Copyright

  • October 15, 2013
    BookTalk
    Talent Wants to Be Free
    Why We Should Learn to Love Leaks, Raids, and Free Riding
    By: 
    Orly Lobel

    by Orly Lobel, Don Weckstein Professor of Labor and Employment Law, University of San Diego School of Law

    Under the radar, the monopolization of knowledge has expanded far beyond the bargain struck in Article I, Section 8 of the Constitution.  The enumerated powers of Congress permit the legislature to secure “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” for a limited time “to promote the Progress of Science and useful Art.” Thomas Jefferson described the act of delineating the appropriate scope of intellectual property rights as “drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding argues that Jefferson’s embarrassment extends beyond ownership over creations of the mind.  Moreover, it extends beyond the exercise of public authority contemplated by the Constitution, and into private conduct that can exacerbate the tension Jefferson identified. The embarrassment reveals itself in full force when we focus our attention on the ways we regulate human capital – people themselves, their skills and knowledge, the social connections and the creative capacities and inventive potential that flow through the market.

    Beyond our intellectual property wars, beyond the heated debates about the proper scope of patents and copyright, we’re confronting a surge in the monopolization of human potential for creativity and invention. The past decade has seen a wild expansion of business practices which attempt to control the mobility of talent and secrets. Companies big and small are using non-compete contracts, trade secret and non-disclosure agreements, prohibitions on poaching and soliciting of customers and co-workers, and the preclusion of employee ownership of patents and copyright. Take for example David Neelman, the founder of JetBlue, who was compelled to sit on imaginative ideas that would revolutionize the airline industry for five years because he had signed a non-compete with former employer Southwest. Or Nobel laureate and former Yale University professor, 87 year old John Fenn, who was sued by Yale over his patent on a method he had invented to evaluate new drugs, including the development of innovative AIDS medication in the mid-1990s. Ironically, these pervasive business practices frequently have a counter-productive effect not only on the public and employees, but also on businesses themselves.

    Talent Wants to Be Free looks at how we fight over knowledge and talent in every industry, profession, and region, and considers the right balances of secrecy & sharing, carrots & sticks and freedoms & controls. We have vigorous debates about immigration reform, the patent system, labor unions and health care – all of which bear on how people and organizations innovate – but when we look at our core strategies on human capital, we’re losing out on rich potential, creativity, and drive. When it comes to fighting the war over talent, most of us react emotionally and territorially. But these are exciting times: there is fascinating new evidence from economics, psychology, sociology, management and law that reveal a vision of how to better wage the talent wars. Through interdisciplinary empirical research and insight from the industry leaders, the book reveals that more frequently than we have come to believe, corporations, individuals, industries and regions benefit more when talent is not subject to monopoly control.

  • September 27, 2012
    Guest Post

    By Eric Priest, Assistant Professor, University of Oregon School of Law


    China’s pervasive intellectual property piracy problem, and the resulting impact on American industry and jobs, is a constant refrain in U.S. media and even the presidential campaign.  But are some U.S. companies also benefitting from the infringement?  Some policy makers and software companies are beginning to ask whether U.S. businesses are actually indirect beneficiaries of pirated intellectual property in China (and elsewhere).  When an upstream producer such as a Chinese factory uses pirated software in its manufacturing or logistics operations, the cost of production is reduced.  Some of those savings can also be passed along to the U.S.-based firm that hired the factory, or to the retailer that sells the product.  These cost savings arguably give the overseas manufacturer and the seller of such a product in the U.S. an unfair edge over competitors in the U.S. market.

    Louisiana and Washington State passed laws in 2010 and 2011, respectively, that make it an act of unfair competition to sell a product manufactured using “stolen or misappropriated” information technology.  The Louisiana statute is terse and therefore broad, while the Washington statute contains detailed limitations on liability and requires that the defendant be given notice and have the opportunity to cure.  The Washington statute creates liability for the manufacturer as well as for certain third parties (i.e., sellers other than the manufacturer), although it limits potential third-party liability to large companies with over $50 million in annual revenue, which are better positioned to police suppliers.  

    In addition, Attorneys General from thirty-six states and three U.S. territories last November requested that the FTC consider using its broad unfair competition authority under § 5 of the FTC Act to pursue manufacturers who sell in the U.S. goods that they produced using pirated software in competition with law-abiding manufacturers.  In addition to such federal action, some state Attorneys General have indicated they would consider the possibility of using existing state unfair competition laws (the “mini-FTC Acts”) to the same effect.

  • January 19, 2012
    BookTalk
    Creation without Restraint
    Promoting Liberty and Rivalry in Innovation
    By: 
    Christina Bohannan and Herbert Hovenkamp

    By Christina Bohannan and Herbert Hovenkamp, law professors at The University of Iowa College of Law


    Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of high technology markets. Interconnection requirements, technological compatibility requirements, standard setting, and the relationship between durable products and aftermarket parts and supplies all involve interconnection, or “tying.” But views about the practice tend toward two extremes. Some see tying as inherently anticompetitive, while others view it as unexceptionally benign. In fact, bundling products or technologies is essential in high technology markets and most of it is socially beneficial, but some possibilities of abuse nevertheless remain. 

    Identifying good substantive legal rules for facilitating innovation is often very difficult. Two generations ago antitrust law addressed problems of complexity by shifting the focus to harm. The courts reasoned that they could often avoid unmanageable substantive doctrine by considering whether the plaintiff had suffered the appropriate kind of injury. Plaintiffs who are injured by more rather than less competition should be denied a remedy. In the case of patent and copyright law, the appropriate question is whether an infringer’s conduct served to undermine the right holder’s incentive to innovate, with incentives measured from before the innovation occurred. Some IP infringements do no harm to the incentive to innovate; others actually make the right more rather than less valuable. In these situations relief should be denied without inquiry into the merits of the infringement case.

    Patent and copyright law are both in crisis today – major problems include overissuance, overly broad and ambiguously defined protections, and rules that permit both patentees and copyright holders to make broad claims on unforeseen innovations that lie in the future. The result has been that many patents are valueless, while others have very considerable value precisely because they enclose ideas or technologies that rightfully belong in the public domain. Patent law could be greatly improved if inventions were tied to real, nonobvious technology actually in the patentee’s possession at the time its application was filed, and if patentees were obliged to give comprehensible and timely notice of their inventions. Copyright law would be greatly improved by an aggressive theory of harm that reduces the scope of the derivative works right and increases the scope of fair use. In Eldred the Supreme Court suggested that the First Amendment should not be an important copyright infringement defense because the Constitution’s IP clause and the initial copyright act were passed “close in time,” leading to an inference that Congress must have considered these concerns. But the original copyright act bears little resemblance to the expansive coverage granted by the current Act, passed almost two centuries later.

  • January 19, 2012
    Guest Post

    By Christine Haight Farley, a law professor at American University Washington College of Law


    The Supreme Court handed down its decision in Golan v. Holder yesterday. The case could have been the antidote to its 2003 decision in Eldred v. Ashcroft. It could have vindicated the defenders of the public domain. It could have breathed life into the Copyright Clause in the Constitution. But it didn’t. Instead it hewed so closely to the Eldred decision that it will take wily law professors countless hours of postmortem to remind themselves of why they had any optimism in the first place.

    Like Eldred, Golan involved an act of Congress that reduced the public domain. In Eldred, the Court rejected a constitutional challenge to the Copyright Term Extension Act, which added 20 years to the term of copyrights.  In Golan, the court rejected a similar challenge to § 514 of the Copyright Act, which restored the copyrights of foreign works that had been in the public domain in this country apparently in order to implement our obligations under the WTO TRIPS Agreement. As a result, tens of thousands of works can no longer be freely used.  Since many of these works are quite old—some created as early as the 1920s — authors’ permission to use them may be impossible to obtain because simply locating the author may be impossible. In any event, Mr. Golan will no longer be able to afford Stravinsky’s symphonies as he conducts the University of Denver’s orchestra.

    The first eleven pages of the opinion are devoted to an explanation of our international obligations under copyright treaties. Got it: bad policy or not, we had no choice. Obviously, the opinion was not authored by Justice Scalia. 

  • December 13, 2011

    by Jeremy Leaming

    Renowned constitutional scholar Laurence H. Tribe is weighing in on the House’s consideration of the so-called Stop Online Piracy Act.

    CNET’s Declan McCullagh reports that Tribe, the Carl M. Loeb University Professor at Harvard Law School, has detailed why SOPA is unconstitutional. McCullagh also notes that the measure, which the House Judiciary Committee is scheduled to consider on Dec. 15, is garnering opposition from companies, such as Facebook, Twitter, Mozilla, eBay, and Google. The Motion Picture Association, Bloomberg reports, “is mounting its own counterattack in support of the legislation, through White House visits and a national advertising campaign.”

    The bill, in part, would allow the Department of Justice to seek court orders requiring Internet-service providers, search engines, among other entities, to block or stop doing business with non-U.S. websites allegedly linked to piracy.

    In a 23-page legislative memorandum, Tribe explains the numerous reasons why the measure rests on wobbly constitutional ground.