq=jack%20benny%20supreme%20court&pg=5150%2C2765550 [The Victoria Advocate]

and here:

http://www.time.com/time/magazine/article/0,9171,937550,00.html [Time Magazine]

Classic lines from Time's coverage:

From now on, Benny intends to get permission of anybody he parodies. Gloomed he: "I suppose now they won't even let me do Birth of a Nation. They're afraid we'd hurt the picture."

While I regretfully cannot find an on-line link to a copy of the article, AP television writer Charles Mercer wrote in his syndicated column that week (March 22, 1958):

"Actually, television felt the effects of the suit long before the Supreme Court ruling. If memory serves, we have not seen an all-out parody of any copyrighted work on television since the suit was filed. Television, as everyone knows, is a mighty cautious industry.

Issuing a personal opinion on the ruling, I'm sorry as a television viewer that Benny has lost the case. It's one more nail in the coffin that fate prepares for TV comedians. It further limits the area in which they are permitted to try to make us laugh.

Parody is one of the most ancient and honorable forms of public entertainment. Suddenly to find it illegal is astonishing - and a little frightening in the area of freedom of expression."

Well said. Here is one of the nation's most prominent television critics at the time effectively admitting that a single copyright suit prevented countless of creative comedic works from being produced at the time - a shameful fact that is surely ignored in most law school and history classes today.

The 9th Circuit decision dealing with the jack Benny case can be read here:

http://openjurist.org/239/f2d/532/benny-v-loews-incorporated-columbia-broadcasting-system

The subsequent and brief (4-4) Supreme Court decision simply read without explanation:

PER CURIAM.

The judgment is affirmed by an equally divided Court.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

You can find a copy of it here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=356&invol=43

A subsequent parody case which cast criticism on the decision makes for interesting reading here: http://cip.law.ucla.edu/cases/case_berlin_ec.html

The bottom line is that the so-called "parody" protection from copyright has always been an opaque crock. It is no clearer now than it has been in the past, but creative works are still being stifled from fear of treading on copyright's parameters:

http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vis=1&oi=scholarr

http://blogs.law.harvard.edu/yuminemma/files/2009/12/cat-not-in-hat1.jpg

http://grove.ufl.edu/~techlaw/vol9/issue1/collado.html

ADDENDUM: I recently came across yet another Jack Benny-related copyright outrage here:

http://boingboing.net/2010/01/18/cbs-uncovers-rare-ja.html

Oh, the irony. Even in death, the copyright regime still torments him.

David Post over at the Volokh Conspiracy has thoughts on the matter worth reading here:

http://volokh.com/2010/08/18/the-high-cost-of-copyright/

The attorney general of Connecticut is investigating whether e-book makers Apple and Amazon have engaged in pricing fixing with book publishers. In this article on the investigation, I am quoted saying:

Alleged price-fixing agreements in cases like this have but one source: the government's monopolistic grants to e-book makers and publishers through so-called intellectual property laws. In a fully free economy, where ideas cannot be locked up and competitors are free to enter the market, such agreements would have no force whatsoever.