How To Use ‘Intellectual Property’ Properly

Okay, let's get this out there upfront: many people who read this site hate the term "intellectual property" and get very upset when anyone uses it. And we agree with many of the reasons behind this thought process. In the past, we've explored some of the alternatives, but none are really that great or useful. We admit that "intellectual property" is not a great term -- in large part because it implies something that just isn't there: mainly, economic concepts that apply to rivalrous goods but simply don't apply to non-rivalrous ones. Even so, for the most part, our response to this has been to try to use the specific name of the specific form -- i.e., copyright, patents, trademark, trade secrets, publicity rights, etc. -- rather than the generic term "intellectual property." But oftentimes that doesn't feel appropriate either. And, let's face it, most of the rest of the world still uses the term "intellectual property", and denying that is kind of silly.

I've been thinking about this a lot lately, and I think the real issue is that there are two different ways to use the term, and only one is really valid. "Intellectual property" is a useful term, but only when it refers to the copyright, patent or trademark itself and not the underlying content, invention or mark. For one thing, the only reasonable arguments for how "intellectual property" has some characteristics of actual property are the ones based on this idea — e.g. a copyright is rivalrous as it is held by a specific person or group, and it functions in many ways like a piece of property (it can be bought and sold), but the underlying song (or movie, book, etc.) is not rivalrous. Describing a company that owns a variety of copyrights, patents and trademarks as having "a portfolio full of intellectual property" makes sense; saying a music pirate has "a hard drive full of stolen intellectual property" does not. Of course, both things are still artificial — the piece of intellectual property that is a copyright only exists because the law creates it — but at least it does exist as a rivalrous thing, whereas no amount of law or enforcement will ever succeed in making content itself rivalrous.

Unfortunately, many intellectual property system supporters and maximalists frequently confuse the two, and interchangeably switch around the underlying content/invention for the copyright/patent. It's why we see ridiculous things like car manufacturers arguing they still own some of your car, or DVD makers arguing they still own part of your DVD. It's the same thinking that leads to ridiculous reports that attribute all of the economic contribution of content, inventions and trademarks (even in grocery stores!) to "intellectual property" -- allowing them to falsely imply that the "intellectual property laws" are responsible, rather than the underlying content, inventions and marks.

So it's high time to call this out and make the clear distinction. If people are going to go on using the term "intellectual property" -- and they will -- then at least point out that the content or the invention or the logo or whatever are not the "property". The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark. Then, we can look more honestly at the actual contribution of those laws and at the true nature of ownership. If GM holds the copyright on the software in your car, it has no actual ownership stake in any part of your car. We should all agree on that. But it can still own the copyright on that software -- and it can do as it wants with that copyright. But the actual copy of the software (inasmuch as that's even a discrete thing that actually exists) remains yours.

I recognize that some will fight this and continue to insist that any use of the term "intellectual property" is a bad idea, but that's a losing battle. Let's admit that there are certain property-like aspects in the legal instruments by themselves, but reject the false notion -- often pushed by those abusing intellectual property laws -- that the underlying content, invention, trademark, etc. has any property-like rights itself.

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Court Rejects Pennsylvania's Ridiculous Law That Takes Away First Amendment For Convicts

Last fall, we wrote about a very troubling law that was passed in Pennyslvania that flat out stripped First Amendment rights from any convict. The law was clearly passed directly in response to Goddard College deciding to have Mumia Abu-Jamal give a commencement speech for the college. Abu-Jamal is certainly a controversial figure, but apparently this was so troubling to some in the Pennsylvania legislature that they passed a "Revictimization Relief Act" that said if a convict's actions somehow "causes a temporary or permanent state of mental anguish," the victims of the original crime can seek an injunction against that conduct "or other appropriate relief." As we noted at the time, interpreted broadly, this would even forbid a convict from appealing their own conviction, if the victim in the case claimed that it would cause mental anguish to go through another legal process -- and thus they could be barred.

Thankfully, many stepped up to challenge the law, and a federal court has made fairly quick work of it by striking down the law as unconstitutional. The court clearly recognized that the bill was entirely about stopping Abu-Jamal from speaking:

The Act's sponsor, State Representative Mike Vereb, announced the bill on October 2, 2014, just three days after Goddard College—a small liberal arts college in Vermont and plaintiff Mumia Abu-Jamal's alma mater—announced its selection of Abu-Jamal as its commencement speaker.... His cosponsor memorandum admonished an unidentified “convicted killer” for “traumatizing the victim's family.”...

During an October 21 bill-signing event near the intersection where Abu-Jamal's crime of conviction occurred, then-Governor Tom Corbett lauded the Act for its ability to enjoin offenders whose speech distresses victims. The Governor noted that the Act “is not about any one single criminal” but was “inspired by the excesses and hypocrisy of one particular killer,” ..., transparently referencing Abu-Jamal.

The court, rightly, found that this was overhwelmingly unconstitutional ("manifestly unconstitutional," as the court says) for a fairly long list of reasons:

The court concludes that the challenged statute betrays several constitutional requirements; the enactment is unlawfully purposed, vaguely executed, and patently overbroad in scope. However well-intentioned its legislative efforts, the General Assembly fell woefully short of the mark. The result is a law that is manifestly unconstitutional, both facially and as applied to plaintiffs.

In fact, Judge Christopher Conner seemed perplexed that Pennsylvania politicians seemed to think that just because someone had been convicted of previous crimes, that had anything to do with the First Amendment questions at play:

Significantly, however, the fact that certain plaintiffs have been convicted of infamous or violent crimes is largely irrelevant to our First Amendment analysis. A past criminal offense does not extinguish the offender's constitutional right to free expression. The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive.

Furthermore, the judge recognized what an incredible chilling effect such a law is already having, pointing to some of the plaintiffs who are former prisoners who are now activists and advocates for crime- and prison-related issues.

Since its passage, the Revictimization Act has had an undeniable chilling effect on the speech of prisoners and on the behavior of those individuals and entities who rely on that speech. Although several plaintiffs have continued their respective endeavors without restraint or repercussion, ... some have limited their commentaries or been denied publication for fear of the Act's enforcement. For example, nonparty Free Speech Radio News ceased widely publishing Abu-Jamal's weekly commentaries on the radio..... Kerry Shakaboona Marshall (“Marshall”) shelved publication of his book, a memoir of his experiences as a juvenile serving life in prison without parole.... Anthony Chance (“Chance”) will publish under a pseudonym, in an effort to avoid the Act's scope.... Prison Radio, HRC, and EMAJ have continued their work without incident, but at least one member of EMAJ was delayed in presenting Abu-Jamal to his class pending review of the Act by seminary counsel.... PLN withheld publication of an article authored by Abu-Jamal, ... and PPS published a warning in its “Graterfriends” newsletter admonishing potential authors of the new risk attendant to prisoner publications.

In other words, the risk to the First Amendment was not just theoretical here. The impact and the stifling of free speech was real and immediate.

But, of course, it's not over yet. Those who supported the law are apparently planning to appeal the ruling, though one hopes that any such appeals will be slapped down just as thoroughly. Meanwhile, Mike Vereb, the state legislator who apparently has nothing but contempt for the First Amendment, has said that if the appeal doesn't work he'll amend the law and try again, and notes that he considers this "a fight" that he's going to continue. He also doesn't understand how this suppresses speech even after the judge laid it out in such great detail:

"It wasn't suppressing speech, it was suppressing harassment and revictimization of our victims," Vereb said. "This is the first ring of the bell in this fight. The victims need fighters, we're fighters."

Dude. Seriously. The judge himself put together a long list of how it was absolutely suppressing speech. It's not about "harassment" or "revictimization" just because it hurts your feelings that someone speaks publicly. How is Vereb even in office after such a blatantly unconstitutional move?

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USTR Releases Its Annual Special 301 'Naughty' List Of Countries; EFF Responds With 'Special 404' List

We've written plenty about the ridiculousness of the USTR's Special 301 list that comes out every year at this time, naming what countries are "naughty" on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this "official" list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don't "do something" (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries -- Canada in particular -- has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to "stay on the good side" of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I've pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That's because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation.

Anyway, it's that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same "big guys" as always: China, Russia and India. And it celebrates "progress" from countries that have promoted out and out censorship. For example, it praises Italy:

On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy’s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome.

This is misleading at best and insulting at worst. We wrote about those Italian "regulations," which actually gave power to regulators to flat out censor websites with no due process at all. It's not clear how the USTR considers those appropriate "due process safeguards" when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we've seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all.

Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that's the message that's being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is?

Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes:

On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide.

EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective.

While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he's facing such jail time was a terrible copyright law rushed through to appease an angry US government.

Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the “violation of [his] economic and related rights.” Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial.

Analysis

There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over "unauthorized" sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez.

And yet, amazingly, the USTR's Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn't it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn't seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism.

The Special 301 list remains a joke -- but unfortunately, it's a joke that many countries feel they need to take seriously. Hopefully, the EFF's responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn't really mean they should have to change their laws.

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AT&T Fined Yet Again For Shady Behavior, This Time For Milking Low-Income Lifeline Program

After a fifteen-year slumber, regulators have apparently decided it might be a good idea to start cracking down on rampant fraud in the telecom market. Not long ago, we noted how AT&T was finally fined for abusing the IP Relay network for the hearing impaired, intentionally turning a blind eye to scammers on the network just to haul in the $1.50 per minute subsidies tied to the network. AT&T strung regulators along for years, implementing "solutions" that it knew wouldn't work but technically met flimsy FCC requirements. As a result, simply stopping AT&T from profiting off of defrauding the deaf (it's estimated that 95% of AT&T's IP Relay traffic at one point was credit card or other scammers) only took regulators the better part of two decades.

Last year, regulators finally cracked down on AT&T for helping scammers of a different sort: crammers. Crammers had been gouging AT&T customers for most of the last decade, charging them $10 a month for garbage "premium" text messaging, horoscopes and other un-asked-for detritus. There again, AT&T intentionally turned a blind eye to the criminal behavior, in large part because the company was netting around 35% of the proceeds from the scams. Worse perhaps, regulators found AT&T was actively making its bills harder to understand so the fraud would be more difficult to detect.

This month, the FCC has announced that it has struck a settlement with AT&T and former subsidiary SNET, over charges the companies were collecting undeserved subsidies under the agency's "Lifeline" program, a low-income community subsidy effort created by the Reagan administration in 1985 and expanded by Bush in 2005. According to the FCC's findings, AT&T apparently "forgot" to audit its Lifeline subscriber rolls and purge them of non-existent or no-longer-eligible customers, allowing it to continue taking taxpayer money from a fund intended to aid the poor:

"AT&T and SNET’s failure to remove ineligible Lifeline customers from their rolls was discovered in 2013 during an FCC audit of two AT&T Lifeline affiliates. The audit found that a number of Lifeline subscribers who no longer qualified for the program had not been de-enrolled following the annual recertification process for 2012 and 2013, a process in which consumers are required to certify their continued eligibility for Lifeline. These subscribers were given one extra month of Lifeline support, and AT&T improperly claimed reimbursement from the government for this extra month. Additionally, the Enforcement Bureau found other de-enrollment and recordkeeping violations."

The FCC announcement goes well out of its way to avoid calling this fraud, but unless you believe AT&T honestly forgot to purge its rolls (pretty difficult to do in full context of AT&T's historical behavior), it's hard to call it anything but. The FCC doesn't specify how great the discrepancy was, but given the speed at which AT&T has been backing away from unwanted DSL and phone markets, the revised differences likely aren't modest. This latest fine comes as AT&T is busy trying to convince the government that there's an endless parade of amazing benefits to be had by letting AT&T acquire DirecTV, effectively eliminating a competitor from the pay TV space.

Historically, telecom regulators love slam dunk cases against small scammers, but were willfully oblivious or too timid to acknowledge the larger players' culpability. With regulators no longer napping in regards to obvious fraud by bigger telecom players like AT&T, companies have unsurprisingly started grumbling that Travis LeBlanc, Chief of the FCC’s Enforcement Bureau, is being too hard on industry and therefore not actually curbing bad behavior:

"Two telecom-industry advocates complained that LeBlanc has been successful at grabbing headlines, but less effective at actually curbing bad behavior. By not being lenient on companies that self-report violations, he is discouraging future companies from coming forward, they said. "The FCC's new approach will discourage cooperation and self-disclosure, and it's going to force regulatees to beef up on litigation instead of compliance with the rules," one industry lobbyist said. "Ultimately, that's a poor use of resources for taxpayers, and it will lead to a worse result for consumers."

Yes, doing the bare minimum to prevent AT&T from ripping off taxpayers and consumers is just an atrocious affront to taxpayers and consumers.

While overreach is certainly possible, most of the stuff LeBlanc is cracking down on is either outright fraud, or the kind of enforcement that's hard to seriously cry foul about (like fining companies for failing to report 911 outages or airing porn during prime time). By and large, LeBlanc appears to be following the lead of FCC boss Tom Wheeler, breaking FCC tradition and actually standing up to large telecom companies. If there's a place LeBlanc (former aide to California AG Kamala Harris) may overreach, it's as the FCC begins using newfound Title II authority to re-examine broadband privacy rules.

For the moment, however, it's just interesting to see the FCC no longer turning a blind eye to scams and fraud when the country's biggest telecom campaign contributors are involved, even if the fines being levied are likely a small fraction of the total money AT&T has made off of a decade of very shady behavior.

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Latest President Obama-requested cyberthreat intelligence agency may be overkill

Some security experts wonder if the Cyber Threat Intelligence Integration Center is the best use of US federal government resources.

ESPN & NFL Network Still Pretending Twitter Doesn't Exist During NFL Draft

If you follow technology news long enough and you'll be imbued with a sense of wonder at how quickly most things technology-related progress. Social media rollouts blaze ahead and become dominant quickly. The specs inside our machines continue to balloon. Brand new tech comes out and is adopted by the younger generations with an ease that seems downright impossible. Companies, because they have to, embrace the speed of new technology as well. Everything is faster, more content-rich. It seems the early adopters these days are big corporations eager to gain an edge through the technology the public already is or soon will be using.

Which brings me to this question: have ya'll heard of Twitter? Yes, yes, I figured that you have, but I'd like to know whether any of you Tweeps out there happen to know anybody at the National Football League? Because they seem to think that Twitter is a thing that can be controlled when it comes to the NFL draft. It's been a couple of years since I first laughed at the NFL for forcing ESPN and the NFL Network, two of its broadcasting partners, to agree not to tweet draft picks before they were announced on television. Two years later, a lifetime in technological progress terms, and the NFL is stilll doing this, apparently.

ESPN and NFL Network both have rights to televise the NFL draft, and, as they have in the past, this year they will show the good and just Roger Goodell that they value the product he’s bestowed upon them by not allowing their reporters to tweet picks before the commissioner announces them at the podium. That NFL Network agrees to this makes sense. (It has no choice, since it’s a glorified PR channel for the league.) What’s ESPN’s excuse?

Well, some of us argue that ESPN has nothing to do with news and is instead a self-marketing institution built on the leagues for which it broadcasts. To that end, the "journalists" are actually marketing agents, doing the bidding of the ultimate customer, the leagues, including the NFL. Taken at face value, the agreement for ESPN reporters to refuse to tweet out much-sought information they've obtained is an abdication of any journalistic ethics they might pretend to have.

But the larger question is: who does the NFL think they're fooling? After all, this scheme would work wonders to control information about draft picks...if Twitter users only followed NFL Network and ESPN employees. That isn't how this works as a sports fan, of course, meaning that anyone who wants to get quicker information on the draft will certainly have it. That renders this whole exercise pretty damned meaningless for the NFL.

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