Moral Panics and the Copyright Wars: A Worthless Book
William Patry's new book Moral Panics and the Copyright Wars ("Copyright Wars") ranks among the worst books yet written about copyrights and the Internet--a stunning achievement, given the competition. I began it hoping for a slanted-yet-thoughtful analysis of how to reconcile the potential of both copyrights and the Internet. I got the same shopworn Scary Stories, sophomoric and droning lectures on cognition and economics, no solutions, and the self-anointed "most prolific scholar of copyright in history" venting venom like this:
[C]opyright is not an engine of free expression, but a yoke around innovation put on to retard progress by preserving existing and failed business models. (p. 157).
In other areas where a government monopoly, created to serve the public interest, is blatantly abused over a long period of time, it is taken away. (p.199).
It is the innovation of [consumer electronics manufacturers and Silicon Valley] that creates the demand for copyright owners' works. (p. 21).
The Copyright Wars must be understood as archetypical responses of businesses that are inherently non-innovative.... I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries. (p.198).
Only the most profligate "scholar of copyright in history" would make such claims. The "scholar of copyright" who "cannot think" of "a single significant innovation" in the works of, say, Walt Disney just cannot think--unlike Forbes, which just ranked Walt Disney Studios among America's 10 Most Innovative Companies.
The Irony of Mandatory Filtering in China vs. the U.S.
"Schools in Beijing are quietly removing the Green Dam filter, which was required for all school computers in July, due to complaints over problems with the software," notes this Reuters report. Even though China backed down on their earlier requirement to have the Green Dam filter installed on all computers, according to Reuters "schools were still ordered by the Ministry of Industry and Information Technology to install the web filter, which Chinese officials said would block pornography and other unhealthy content." The Reuters article mentions a notice carried on the home page of one Beijing high school that reads: "We will remove all Green Dam software from computers in the school as it has strong conflicts with teaching software we need for normal work." The article also cites a school technology director, who confirmed that the software had been taken off most computers, as saying "It has seriously influenced our normal work."
Ironically, many educators and librarians in the United States can sympathize since they currently live under similar requirements. Under the Children's Internet Protection Act (CIPA) of 2000, publicly funded schools and libraries must implement a mandatory filtering scheme or run the risk of losing their funding. As the Federal Communications Commission summarizes:
[CIPA] imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program... Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an Internet safety policy and technology protection measures in place. An Internet safety policy must include technology protection measures to block or filter Internet access to pictures that are: (a) are obscene, (b) child pornography, or (c) harmful to minors (for computers that are accessed by minors).
Of course, nobody wants kids viewing porn in schools, but CIPA has been know the block far more than that and has become a real pain for many educators, librarians, and school administrators who have to occasionally get around these filters to teach their students about legitimate subjects. Anyway, I just find it ironic that some American lawmakers have been making a beef about mandatory Internet filtering by the Chinese when we have our own mandatory filtering regime right here in the states. For example,
Tenebaum, Two-Card Monte, and the Sophistry of Professor Charles Nesson
The blog Copyrights and Campaigns has provided great coverage of the ongoing Tenebaum file-sharing case and the bizarre antics of Defendant Tenebaum's attorney, Professor Charles Nesson of Harvard Law School's Berkman Center for the Study of the Internet and Society.
Of course, when Professor Nesson first dragged his CyberOne students into Tenebaum, the blogosphere rang with copious cheering, praise, and fawning for this Champion-of-Potentially-Wronged-Students who was riding to the rescue of a student accused of the conduct that one sneering Harvard don once dismissed as "petty crime."
But how soon some bloggers forget. When Berkman-Center law professors last "rode to the rescue" in a copyright-infringement case involving file-sharing, the case was called Grokster. In Grokster, the Defendants had nominated themselves for a Darwin Award by refusing to let potential amici review the whole record, citing their fear of "a criminal investigation." Consequently, the Grokster Defendants could be defended only by public-interest amici willing to argue that no conduct, no matter how criminal, should ever subject the Defendants to civil liability for copyright infringement.
Naturally, all such argument were absurd. But they were made by 79 professors of intellectual-property law, including Nesson and other Berkman-Center law professors. Naturally, their arguments were repudiated--first, by the Grokster Defendants at oral argument, and then by all nine Justices of the United States Supreme Court.
So it should come as no surprise that even the blogosphere has now realized that in Tenebaum, things have become "serious funky." But more funkiness may follow. Nesson's procedural pratfalls pale when compared to the defects in the substantive arguments and defense strategy revealed in his papers and deliberate disclosures of client confidences.
China & Compulsory Licenses for "Unworked" Patents
Last month, Ronald Cass, the former dean of the Boston University School of Law, penned an op-ed in the Wall Street Journal about China's ongoing patent reform efforts. (For a useful summary of all the changes in the Third Amendment to China's patent law, see this report by the attorneys at the Jones Day law firm.) The op-ed focused upon on one particular change, namely the authorization of compulsory licensing for non-use of a patented technology. The idea is that if a patentee does not practice its patented invention, then the state should be able to ensure that someone else will. I thought I'd take the time to provide some background about such provisions (which I will call, interchangeably, "non-use provisions" or "worked requirements") and why China's amendment is potentially dangerous.
Watch this brief but insightful video commentary from Rich Karlgaard on "American Panic. Asian Confidence."
(While you're at it, check out Forbes.com's revamped Opinion Channel, with Tunku Varadarajan at the helm.)
PFF friend and board member John Rutledge has authored a wonderful new book: Lessons from a Road Warrior.
John has seen and done it all. How much is all? How about 15 million frequent flier miles worth. And the stories and people to match. I'll have a longer review later, but for now, if you want to learn about (plunging) asset markets, the global economy, private equity, China, non-equilibrium systems, and the "neuroscience of fear" -- you know, all the important stuff driving today's chaotic world -- along with generous, practical, and entertaining advice to young people just starting out, read the book. You will love it.
Well, it's all over. If the Olympics didn't convince you of China's growing power and the decline of the West, this nugget will:
"I can confirm that the Chinese brand Snow is now the largest beer brand in the world," says Kevin Baker, account director for alcoholic beverages at the U.K.-based market-research firm Canadean Ltd. About 51.2 million hectoliters, or about 1.35 billion gallons, of Snow were consumed last year, compared with 48.4 million for Bud Light as a stand-alone brand, the firm says.
I believe that the lasting legacy of the cataclysmic Sichuan quake will be a tectonic shift towards a freer China, an enhanced image of the Chinese government, and a renewed commitment to encourage rapid growth in the poorer central and western regions of the country. And the recent declines in Chinese stock prices have provided investors with a very attractive entry point to correct the substantial underweighting of China in the investment portfolios of most individual and institutional investors.
Contrary to the numerous, perennial -- and tedious -- warnings of a coming Chinese crash, a scary new free-market "autocracy," or even an embrace of "classical fascism," Malkiel shares my own view, that Chinese economic freedom is both real and crucial in and of itself and is in fact leading to much more political freedom:
the â€œfirewallâ€ that surrounds the internet in China has been severely breached. Countless bloggers have heaped praise on the rescue effort but have also been unafraid to offer sharp criticism of officials who supervised the construction of the shoddy schools and buildings that crumbled when the quake hit. Ordinary citizens have rushed in to help, independent of any planning by the government. The surge of patriotic fervor has even muted the voices of those criticizing Chinaâ€™s policies with respect to Tibet.
Prof. Benjamin Friedman of Harvard University has argued that economic growth eventually leads to increased political freedom. Some China hands have been skeptical that the Friedman hypothesis applies to China. The 2008 earthquake may well prove to be a defining moment in Chinaâ€™s development into a flourishing civil society with increased personal freedom and with a government that is less distrustful of its own citizens.
For 30 years since Deng Xiaoping's "reform and opening up" policy began, Western political writers and historians have misjudged China. It's been the economists, like Malkiel, who have gotten it right.
The U.S. dollar last week appeared mercifully to end its plunge. World markets cheered, and the immediate financial crisis in the U.S. abated. But this week the dollar is retesting all-time lows versus the euro and yen, and commodity prices, capital flows, and trade remain vulnerable to its movements. Inflation in dollar-linked China is rising fast, and an over-strong yen could thwart Japan's recent recovery after its painful 1990s deflation. In the U.S., currency swings are destabilizing the economy and fueling anti-trade populism. After a decade of wild instability, it's time to rethink global currency markets and monetary policies.
Our friend John Rutledge is absolutely right: the U.S. weak-dollar policy has been bad for both America and for China, who we've cajoled into constant appreciation of the yuan. This has led to all number of distortions and crises in the U.S. -- see, subprime, inflation, oil over $100 per barrel, whacked-out credit markets, etc. -- and to hot money flows into China, where speculators ride the free-money carry trade of a currency you know will go only up.
It was a mistake for China's government to give in to American pressure and begin gradual revaluation. It was a mistake for the US government to press for the changes. Devaluing your currency in an attempt to stimulate growth is a fool's game.
This Thursday morning I'll participate in a discussion of these issues at a U.S. Chamber of Commerce event on "The Declining Dollar and the Global Economy."