Autumn Symposium Rakes Over Copyright and Patent Law
Pages: 1, 2, 3
Copyright--Both Better and Worse off Than You Think
In a pattern repeated over the course of the symposium, assessments of copyright law alternated between the more conservative attendees who thought it "basically works" or "can be made to work" and doom-sayers who warned that youth were coming to see the copyright system as irrelevant and illegitimate. As so often happens, I believe the truth lies at both extremes. And no one voiced the opinion that copyright was adequate to current trends, or even that it's moving in the right direction. The recent Sonny Bono Copyright Term Extension Act (upheld by the Supreme Court in Eldred v. Ashcroft) was criticized by everyone, including the register of copyrights, Marybeth Peters.
Peters, while retreating cautiously in face of certain questions, offered several intriguing opinions. For instance, when asked whether copyright law could soften to let musicians do sampling and remixing, she averred that there should be an easy way to use chunks of other people's material that are "larger than trivial" (i.e., too big to qualify for a fair use exemption) but not major parts of the original.
Peters expressed anxiety about rules for licensing music on the internet, saying that both she and Congress had failed to get the different sides to come to consensus. Those holding the licenses want every single item broadcast to be noted and paid for, which Peters called an absurdity. She declared that her concern is for making sure the "creative genius" is rewarded, and has little interest in intermediaries such as publishers and trade associations. To those who have followed the laws and court rulings, this statement implicitly criticizes a system where the intermediaries hold most of the power and drive most of the agenda.
My meetings filled in some minor aspects of Google Print, which combines the old-fashioned notion of archiving old material (which libraries have always done) to preserve it, and of applying to print books the indexing and searching technologies for which Google has become famous. I support Google Print, but I did hear suggestions at the symposium that Google has not handled the communications and publicity around it as well as it should, and that this might have made the publishers' and agents' reactions worse than necessary.
First, Google kept its negotiations with libraries mostly secret until it was ready to announce the project as a fait accompli. I don't know why they did this, but it might have been because they didn't want to divulge information to their competitors. A noncommercial site doing the project might have been more forthcoming and have been able to negotiate a compromise before the project reached this stage. The lawyers I talked to about the project (who supported Google, by the way) also said the libraries probably didn't consider the copyright issues when signing up.
Second, a lawyer for a publisher who is suing Google said he thought they were being cagey with publishers. They were negotiating the Google Print for publishers program (which the publishers approve of) at the same time as they negotiated the controversial program with libraries. They did not tell the publishers about the library program. Then they announced the two programs simultaneously, leading to a confusing situation--the publisher program had been worked out with the full cooperation with the publishers, whereas the library program was a surprise and generated deep opposition among publishers.
Patents: Little to Celebrate
Now I've warmed up by discussing the problems with modern copyright, so that I can really let loose thunderbolts on the issue of patents. This issue intruded into nearly every forum at the symposium. No one in my hearing had a kind word for business patents, which Mark Webbink, deputy general counsel at Red Hat, said "puts us out of touch with the rest of the world." (Webbink writes about patents for Linux Magazine from time to time.) But the news from the rest of the field is bad, too. Even defenders of software patents admitted the system was out of control. Universities are starting to patent fundamental research, which had always been part of the canon of public goods open to all researchers.
One doctrine circulating among patent experts is that of "rational ignorance," which one panelist expounded as, "it's rational to do a poor job approving patents because most patents don't matter." Somehow, if this opinion holds, somebody has to learn to identify the "few patents that do matter" before the burden falls on the poor innovators who gets sued over them. This becomes a problem particularly because the Supreme Court, which used to reject all patent cases, now hears them regularly, and not being experts on patent law, "they screw it up in some cases" (an exact quote from this same panelist).
Beth Noveck, director of the Institute for Information Law and Policy at New York Law School, proposes that all patents go through a period of public scrutiny before being approved. "The proposal is to replace the patent examiner with a network of mutually self-rating peer review experts," she writes. This proposal seems to many of us to be a marvelous idea, a satisfyingly Cluetrain Manifesto way of involving people who have a stake in a knowledge domain. It will offer chances for anyone with interest and knowledge in the patent's area to bring prior art or other problems to light.
Software patents will not go away, even though opponents have had extraordinary success holding off official approval of software patents in the European Union. In addition to court rulings that ensconce them more and more firmly in the U.S. patent system, it's hard to draw a line separating software from other processes.
