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TOTM In a recent article for the San Francisco Daily Journal I examine Google v. Equustek: a case currently before the Canadian Supreme Court involving the scope of . . .
In a recent article for the San Francisco Daily Journal I examine Google v. Equustek: a case currently before the Canadian Supreme Court involving the scope of jurisdiction of Canadian courts to enjoin conduct on the internet.
In the piece I argue that…
Read the full piece here.
Regulatory Comments "What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?"
“What are the knowledge, skills, and abilities you believe are the most important for the Register of Copyrights?
While undoubtedly this is a restatement of the obvious, the Register should, first and foremost, have a background that demonstrates his or her understanding of the importance of modern and effective copyright protection and its critical role in the economic and cultural health of this nation…”
“The Register should seek to ensure that all creators are able to choose the manner in which their creations are used. An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator by determining how and when to license the use of one’s creative works — is fundamental to a society’s ability to foster cultural production. The moral and economic aspects of this equation are inseparable.
It is also important for the Register to fully grasp that systems of copyright replaced private patronage as the mechanism for enabling creators to be self-sustaining. When creativity is fueled by market forces, the cultural power and potential of individuals is unleashed and society benefits. While copyright may be inadequate on its own to create optimal market conditions, it remains by far the most effective tool for fostering creativity and democratizing culture…”
Written Testimonies & Filings "Given the importance of copyright protection to the US national interest, including from an economic, political and social perspective (on which, please see our response to the Register’s request for comments, attached), we strongly agree with the proposal set forth by the Committee to reform the Copyright Office..."
“Given the importance of copyright protection to the US national interest, including from an economic, political and social perspective (on which, please see our response to the Register’s request for comments, attached), we strongly agree with the proposal set forth by the Committee to reform the Copyright Office.
First, we agree with the Committee that in order to best advance the interests of the United States — “to meet the needs of a modern 21st Century copyright system” — the Copyright Office should be established as a stand-alone office in the legislative branch, and that the Register be nominated and subject to confirmation by Congress. As will undoubtedly be articulated in other submissions, the establishment of the Copyright Office within the Library of Congress was largely an accident of history related to the deposit of copies and the Library collection. But there is little reason to continue the status quo in an environment of constant change when it no longer best serves the interests of the nation. For much of our history, while there may have been the potential for some conflict between the objectives of the Library and those of the Copyright Office, they tended to be minimal, and largely to be avoided by the Library’s general deference to the Copyright Office in matters affecting copyright policy.
As will undoubtedly be articulated in other submissions, the establishment of the Copyright Office within the Library of Congress was largely an accident of history related to the deposit of copies and the Library collection. But there is little reason to continue the status quo in an environment of constant change when it no longer best serves the interests of the nation. For much of our history, while there may have been the potential for some conflict between the objectives of the Library and those of the Copyright Office, they tended to be minimal, and largely to be avoided by the Library’s general deference to the Copyright Office in matters affecting copyright policy.
In the current digital environment, however, the intersections and points of conflict between Library priorities focused on preservation and access, and Copyright Office priorities of encouraging and protecting creativity, have grown more frequent and more fundamental….”
Popular Media Many tech policy questions remain as we prepare to greet our new President. It’s impossible to know what the tech priorities will be before they . . .
Many tech policy questions remain as we prepare to greet our new President. It’s impossible to know what the tech priorities will be before they are announced, but there are some key issues relevant to innovation that will undoubtedly be at the forefront of their minds, given the president’s focus on job growth: the future of work and of property rights online.
Popular Media There is a lot at stake in the struggle to control the proliferation of illicit material online. On one hand, criminal rings use intermediaries to . . .
There is a lot at stake in the struggle to control the proliferation of illicit material online. On one hand, criminal rings use intermediaries to traffic in illegal pharmaceuticals and to commit property theft and a host of other crimes. On the other hand, civil society advocates (and intermediaries themselves) raise the threat of mass censorship arising from attempts to impose obligations upon intermediaries that would require them to assist in deterring illegal activity.
Even after more than two decades of case l aw on the subject, questions relating to basic jurisdictional authority over intermediaries remain evergreen.
TOTM Yesterday the Chairman and Ranking Member of the House Judiciary Committee issued the first set of policy proposals following their long-running copyright review process. These . . .
Yesterday the Chairman and Ranking Member of the House Judiciary Committee issued the first set of policy proposals following their long-running copyright review process. These proposals were principally aimed at ensuring that the IT demands of the Copyright Office were properly met so that it could perform its assigned functions, and to provide adequate authority for it to adapt its policies and practices to the evolving needs of the digital age.
In response to these modest proposals, Public Knowledge issued a telling statement, calling for enhanced scrutiny of these proposals related to an agency “with a documented history of regulatory capture.”
TOTM Last week, the Internet Association (“IA”) — a trade group representing some of America’s most dynamic and fastest growing tech companies, including the likes of . . .
Last week, the Internet Association (“IA”) — a trade group representing some of America’s most dynamic and fastest growing tech companies, including the likes of Google, Facebook, Amazon, and eBay — presented the incoming Trump Administration with a ten page policy paper entitled “Policy Roadmap for New Administration, Congress.”
The document’s content is not surprising, given its source: It is, in essence, a summary of the trade association’s members’ preferred policy positions, none of which is new or newly relevant. Which is fine, in principle; lobbying on behalf of members is what trade associations do — although we should be somewhat skeptical of a policy document that purports to represent the broader social welfare while it advocates for members’ preferred policies.
Regulatory Comments This week, the International Center for Law & Economics filed comments on the proposed revision to the joint U.S. Federal Trade Commission (FTC) – U.S. Department of Justice (DOJ) Antitrust-IP Licensing Guidelines.
The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property, and, that IP licensing presents presumptively procompetitive opportunities for market actors to manage their property rights. As the proposed guidelines recognize, licensing, along with a variety of vertical arrangements, frequently allows separate firms to realize efficiencies in the production, marketing and commercialization process that are otherwise difficult, if not impossible, to achieve individually.1 As the proposed guidelines note, this translates not merely into single firms commercializing a particular discovery, but also into their undertaking a variety of licensing relationships that, for example, encourage licensees to further improve upon the original invention.
More broadly, in many cases, licensing arrangements allow inventive firms that lack sufficient capital to license inventions to firms that are better positioned to engage in the efficient production of complicated or expensive processes and products. Economic literature broadly recognizes the value of this form of specialization,2 and the proposed guidelines are to be commended for likewise recognizing this reality and generally encouraging the practice.
Although, in short, our assessment of the proposed guidelines is positive, we offer some constructive criticism in the remainder of this comment. In particular, we believe, first, that the proposed guidelines should more strongly recognize that a refusal to license does not deserve special scrutiny; and, second, that traditional antitrust analysis is largely inappropriate for the examination of innovation or R&D markets.
Filed under: antitrust, doj, essential facilities, federal trade commission, truth on the market Tagged: Intellectual property, Patent
Regulatory Comments The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property...
The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property, and, that IP licensing presents presumptively procompetitive opportunities for market actors to manage their property rights.
As the proposed guidelines recognize, licensing, along with a variety of vertical arrangements, frequently allows separate firms to realize efficiencies in the pro- duction, marketing and commercialization process that are otherwise difficult, if not impossible, to achieve individually.1 As the proposed guidelines note, this translates not merely into single firms commercializing a particular discovery, but also into their undertaking a variety of licensing relationships that, for example, encourage licensees to further improve upon the original invention.
More broadly, in many cases, licensing arrangements allow inventive firms that lack sufficient capital to license inventions to firms that are better positioned to engage in the efficient production of complicated or expensive processes and products. Economic literature broadly recognizes the value of this form of specialization, and the proposed guidelines are to be commended for likewise recognizing this reality and generally encouraging the practice.
