Tag Archives: Mike Masnick

That’s My Chocolate Cake Recipe, Dammit!

Erik Hayden at The Atlantic with the round-up. Hayden:

When Chuck Schumer reintroduced the Innovative Design Protection and Piracy Prevention Act in Congress, industry insiders hailed it as a breakthrough for high-end fashion designers looking to protect their work from the copycats and ripoffs that inevitably appear after a trend comes into vogue. But as opinion begins to trickle in about the proposed legislation, some critics are bit more skeptical about the merits of the bill.

Rather than encouraging innovation, skeptics argue that fashion copyrighting could ensure certain designers maintain a monopoly on fashion trends and stifle the need for constant reinvention.

Matthew Yglesias:

Oftentimes, discussions of copyright policy hinge on hypotheticals. What if you couldn’t copyright recordings of songs? What would happen then? Maybe nobody would record new songs. Or maybe the quality of new recordings would be abysmally low. What would we listen to then? Won’t somebody think of the children?

Fortunately, in the realm of fashion we don’t need to speculate. We know what a world without fashion copyrights would look like, because we live in one today and we’ve always lived in one. It’s a world full of innovation in the field of design, and also full of various kinds of knock-off. Fashion leaders introduce new concepts, and cheaper imitators come along and follow the pack. In order to remain distinctive, the leaders are driven to further imitate. Meanwhile, everybody has plenty of clothes and styles in tie-width, skirt-length, etc. oscillate around. Yet somehow fashion designers and the members of congress who love them keep coming back to Washington looking for government-sponsored monopolies. The latest version of legislation to allow fashion copyrights has Senators Boxer, Feinstein, Hatch, Graham, and Hutchison as co-sponsors along with lead author Chuck Schumer.

Ezra Klein at Newsweek:

We’re used to the logic of copyright. Movies, music, and pharmaceuticals all use some form of patent or copyright protection. The idea is simple: if people can’t profit from innovation, they won’t innovate. So to encourage the development of stuff we want, we give the innovators something very valuable—exclusive access to the profit from their innovations. We’ve so bought into the logic that we allow companies to patent human genes.

And companies love copyright. They love it so much they persuaded Congress to pass the Sonny Bono Act, which extended individual copyright protections to the life of the author, plus another 70 years; and corporate copyrights to 120 years from creation, or 95 years from publication, whichever is earlier. That’s an absurdly long time, and it belies the original point of patents: does anyone seriously believe that a 40-year-old with a money-making idea is going to hold back because someone can mimic it 20 years after he dies?

At a certain point, copyrights stop protecting innovation and begin protecting profits. They scare off future inventors who want to take a 60-year-old idea and use it as the foundation to build something new and interesting. That’s the difficulty of copyrights, patents, and other forms of intellectual protection. Too little, and the first innovation won’t happen. Too much, and the second innovation—the one relying on the first—will be stanched.

Which is why we have to be careful when one industry or another demands more copyright protection for itself. “Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary.”

Drug development probably meets the burden of proof. It costs hundreds of millions of dollars to bring a drug to market. If Pfizer could just copy the drugs Novartis develops, Novartis wouldn’t have much reason to develop drugs.

Recipes don’t. You can’t patent dessert. Just ask Jean-Georges Vongerichten. Years ago, he created a chocolate cake with a molten core of liquid chocolate. The recipe became a sensation. Which meant it appeared on menus all across the country, with no credit to JGV. That’s a bummer for its creator, but a boon to all of us who don’t live in New York. We get to eat it anyway. And yet innovation continues apace in the food world. JGV is still a rich man. We can have our cake and eat it, too. (Sorry, sorry.)

Mike Masnick at Techdirt:

We’ve discussed over and over and over again how the fashion industry absolutely thrives without copyright protection. In fact, much of the research shows that it thrives because of the lack of copyright. The lack of copyright in fashion does a few useful things: (1) it actually helps disseminate concepts faster, creating important trends that drive the industry forward (2) it helps create important customer segmentation in the market, which actually increases the value of top designers (3) it drives fashion designers to be more innovative and to keep innovating. And all of it works. The fashion industry is highly dynamic, rapidly innovating and highly competitive. So it seems absolutely contrary to basic common sense to introduce a copyright law aimed at adding copyright to fashion.

So, of course, fashion designers and politicians keep doing it. Pretty much every year Chuck Schumer trots out just such a bill, and this year is no different. Reader Steve Phillips points us to the announcement of the bill being introduced and ReallyEvilCanine points us to a celebratory post by a professor who was involved in drafting the bill. This time around the bill has Senators Boxer, Feinstein, Hatch, Graham & Hutchison as co-sponsors, so there’s quite a bit of firepower, as they seek to build up protectionist policies that may benefit a few top designers, but will significantly harm up-and-comers. Just as we’ve seen throughout history, intellectual property protections lag innovation, rather than cause it. That’s because the top players in the space use those laws to reduce, not enhance, competition. This is no exception.

Of course, Schumer’s been unable to shove through this disaster-in-waiting the past few times he’s tried, so hopefully it goes nowhere again, but if you want to see regulatory capture in action, here you go. In the meantime, if this should actually go through, we eagerly await the first major supporter of the bill getting caught copying someone else’s design.

Reihan Salam:

In my opinion, copyright protection is a bad idea in general, but I recognize that this is not a widely shared view. It is, however, fashionable. (Drum roll, please.) Ezra Klein adds a more sober perspective in his Newsweek column:

“Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary.”

We should agree on that at the very least.

If you’re interested in these issues, I strongly recommend checking out Against Intellectual Monopoly, a book by economists Michele Boldrin and David K. Levine. You can read it for free. To get a hint of the myth-shattering that follows, the following is from the Introduction:

In most histories, James Watt is a heroic inventor, responsible for the beginning of the industrial revolution. The factsabove suggest a different interpretation. Watt is one of many clever inventors working to improve steam power in the second half of theeighteenth century. After getting one step ahead of the pack, heremained ahead not by superior innovation, but by superiorexploitation of the legal system. The fact that his business partnerwas a wealthy man with strong connections in Parliament, was not aminor help.

And it was only after the expiration of Watt’s patents that the steam engine really took off.

Advertisements

Leave a comment

Filed under Fashion, The Constitution

I Hear The Sound Of Laughter From A Soul Stuck On The Roof

Reason for the blog title here

Brian Stelter at NYT:

A United States appeals court tossed out the indecency policy of the Federal Communications Commission on Tuesday, calling it a violation of the First Amendment.

An appeals panel said the F.C.C. policy was “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.”

The ruling was immediately characterized as a victory for big broadcasters like ABC, CBS, Fox and NBC, which have been fighting the indecency policy for years.

Tuesday’s ruling vacates a 2004 decision by the Bush administration F.C.C. to step up enforcement of the indecency policy on the broadcast airwaves. Earlier that year, the singer Janet Jackson’s breast was bared during the Super Bowl halftime show on CBS, reigniting a decades-old debate about broadcast standards.

But Tuesday’s ruling deals more specifically with the F.C.C. policy toward so-called fleeting expletives. After several curse words were uttered during awards shows in 2002 and 2003, the F.C.C. concluded that a single use of an expletive “could be actionably indecent,” triggering fines against broadcasters.

Also in 2004, Congress said that the F.C.C. could fine stations up to $325,000 for each instance of indecent speech, substantially raising the penalties for a profanity that was not bleeped.

On Tuesday, the United States Court of Appeals for the Second Circuit in New York found that the policy toward fleeting expletives effectively chills speech in part “because broadcasters have no way of knowing what the F.C.C. will find offensive.”

Willa Paskin at New York Magazine:

The court’s decision will not only be a boon to awards shows, which will now be less fearful of the late-bleeped curse word, but also scripted series like Family Guy, which can now make horse-semen jokes with no fear of retribution.

Declan McCullagh at cnet:

Call it the revenge of George Carlin.

The legendary Grammy-winning comedian, who died in 2008, was slapped down by the Federal Communications Commission in the 1970s for his “Seven Dirty Words” monologue. The U.S. Supreme Court gravely concluded that the 12-minute monologue was illegal to broadcast.

But a funny thing happened on the way to the year 2010. The Internet grew even faster than the federal deficit, wireless devices sprouted like Obama stickers on Priuses, and American consumers were forced to pay for V-chips in their televisions, whether or not they wanted any.

Which is why a federal appeals court on Tuesday said that technological advances have ripped away the underpinnings of the FCC’s “indecency” regulations. Forget Nipplegate: FCC attorneys have insisted for decades that they have the constitutional authority to punish radio and TV broadcasters who dare to transmit even a few syllables from Carlin’s list of naughty words.

Jacob Sullum at Reason:

The decision cites evidence that the FCC’s arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings, and award-winning shows dealing with sexual themes. “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,” the court concludes, “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.”

Although the court leaves open the possibility that the FCC could come up with a new indecency policy that would pass constitutional muster, it strongly suggests that the Supreme Court’s justification for allowing the regulation of content on broadcast TV and radio, set forth in the 1978 case FCC v. Pacifica, is no longer valid. Given the enormous changes in the media environment since then, the 2nd Circuit notes, broadcasting is no longer “uniquely pervasive” or uniquely accessible to children: It is but one of many media options, and parents can exercise the same sort of control over their children’s viewing regardless of whether programming arrives over the air, by cable, by phone line, or by satellite. In light of these realities, it is long past time (as Jesse and I have argued) to overturn Pacifica, a step the 2nd Circuit leaves to the Supreme Court.

Mike Masnick at TechDirt:

The decision is quite interesting, in that it notes that one of the reasons why the FCC was allowed to fine indecency on TV and radio was the “pervasiveness” of those media, but that in today’s internet-connected world, it makes less and less sense, since people who don’t hear cursing on TV will almost certainly hear it online or elsewhere. On top of that, it notes that technology has given new power to parents to block access to “mature” content, such that the FCC might not have to watch over everything so carefully anymore.

Furthermore, it focuses on the “vagueness doctrine,” in noting that if a rule against certain types of speech is too vague, it can create a real chilling effect on speech, as people don’t know where the boundaries are located. And here’s where it gets fun. The decision explores how the FCC decided that some words were indecent and others weren’t without explaining why:

The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not…. Other expletives such as “pissed off,” “up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. … The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.

The court also notes that back when the FCC’s enforcement focused on George Carlin’s famous “seven dirty words,” no indecency actions were brought, because everyone knew what was and was not allowed — even if other terms were used instead:

This strategy had its limitations — it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC’s abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC’s policy was sufficiently clear that broadcasters knew what was prohibited.

The court doesn’t buy the FCC’s argument that because broadcasters used other words instead, it had to make it’s policy more vague, and notes that this shows “a certain futility” in the FCC’s quixotic campaign against indecency. And then it adds that if things are always changing, it’s not fair for broadcasters:

The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC’s indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.

The decision also notes that the FCC seems to randomly enforce its own rules:

Even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film experience for viewers” in “Saving Private Ryan,” but not in “The Blues.” …. We query how fleeting expletives could be more essential to the “realism” of a fictional movie than to the “realism” of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,” a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely profiled an outsider genre of musical experience. But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.

Finally, the court notes that these chilling effects are very, very real and can already be seen:

For instance, several CBS affiliates declined to air the Peabody Award-winning “9/11” documentary, which contains real audio footage — including occasional expletives — of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent.

The court says it’s possible the FCC could create a policy that is acceptable under the First Amendment, but this one does not qualify. I’m sure this will be appealed to the Supreme Court as well, but in the meantime, it’s a pretty big smackdown for the FCC’s attempt to fine indecency.

Doug Mataconis:

On the whole this strikes me as the correct decision. Leaving aside for the moment the issue of whether the FCC should even have the power to regulate decency on broadcast and cable television, a matter on which I happen to have some rather strong opinions in the negative, it seems wholly unfair to punish broadcasters for something said on a live broadcast by someone not under their control. It is, in fact, the verbal equivalent of the whole Janet Jackson Super Bowl mess, for which Viacom paid out more than $ 3.5 million in absurdly administered “indecency” fines.

Even if you believe that broadcasters should be held to “decency” standards, holding them responsible for things they have no control over is both unfair and, as the Court found today, a violation of the First Amendment.

Leave a comment

Filed under The Constitution, TV

Saturday Morning Is A Time Of Cartoons And French Libel Law

The review of Dr. Karin Calvo-Goller’s book by Thomas Weigend in European Journal of International Law.

Aisha Labi in The Chronicle of Higher Education:

A law professor at New York University faces trial in a French criminal court in June on libel charges, after refusing to purge an academic book review from a Web site affiliated with a law journal that he edits, Times Higher Education reports.

Joseph Weiler, editor in chief of the European Journal of International Law, is being sued by Karin Calvo-Goller, a senior lecturer at the Academic Centre of Law and Business in Israel, for a review of her book, The Trial Proceedings of the International Criminal Court, that was published on the Web site in 2007.

Soon after it appeared, Ms. Calvo-Goller wrote to Mr. Weiler, saying that the review, by Thomas Weigend, director of the Cologne Institute of Foreign and International Criminal Law and dean of the faculty of law at the University of Cologne, was defamatory. She asked that the review be removed from the site.

“Prof. Weigend’s review goes beyond the expression of an opinion, fair comment, and criticism,” she wrote in correspondence reproduced in an editorial on “Book Reviewing and Academic Freedom” that Mr. Weiler has written for the current issue of the European Journal of International Law. She deemed the review “libelous,” saying it could “cause harm to my professional reputation and academic promotion,” and provided an example of a positive review the book had received from another German professor.

Mr. Weiler refused to remove the review but offered to publish a response from Ms. Calvo-Goller, “so that anyone reading the review would immediately be able to read her reply,” an approach that “would have amply and generously vindicated all possible interests of the author of the book,” he wrote in the editorial. “I continue to believe that in all the circumstances of the case … removing the review by Professor Weigend would have dealt a very serious blow to notions of freedom of speech, free academic exchange, and the very important institution of book reviewing.”

Lauren Streib at Business Insider:

So what did the author Dr. Karin N. Calvo-Goller find to be false and defamatory in Professor Thomas Weigend’s book review? Wigend’s statement that, “…in the main part of her book she simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence.”

Apparently a pin-prick of a criticism is enough to bruise Calvo-Goller’s ego.

Read the whole play-by-play of the literary transgression at EJIL.

Henry Farrell:

Via a CT reader, this rather horrifying attempt to hold an academic journal criminally responsible (PDF) for publishing a negative book review and then refusing to suppress it. As Joseph Weiler, the editor of the European Journal of International Law describes the culmination of his saga:

… on 26 September 2008 I received a Subpoena to appear before a French Examining Judge in connection with an investigation of alleged criminal libel based on a complaint made by Dr Calvo-Goller essentially replicating the complaints in her first letter to me. … in libel cases, all investigations of the merits of the case are exclusively reserved for the Criminal Court itself and, therefore, as a direct consequence of the complaint being filed, it was necessary that I be referred to the Court for trial. The date for the trial has now been set for 25 June 2010.The review (in the European Journal of International Law ) is decidedly pungent, but (without commenting on the legal aspects,which I know nothing about) it seems to my eyes to be well within the usual norms of academic book reviewing (where a general tendency towards back-slapping congeniality is leavened by occasional fits of vigorous criticism). Weiler asks that academics who are upset at Dr. Calvo-Goller’s novel approach to managing the fallout from negative book-reviews send letters of “indignation/support” by email attachment (preferably with letterhead and affiliation) to EJIL.academicfreedom@Gmail.com, especially if they are editors or book review editors for other journals. He also asks that people send scanned or digital copies of other caustic book reviews to this address, so as to demonstrate that Dr. Calvo-Goller’s unhappy experience at the hands of a critic is nothing unusual.

DJW:

The substance of her complaints seem quite specious to this non-expert on her subject, and the review itself is a pretty run of the mill negative review. In the pretrial hearing, he was told by the examining judge that she couldn’t rule on substance and the case would be going to trial. Obviously, the idea that book review editors could be subject to criminal sanction, or even defending themselves against criminal charges, could certainly have a chilling effect on free speech and academic freedom.

As with the McDonalds case, it’s difficult to grasp why the complainant finds this particular course of action wise. Even if the book review in question contained actionable libelous claims, which seems doubtful, the notoriety of effectively declaring oneself an enemy of academic freedom will surely do more damage to her reputation than a couple of unfair critical remarks in a book review.

I’d certainly be curious to hear a defense of the “burden of proof lies on the defendant” approach to libel law on the merits, because it’s not easy for me to imagine what that would look like.

Zoe Corbyn at Times Higher Education

Mike Masnick at Techdirt:

The editor, Joseph Weiler, has written up the whole saga (pdf), including the letters between the two. He concludes by pointing out how this lawsuit seems to go against all principles of academic discourse:

I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse.

It really is difficult to see how someone could think that a slightly negative review could do more harm to one’s professional reputation than filing a criminal defamation lawsuit against the editor who published that review.

Leave a comment

Filed under Books, Education, Foreign Affairs