A new documentary is out, Patent Absurdity: how software patents broke the system:

Patent Absurdity explores the case of software patents and the history of judicial activism that led to their rise, and the harm being done to software developers and the wider economy. The film is based on a series of interviews conducted during the Supreme Court's review of in re Bilski a case that could have profound implications for the patenting of software. The Court's decision is due soon...

With interviews from Eben Moglen, Dan Bricklin, Karen Sandler, Richard Stallman and others...

I discuss Bilski in Supreme Skepticism Toward Method Patents and The Arbitrariness of Patent Law, and Moglen and Stallman in Leftist Attacks on the Google Book Settlement and Eben Moglen and Leftist Opposition to Intellectual Property. The film is worth watching.

But interestingly, the site for a film about patent absurdity contains this notice: "Movie copyright © 2010 Luca Lucarini."

Consistency FAIL!

Via Afterdawn, the U.S. Government Accounting Office has issued a report that indicates that the FBI, Federal Trade Commission, and the U.S. Border Patrol have simply made up numbers about losses the entertainment industries have incurred due to internet piracy. And, of course, the RIAA and the MPAA have happily passed these numbers along.

See it for yourself here:

http://www.huffingtonpost.com/2010/04/13/star-wars-uncut-fans-recr_n_536332.html

http://www.starwarsuncut.com/

Music to ears around here is a leader (editorial) in The Economist this week entitled Copyright and wrong: Why the rules on copyright need to return to their roots link here. It begins by observing that copyright became law in England 300 years ago this week, as "An act for the encouragement of learning." It put a time limit of 21 years if a book was already in print and 14 years if it was new, with a right to get it extended 14 more if the author was still alive. And that was the end of it.

The opinion piece goes on to make a series of familiar arguments; that the belief that extension of a copyright's term increases creativity is questionable and that current lengths discourage creativity when the penalties even for inadvertent infringement are draconian as is often the case. It also asserts, "Authors and artists do not generally consult the statute books before deciding whether or not to pick up pen or paintbrush." It ends by noting that a return to the earlier much shorter term of copyright would be "arbitrary but not unreasonable." And "[i]f there is a case for longer terms, they should be on a renewal basis, so that content is not locked up automatically." "[F]air use needs to be expanded and inadvertent infringement should be minimally penalized."

Well reasoned and stated.

Supreme Court Justice John Paul Stevens is set to retire at the end of this Court's current term.

There are growing predictions from many authorities that Stevens might be the primary author of the Bilski patent case which has yet to be handed down.

Nobody ever got rich by successfully predicting what the Court will do, but overall, this seems to be very good news.

Stevens has been the one Justice who has consistently argued in favor of rational limitations on IP laws based on Constitutional principles.

He was the primary dissenter in the Eldred case which expanded copyright terms.

In his Eldred dissent, he specifically argued for limitations in the scope of both copyright AND patent law.

He was also a dissenter in the Diamond v. Diehr case - arguing that there should be further limits on software patents.

If Stevens is indeed the author of the Bilski opinion, that will likely be a good sign that the decision will offer something of good substance in terms of getting back on the road towards a sane patent regime.

We don't often think of the courts as playing an active role in the evolution of intellectual property law, perhaps because we tend to accept the assertion by judges that they follow precedent. Writing in the Washington Post, Steven Pearlstein cites four cases where the D. C. Circuit Court has gone out of its way to assert that the regulators have exceeded their Congressionally granted authority. link here

The key graph: "Many of the D.C. Circuit judges have long since stopped pretending to defer to the factual determinations and policy judgments of duly appointed regulators, as the law requires. Deference has now given way to skepticism, hostility and contempt that can easily be read between the lines of overly legalistic opinions that routinely ignore the plain language of statute and the clear intent of Congress. It's gotten so bad that top regulators told me privately this week that they routinely put aside consideration of needed new initiatives because they assume they will be foiled by the hostile appeals court."

In the first case, the DC court went after the Federal Communications Commission for exceeding its authority in trying to regulate Comcast violations of net neutrality. In the second case, Pearlstein charges the Court with interfering in the development of generic drugs, thus extending the drug patents of the large pharmacy companies. Thirdly, he knocks the Federal Trade Commission for going beyond the pale in trying to reign in " a tech company for enhancing its monopoly in a certain chip-making process by deceiving an industry standard-setting body. According to [Judge] Williams, the fact that its deceit 'merely' enabled a monopolist to charge higher prices doesn't constitute illegal anti-competitive behavior." Huh? Finally, the court stopped the Securities and Exchange Commission when it tried to require that 75 percent of the directors of a mutual fund be independent of the company chosen to manage the fund's investments, in order to protect small investors.

I can't find the quote, but Supreme Court Justice Oliver Wendell Holmes Jr. argued that justices first decide how they want a case to come out and then pick the arguments to reach that end. With that in mind, it is much easier for us commoners to understand how judges reach their judgments and that being human, they are not averse to expanding their own powers.

The Statute of Anne makes for interesting reading.

For instance, if books were perceived as overpriced, any individual could make a complaint to the authorities (among them the Lord Archbishop of Canterbury, the Lord Chief Justice of the Common Court, the Vice-Chancellors of the Universities of Oxford and Cambridge). Booksellers and printers could be summoned to justify the "reason of dearness." If the price was found to be excessive, the authorities could, "limit and settle the price for every such printed book."

And for each book printed, "nine copies upon the best paper," were to be reserved for "the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the Four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh." If delivery of books did not take place within ten days after receiving a demand from a library, the offender was fined five pounds (per book).

What would five pounds in 1710 be equivalent to today?

Copyright and wrong