"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Thursday, November 17, 2005

A Mean Idea to Call My Own 

Back when I wanted to be a lawyer - which is to say, before I actually became a lawyer (now I want to be a fireman, or maybe an astronaut) - I spent a lot of time studying, writing, and thinking about intellectual property and, in particular, copyright. I haven't had much to say about IP in this forum because (a) it does not figure as prominently in my thinking as it once did, and (b) because there are any number of fine blogs where readers can go to hear about the subject from those more learned than I.

However, I have recently run across two posts that have brought me back to thinking about IP. The first of these comes from eMediaWire, by way of Hellblazer:
Further to a policy of publishing patent applications eighteen months after filing, the U.S. Patent and Trademark Office is scheduled to publish history’s first “storyline patent” application today. The publication will be based on a utility patent application filed by Andrew Knight in November, 2003, the first such application to claim a fictional storyline.

Knight, a rocket engine inventor, registered patent agent, and graduate of MIT and Georgetown Law, will assert publication-based provisional patent rights against anyone whose activities may fall within the scope of his published claims, including all major motion picture manufacturers and distributors, book publishers and distributors, television studios and broadcasters, and movie theaters. According to the official Patent Office website, provisional rights “provide a patentee with the opportunity to obtain a reasonable royalty from a third party that infringes a published application claim provided actual notice is given to the third party by [the] applicant, and a patent issues from the application with a substantially identical claim....”

Regarding the utility requirement, “The case law of the Court of Appeals for the Federal Circuit has established that virtually any subject matter is potentially patentable,” explained Jay Thomas, Professor of Law at Georgetown University. Further, “Due to the broad scope of patentable subject matter, novel storylines may fall within the [utility requirement],” said Charles Berman, Co-Chair of the Patent Prosecution Practice at Greenberg Traurig LLP.

The real issue? According to Berman, “Non-obviousness probably presents the biggest challenge to patentability” because minor variations on a central theme may generate so many different storylines. Nevertheless, Knight asserts that his claimed storyline meets all statutory requirements, including nonobviousness.

The fictitious story, which Knight dubs “The Zombie Stare,” tells of an ambitious high school senior, consumed by anticipation of college admission, who prays one night to remain unconscious until receiving his MIT admissions letter. He consciously awakes 30 years later when he finally receives the letter, lost in the mail for so many years, and discovers that, to all external observers, he has lived an apparently normal life. He desperately seeks to regain 30 years’ worth of memories lost as an unconscious philosophical zombie.

Will Knight’s claimed storyline pass the rigors of nonobviousness and issue as a U.S. Patent? If so, the stakes are high. According to Thomas, “Given the robust scope of patent protection provided by the Patent Act… storyline patents potentially provide their owners with a significant proprietary interest.”

Now, patent is not my area, and it is important to note that the patent in this case has not yet actually issued. As Charles Berman mentions (and notice that he is employed by Greenberg Traurig, Jack Abramoff's former stomping ground; isn't that special?), this application may have problems getting by the non-obviousness requirement. However, it is interesting, and maybe a little horrifying, that no one quoted here seems to think that a storyline is per se outside of the statutory subject matter of patent.

The second piece that caught my eye was this one, from Matt Stoller at MyDD:
One of the key tenets of a progressive society is an acknowledgement that we stand on the shoulder of giants. Arts, sciences, culture - these are systems which demand both revenue models and certain protections to the public at large. So we have patents - government granted monopolies - but they expire. We have copyright restrictions, but there's a doctrine called Fair Use protecting the public's right to parody, excerpt, and creative derivative works. Without it, you could probably successfully sue any blogger for excerpting a news article.

The internet shows just how important a sharing society is, with the web largely built upon shared source code, interlinking content, and users who are both consumers and producers of content at the same time. Of course, this was true before the internet. Hip Hop for instance was formed largely on sampled disco riffs, and the technology industry liberally borrows across itself and academia. But the internet as a medium is beginning to show the sketches of a radically different and decentralized economy and society.

Big content companies - including some of the biggest donors to the Democratic Party - do not like this pattern of usage. After all, they are top-down massive entities that thrive on a mass consumer relationship. They want to not only profit from the music they produce, they want to control how the public listens, samples, and participates in its culture. They are attacking Fair Use, and have over the past hundred years or so attempted to eviscerate it. This is picking up steam, and right-wing think tanks are joining up with the content companies.

The Progress and Freedom Foundation is questioning the doctrine of Fair Use.
Fair use has outlived much of its usefulness in a market with ever-increasing digital offerings for sale at varying price points, Progress & Freedom Foundation Senior Fellow James DeLong told a congressional subcommittee today.

This is a radical statement. It means that the public no longer has the right to participate in its culture.

Exactly. It is no secret that certain commercial concerns are hostile to the very idea of fair use, and have made significant efforts to get around it (shrinkwrap or "clickwrap" licensing agreements come immediately to mind). Never before, however, have I seen such a full frontal assault on the very notion of fair use.

Imagine a world where you don't buy books, you only license them. Among the terms of the license is a requirement that the reader does not quote any part of the book in a review without the express permission of the publisher (such permission, presumably, to be granted only in the case of positive reviews). Preposterous? Maybe - but you'll excuse me if I'm not entirely sanguine.

Intellectual property law is important, especially in our digital age where the cost of the first unit can be quite large but the marginal cost of each succeeding unit is effectively zero, the artificial scarcity created by operation of law is essential to allow the recovery of initial costs. Any overreaching in this area, however, can have enormous consequences - after all, knowledge is power. If such knowledge is available only to those who are willing to pay for it, then the balance of power in our culture shifts in a frightening manner. This stuff matters - and, as Matt Stoller alludes to above, the Democrats have not exactly been lining up to fight the good fight.




The Democrats will get there.
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