You are here

Intellectual Property

Don't Miss the CFIF paper: “The Constitutional and Historical Foundations of Copyright Protection.”

Kudos to the Center For Individual Freedom CFIF for its outstanding paper: "The Constitutional and Historical Foundations of Copyright Protection" authored by former Solicitor General Paul D. Clement, Viet D. Dinh, and Jeffery M. Harris, all of whom clerked for the U.S. Supreme Court.

This paper is an exceptionally lucid and particularly timely addition to the current discourse on copyright, given the recent boomlet in revisionist copyright history proffered of late by opponents of copyright specifically, and intellectual property in general, who obviously have not done their homework.

The best new fact that I learned from the  paper is that: philosopher "John Locke himself... argued in a 1694 letter to the Parliament that formal publishing rights should last for the life of the author plus seventy years."

That shows that the penultimate natural rights conservative, John Locke, would not find current copyright durations out of bounds.

 




Copyright Reform or Neutering? Depends If Baby's Thrown Out with Bathwater? -- Part 5 Defending First Principles Series

Current attempts to deem consensus around copyright legislation appear contrived and one-sided because they isolate a particular copyright problem out of context of the other countervailing problems with copyright law. TechFreedom's event this week asks: "CopyRIGHT: Can Free-Marketers Agree on Copyright Reform?"

The initial question for free marketeers will be whether the goal here is true "reform" that addresses the full range of real copyright problems for copyright holders, users, and intermediaries, or if the goal is more about a one-sided "neutering" of copyright by those who don't believe in intellectual property rights at all, and/or those who politically seek a property-less and permission-less Internet commons (i.e. the "information wants to be free" tech-left of Professor Lessig's Free Culture/CopyLeft movement and the Google-led Internet lobby.)

Why Conservatives Should Be Skeptical of Copyright Reform -- Part 4 Defending First Principles Series

There are many strong reasons for conservatives to be skeptical of proposed copyright reform and new entreaties for conservatives to actually lead a copyright reform effort.

  • Jerry Brito of the Mercatus Center argues the opposite in his introduction to the new book: "Copyright Unbalanced: from Incentive to Excess." In his introduction, "Why Conservatives and Libertarians Should Be Skeptical of Congress' Copyright Regime" Mr. Brito concludes that conservatives may find they "are the best situated to lead a reform" of copyright law.

While Mr. Brito's reasoned intro shows why there is a legitimate debate to be had concerning the Constitutional definition of "limited times" to authors for "their respective writings" and provides some context to justify his position, Mr. Brito does not provide the full context necessary for conservatives to make an informed decision of whether or not they should support copyright reform let alone lead the charge for it.

Let's examine the strong reasons conservatives should be skeptical here.

The Copyright Education of Mr. Khanna -- Part 2 Defending First Principles Series

Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed a policy brief on copyright "myths" last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee's views. Don't expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.

There are at least five fundamental flaws in Mr. Khanna's characterizations.

1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.

Mr. Khanna's effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution's treatment of property rights, and copyrights in particular, are really "myths" that misinterpret what he posits the Founding Fathers really meant to do in promoting "progress of science and the useful arts," puts his opinion squarely at odds with America's two centuries of experience with Constitutional rule of law.

Debasing Free Speech as No-Cost Speech -- Part 1 Defending First Principles Series

The genuine U.S. Constitutional principle of "Freedom of Speech" in the First Amendment -- that protects us from the real and time-tested threat of governmental tyranny -- continues to get debased, devalued and misrepresented by the free-of-cost tech movement of Free-Culture, the Free-Software Foundation, Public Knowledge, and their corporate online-advertising allies who commercially-depend on free content and the no-cost sharing of others' private property. They justify their means of debasing, devaluing and misrepresenting Constitutionally-protected freedom speech because it advances their ends of an Internet information commons.

Ironically these freedom-from-cost interests just argued against a Constitutional interpretation of protecting freedom of speech in a brief before a Federal Appeals Court in opposing Verizon's challenge to the FCC's Open Internet Order, because Verizon had the temerity to assert its Constitutional right to freedom of speech, in addition to other legal and Constitutional defenses.

Could Google Be the Lance Armstrong of Tech? Internet as Oz Series Part 5

David Carr's (NYT) excellent analysis of how the mainstream media missed the truth behind cycling legend Lance Armstrong's systematic cheating and deception -- that ultimately led to the International Cycling Union stripping him of his seven Tour de France titles, to Nike dropping him as a sponsor, and to his resignation as Chairman of his cancer-survivor foundation LIveStrong -- got me thinking about the many sad parallels there are with how the mainstream media and blogosphere have missed the truth behind tech legend Google's systematic cheating and deception.

Just like the mainstream and sports media had much self-interest and fear in challenging Mr. Armstrong's representations, i.e. the loss of advertising and reporter access to top people in the sport, the mainstream media and tech blogosphere also have much self-interest and fear in challenging Google's representations, because Google is the overwhelming source of Internet traffic for the media (via Google Search, News, YouTube, and Android), and is also the primary monetization mechanism for the blogosphere.

Google News-ster, Books-ster, YouTube-ster, Android-ster -- Google's Disrespect for Property Part 13

Newspaper and magazine interests in Germany, France, and Brazil are fighting back against Google News' monetization of their headlines and property without compensation by urging lawmakers to pass laws requiring royalties or revenue sharing for ancillary copyright use of their core product news, per AP and NYT reports.

This piece supports three conclusions.

Spotlighting Google's Politicization of the Law Enforcement Process -- My Politico Letter to Editor

Politico published my 500-word rebuttal of Tom Lenard's op-ed "FTC should drop case against Google," as a Letter to the Editor, which you can see here, and also as an online op-ed called: Opinion: Google's political play.

In it, I succinctly expose how "Google often plays politics to evade law enforcement culpability."

Supreme Court likely to leash FCC to the law

In an ominous development for the FCC, the Supreme Court agreed Friday to hear the legal question of whether a Federal Court must give "Chevron deference" to an administrative agency (FCC) when an agency interprets a law in a way which could determine its own jurisdiction. I believe this presages that the Supreme Court will decide next year that regulatory agencies cannot be the effective final arbiter of their own power and jurisdiction under the law, because that constitutional power rests with Congress and the courts.

"Chevron deference" is a 1984 Supreme Court administrative law precedent that directs courts to defer to a regulatory agency's expertise in interpreting statutes directing regulatory action unless their interpretation is unreasonable.

Pages

Q&A One Pager Debunking Net Neutrality Myths