Quick Program Note and Where I’ll Be

April turned out to be a dormant month (for air) on Hearsay Culture, what with baby, baseball and bronchial activities. So starting Wednesday, we’ll be back on track. Thanks for your patience.

Meanwhile, this week I’ll be at the Computers, Freedom & Privacy conference in Montreal. I will attempt some live-blogging and meeting some potential guests for the show . . . and maybe I’ll see you there!

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Yahoo’s Disgrace

Sadly, Yahoo! is no stranger to morally questionable business decisions relating to their dealings with the Chinese government. Now, in the wake of the most recent lawsuit alleging that Yahoo gave up emails to Chinese authorities (which Yahoo apparently does not dispute) that resulted in a dissident’s arrest, imprisonment and torture, we find this utterly flabbergasting defense of Yahoo’s behavior from Yahoo’s spokesman Jim Cullinan: “The Chinese judicial system is not transparent such as the U.S. system, therefore you don’t know really what’s happening.” I actually saw Cullinan deliver this nonsense on Channel 7 here in the Bay Area, and it isn’t easy to surprise a New Yorker, but I was stunned.

Does Yahoo think that we’re all idiots? This defense is, in a word, outrageous. Aside from suggesting that Yahoo could not anticipate how the Chinese government would deal with a dissident (to link to examples would be a waste of electrons and energy; no hyperlink is necessary), the very fact that the system is not transparent is precisely why such information should never be turned over. Am I shocked that a US corporation would do business in China, even to the point of playing ball with a brutal regime? Of course not. But I hope for better. And I don’t think that this is the “engagement” that we want if this form of public diplomacy is a euphemism for aiding the very elements of a government that engagement is supposed to alter.

To that end, I was hoping that Yahoo might learn from previous criticism of its behavior. But, as Cullinan’s defense reveals, I was wrong. I do use Yahoo’s services, and have even paid for some. Unless there is significant change in their positions, both on the ground and in words, I am done giving Yahoo money. I will likely use what I have already paid for, and that’s it. Migration to other platforms is, in the context of a business willing to stoop to these levels, perhaps the only way that I can hope to influence change in such an atmosphere.

Yahoo should be ashamed; but it appears that it is not. But, if interested (or indeed, if I am wrong, and I hope that I am), I invite a spokesperson from Yahoo on Hearsay Culture to explain just what is happening inside Yahoo.

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Show #35 — Prof. Cass Sunstein — is posted

I am pleased to post Show #35, my interview with Prof. Cass Sunstein of the University of Chicago Law School, discussing his book “Infotopia.” Cass, like Richard Epstein, is someone whose writing I have read for many years. I’ve been a subscriber to The New Republic since the late 1980s, and I have regularly read his commentary on Constitutional law. With “Infotopia,” Cass enters a space whose population is growing — those who are skeptical of Web 2.0 utopianism and the abilities of social sharing. I do not agree with all of Cass’ conclusions, but his logic and analysis is compelling. I hope that you enjoy the discussion, and the insights and experience shared by this prolific analyst of the law and society.

I tried to configure some challenging musical interludes:

(1) There Is an End/The Greenhornes/Dual Mono
(2) Change Of The Guard/Steely Dan/Can’t Buy A Thrill
(3) ‘Tain’t Nobody’s Biz’ness If I Do/Jay McShann/The Last of the Blue Devils
(4) Working On A Building/Old And In The Way/Breakdown

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A Captured Smile

Recognizing that this is not strictly (or even loosely) related to Hearsay Culture, I am posting a first: the first picture that I’ve been able to snare showing Noah smiling, which is a recent development. Noah is about 9.5 weeks old, so please pardon the indulgence.

I have fought the urge to post more, but I thought this was worth it. To the extent that you’ve heard slurred words, longish questions, or snoring (ok, that hasn’t happened yet on air), now you know why. But its all worth it.

OK, back to the show . . .

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Show #34 — Prof. Terry Fisher — posted

I am pleased to post Show #34, my interview with Prof. Terry Fisher of Harvard Law School, discussing his book “Promises to Keep.” Terry’s book is a very well-balanced analysis of the entertainment industry’s business model and use of intellectual property rights. As Terry says, he takes the industry’s claim to property rights seriously, and through that prism evaluates where the industry is and is headed. As a topic that is very relevant to all who consume entertainment, whether on KZSU-FM, iTunes or the theater, I enjoyed discussing the state of the industry, as well as its intellectual property claims and Terry’s proposed solution, with one of the experts in the field. I hope you enjoy listening in!

This was an easier week for choosing music; hence the absent music from this show:

(1) Free Man in Paris/Joni Mitchell/Court and Spark
(2) Friend Of The Devil/Jerry Garcia/Lonesome Prison Blues
(3) Only The Song Survives/John Hiatt/Crossing Muddy Waters
(4) Hold On, Hold On/Neko Case/Fox Confessor Brings the Flood

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Hearsay Culture Show #33 — Prof. Josh Lerner — posted

I am pleased to post Show #33, my interview with Prof. Josh Lerner of Harvard Business School, discussing his co-authored book “Innovation and Its Discontents.”

It is easy as a lawyer, and one in legal academia, to cloister oneself within the same world of your own disclipline or range of interests. While I may cloister myself as I write this post, plugging away on the computer even as all around me are engaged in conversation (yes, I want to post ASAP!), I have attempted to not cloister myself in the realm of this show. So I was excited to have Josh on the show, and discuss with an economist the rules and impacts of patent regulation. Josh, as is evident from the dustjacket of the book, pulls no punches in his criticism of the patent regime in the United States. He similarly calls out what he sees as major problems with the patent system as currently constructed — from the broad ambit of its application to the failures of the PTO to patent that which should not pass a prior art test — in the interview. So I hope that you enjoy the discussion, and as always, I welcome feedback.

Yet again, I am challenged to identify patent law music. So here’s what I came up with:

(1) When I Paint My Masterpiece/The Band/Greatest Hits
(2) Yea! Heavy And A Bottle Of Bread/Bob Dylan & The Band/The Basement Tapes [Disc 2]
(3) What is and Should Never Be/Led Zeppelin/BBC Sessions [Disc 1] [Live]
(4) Lawyers, Guns And Money/Warren Zevon/Genius: The Best Of Warren Zevon

Here, you may need to get into the lyrics to see any (if there is any) connection. Regardless, enjoy!

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Live Blogging IP Counterfactuals at MSU Law, Installment Two

I’m back . . . and I’ll attempt to live blog the third copyright panel. I got no angry emails, so I’ll assume that I’ve done an innocuous, irrelevant and/or good job . . . and I have thus proven my previous caveat that I will be unable to cover everything!

First presentation: If copyright were really about authors, personal use would be irrelevant and fair use would be integral to copyright, rather than a defense. Originality is derived from source, and copyright can have a “second author”, as opposed to patent (which has no “second inventor”). Inventions are not a mode of discourse with another, but copyright is. Authorship is a mode of communication, and as compared to trademark, a mode of discourse. Fair use is not an exception, but a user right. Copyright is closer to trademark than patent as a mode of communiction.

Archiving digital code: we are urged to archive our digital heritage. It is noted that judges in various countries, like New Zealand, Australia and Canada, like to make analogies to cookery (i.e., recipes for rice pudding) in their analysis of copyright. Object code should be protected sui generis, with 10-15 year terms based upon commercial use and allowing for the archiving of digital culture.

Image enhancements — who is the author of a satellite photo? How is it protected? Interesting consideration is to protect it as a database. A collection of spatial data. Data moves from satellite to receiver — so is it a work only when manipulated at the end (by the processor). If its just data that has not been organized into a copyrightable form, then it is copyrightable? Where is the author? Is creativity in the manipulation of the sattelite, organizing data? If its just data, its not fixed. Copyright gets “lost in space.”

Last presentation: what if employees owned their copyrights? For example, what if authors could terminate ownership of their copyrights by others (i.e., director of film takes back ownership of film that he produced?) We might not see impact on industry, but profits of old works may cover cost of new works, but impact on public access could be more significant.

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Live Blogging IP Counterfactuals at MSU Law, Installment One

I figure that I’ll take my first shot at live-blogging, having been inspired by the Bay Area Blawgers event on Wednesday at Santa Clara [thanks to Prof. Eric Goldman of Santa Clara Law School for setting it up]. The target of this experiment is the conference at MSU Law, “What Ifs and Other Alternative Intellectual Property and Cyberlaw Stories”. I am not a fast enough typist to cover everything, so the disclaimers (and as a litigator, there must always be disclaimers) are that I am not covering everything (or indeed every talk), and may not even hit all of the points raised by the speakers. This is also stream-of-consciousness blogging and not a transcript; reflection on my text displaced by the need for speed — what is live-blogging if I post it a day later (is an hour too long?) So any and all misrepresentations of any points raised are my fault, and I specifically blame myself for never taking a typing class. Finally, I am skipping the names of the speakers for brevity’s sake; they are not nameless professors, of course, and you can find all of their names on the conference webpage. Enough caveats and disclaimers for you? Enough to undermine the exercise’s usefulness perhaps, but my live and published experiment is about set to begin.

Before this, I should add a humorous note. Prof. Peter Yu, the host of the conference, is using his computer to monitor time (which will make it much easier for moderators like me). His computer verbally announces a two minute warning, and at the end of each speaker’s time, says “Your time is up. Please stop.” Hearing a machine voice order humans to stop speaking and communicating with each other — and those humans actually following the command — is humorously unsettling.

The first panel is discussing “Free Speech, Privacy and Virtual Reality.” The antecedents of the right to privacy are discussed, raising the question of whether Samuel D. Warren’s daughter’s nuptuals impacted its development; the conclusion: privacy right would have developed regardless of these events. Virtual reality and its augmentation is discussed next — the question of “virtual occlusion” and the repurcussions of such actions (like what I’m doing right now) in the real sphere. Can one opt out of tech progress? “Wikiality” — a new word for me — is introduced. What if people could post data on your real space, like your house? This is happening in flickr, where people can mark pictures loaded onto a page. So, like much of IP law, the question turns to control. Who (or what) is to control when the “virtual displaces the real?” [I’d say, ask Linden — how far can the code go?] Lastly, what if Congress and Supreme Court were tech-savvy in 1995? It is suggested that the explosion of pornography on the Internet would have been impeded were these entities more sophisticated at the time. The courts’ description of the Internet has influenced its creation.

Next up is patents, which is in the unfortunate position of following a discussion on porn from the previous panel [alas, logistics prevented live blogging of that first talk]. First what-if: what if patents were not published? Publishing is a great source of prior art, but the concern is the content of the patents. We need incentives for applicants to include more non-patent references. Finding references outside the patent system would be a useful outcome. What is the role of patents as prior art? Create network that allows for greater disclosure. [A lack of all relevant info such as to allow for full evaluation of patent applications is a concern, as is transparency in IP].

Business method patents is discussed next. Are “user innovators less likely to need patent incentive to invent?” They are more likely to invent based upon first-mover advantages. What if there was a business method use exemption? Benefits: (a) focuses on concern about exclusive control, (b) neutralize trivial patents; con: more trade secrecy?

Here’s an interesting question, next: what if the GPL (w/o royalties, allow derivatives, provide source code, licensing under GPL) has been patented? Could not have been done in 1991, because no business method patent regime. This is the only impediment to its patentability in 1991. But in fact there are patent applications for GPL licensing, but none have issued thusfar. Biotech is next: Patenting seed has not incentivized innovation. Development of new seeds has happened for many reasons, and patenting is just one. Lastly, what if economists ran the PTO (they don’t?) Economists at FTC are encouraging similar reforms to system as Jaffe & Lerner in Innovation and Its Discontents [note: I just interviewed Josh Lerner; show will be posted very soon]. FCC economists have done well importing “ivory tower theory” into policy. Auctioning spectrum worked; and they thought about the type of auction, fighting collusion. “PTO has barred the doors to economists.” Academic economists are barred, because they are a “threat to their way of life.”

Last patent presentation: “What if Joe Meigs Wrote the Non-Obviousness Statute?” Few in the room, including me, know who Joe Meigs is. Sec. 103(a) is vacuous; indeed, the last sentence protects dumb luck, obviousness is not explained (i.e., you figure it out). Here’s a statement to help us with obviousness: “The best test of what persons of routine ingenuity can do is what they have done.” (Automatic Devices Corp. v. Cuno Eng’g Corp., Hand, J.) Who is Joe Meigs? He proposed, in 1948 to Congress, that obviousness is a question of fact, proof of non-obviousness is found if, among other conditions, it fills a long-felt want. Advantages: it encourages people to fill long-felt wants, defy conventional wisdom in the art. Not-hindsight prone, and encourages stronger narratives that would be pulled into the “long-felt wants” story. But Meigs did not author 103(a).

OK, well now its time for lunch. I am moderating the copyright panel after lunch, so I won’t be blogging for a while. Hope this is useful!

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Where I’ll Be

I’ll be at a few events in the coming week . . . maybe I’ll see you there!

March 28 (tonight!): The High Tech Law Institute at Santa Clara University Law School is sponsoring a gathering for Bay Area legal bloggers/blawgers. I’ll be found in the Wiegand Room, Arts & Sciences Building, Santa Clara University, from about 6-7:30 PM.

March 30-31: Michigan State University College of Law is hosting a fascinating conference entitled “What Ifs and Other Alternative Intellectual Property and Cyberlaw Stories”. I’ll be moderating one of the panels on copyright law.

If I’m really good, I’ll blog on these events . . .

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show #32 — prof. eric goldman — posted

I am pleased to post Show #32, my interview with Asst. Prof. Eric Goldman of Santa Clara Law School (SCLS), and Academic Director of the High Tech Law Institute at SCLS.

As I mentioned on the show, trademark law is a new topic for Hearsay Culture. And yet, as Eric ably demonstrated, it should not be a stranger to us. As Eric mentioned on his blog post regarding the show, we went into some detail regarding several areas of interest, namely domain name registration, on-line marketing and trademark law, and anti-adware laws. As always, Eric’s comments and observations were both insightful and thought-provoking, and I thoroughly enjoyed interviewing Eric. I might add, as I’ve gotten to spend some time with him at conferences (both driving to and attending them), that he’s a very nice guy to boot.

So I hope that you enjoy Show #32!

Yet again, I have been musically challenged: trademark music? So here’s the playlist, and like Bob Dylan, I’ll just throw it out there and you decide what it means . . .

(1) Search/String Cheese Incident/Outside Inside
(2) Lotus Flower/McCoy Tyner Big Band/Uptown / Downtown (Live at the Blue Note)
(3) Crepuscule With Nellie (Take 6)/Thelonious Monk/Monk’s Music
(4) Strode Rode/Sonny Rollins/Saxophone Colossus

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