While many people are familiar with copyright issues concerning things like music, movies and software online, there's another community that also has been quite active: the knitting community. For a few years now there's been an ongoing battle between hobbyist knitters who have uploaded patterns that others feel are infringing on their copyrights. Now it appears that issue is touching on the tech/sci-fi community as well. Boing Boing points us to the news that a fan of the famed BBC show Dr. Who had created some knitting patterns of his own that would enable anyone to knit various characters from the show. This isn't a case where he was uploading someone else's patterns -- but he had created his own. The BBC, however, flipped out and told him to remove all such knitting patterns as they infringed on the BBC's copyrights and trademarks. This seems like yet another case of overly aggressive enforcement of intellectual property rights because someone can, not because it's a good idea.

It's nearly impossible to see how a fan getting people to knit versions of Dr. Who characters somehow diminishes the rights of the BBC. All it's doing is enabling fans (who are also into knitting) to express their fandom. If anything, the BBC should be encouraging this kind of fan support, rather than trying to stifle it and shut it down. It's stunning that after all these years, people still don't realize that helping fans express their feelings towards something is a good thing, rather than infringement.

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While it looks like the attempt to get Rick Frenkel, better known as the "Patent Troll Tracker" into court on a separate patent-related dispute has gone nowhere, there's an interesting side dispute as part of this that touches on the age-old debate concerning the border of blogging and journalism. Frenkel told the court that since the Troll Tracker blog was a side project, not an effort of Cisco, and since he was, effectively, a journalist in writing it, he could not be compelled to testify since it "would result in a serious detriment to Frenkel's future ability to gather and disseminate news."

However, Frenkel's nemesis, patent attorney Ray Niro responded by scoffing at these claims, and ticking off the reasons why Frenkel should not be considered a journalist. Unfortunately, in doing so, Niro displays a rather profound ignorance concerning what it means to be a journalist (one would hope that his work with patent hoarders is not so sloppy). In the link above, Joe Mullin does a good job picking apart Niro's points, but let's take a closer look. First, Niro says Frenkel is not a journalist because he's unqualified:

"Frenkel has no degree in journalism; no professional training as a reporter; and has never been employed as a reporter or journalist."

If that's a requirement to be a journalist these days, then an awful lot of folks doing serious journalism work wouldn't be considered journalists either. There are no professional requirements to be a journalist. Second, Niro claims that Frenkel wasn't very nice in his posts, highlighting the Troll Tracker's rather amusing "haiku" contests, that tended to make fun of patent hoarders and (sometimes) Niro. Of course, there's nothing in engaging with your readers with amusing haiku contests that makes you any less of a journalist. Third, Niro says that since Cisco was Frenkel's employer, he's clearly not a journalist but something of a corporate mouthpiece. Of course, there's little evidence to suggest that Frenkel was doing anything on behalf of Cisco, but more importantly, (as Mullins points out) biased reporting doesn't disqualify you from being a journalist. If it did, how many "journalists" would still be around? And fourth, Niro claims that Frenkel was guilty of various journalistic ethics violations, such as writing anonymously (someone better alert the Economist) and not revealing his sources (always knew that Woodward and Bernstein weren't real journalists).

The simple fact is that you don't need a degree or a certificate to be a journalist these days. You just need to report the news -- and no one can deny that Frenkel did that. In fact, he was much more of a journalist than many "official" journalists these days in that he reported on news that wasn't getting covered anywhere else and did some pretty hefty investigative work on some to try to work out the details behind some of the patent hoarding company shell games. In fact, since he took down his site, the type of news he reported has been sadly missing from the discussions on patent law and patent reform. On that note, it's probably also worth pointing out that Frenkel said in his own filing on the case that he's planning to return to blogging at some point in the future.

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Copyright and patent law is supposed to act as incentives for the creation of new content or inventions. Yet, as we've pointed out recently, there's little economic evidence that it does so. Instead, the evidence suggests that stronger intellectual property laws seem to come after the fact. In other words, when there is little IP protection, there is often quite a bit of creation and invention -- and then those that did that creation and invention decide that they want to protect it retrospectively. That's not the purpose of IP law, but it's what seems to happen. And, look no further than China to see it happening again. China, of course, is notorious as a haven for intellectual property infringement, which (not surprisingly) has resulted in business model innovation. However, now that China is hosting the Olympics, it's suddenly worried about making sure the video of the games will be copied in an unauthorized manner (found via Against Monopoly). Note the obvious irony. You can walk around malls in parts of China and buy any kind of unauthorized software, music and movies for next to nothing... but when it comes to China's own content, suddenly copyright is a big deal. And, of course, it wasn't copyright that acted as the incentive for China to host and show the Olympics -- but now the country is using it to protect the content. Copyright is being used for protectionism, not as an incentive.

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While it is a bit troubling that the Department of Homeland Security has had some computer security problems recently, it's difficult to see exactly how that's solved by legislation. But, of course, to politicians with a legislative hammer, every little problem looks like a nail. Thus, we've got politicians proposing cybersecurity legislation that would require Homeland Security to decrease the number of successful cybersecurity attacks against its network. While that's certainly an admirable goal, it's not as if DHS was purposely letting the attacks go through before, and will suddenly shape up just because of this new law.

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Tom wrote about the Skype/GPL case yesterday, and it's worth noting (as many in the comments did) that partway through the hearing, Skype gave in and agreed to drop the appeal and abide by the lower court ruling. That's a good thing. However, from the comments on Tom's post, it appears that many seemed to have misunderstood what he wrote, believing he was (a) supporting Skype or (b) disparaging GPL. It appears to be neither. He pretty clearly states that it's a "desperation" play by Skype, and so it's not at all surprising that Skype gave in after the court indicated that Skype's arguments were not convincing. Tom also does not appear to be disparaging the GPL -- he notes how it helped encourage much more openness in software development.

His actual point, which got less attention, was whether the power of the GPL specifically is waning as other licenses gain prominence -- and, specifically, whether it would be so horrible if the GPL somehow went away. He's not suggesting that's a likely or ideal scenario -- just questioning what would happen. And, the point he makes is that while the GPL paved a very important path, we're seeing other options now appearing, and that's a good thing for open source. Developers now have a much bigger choice among licenses they can choose to adopt, and that competition can lead to interesting innovations. It's not an anti-GPL post -- but recognition that the hopes and dreams of open source software development are no longer tied to the success or failure of the GPL. And that's a good thing for both the GPL and open source.

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William Patry points us to an interesting draft of an article by Prof. Shyamkrishna Balganesh (of University of Chicago Law School) for the Harvard Law Review concerning how the courts rarely take into account the real purpose of copyrights in deciding what copyrights allow people to do. The basic premise is that copyright is designed solely to be an incentive to get people to create new works -- and, as such, some of the powers that the courts and Congress have added to copyright seem to go well beyond that core purpose. Specifically, Balganesh suggests that copyright shouldn't prevent others from using the content in ways that the original author never foresaw, as those uses clearly should not have influenced the original incentive to create, since they were never even thought about. While Patry gives some compelling reasons why Balganesh's current argument is a bit flawed, it does bring up a variety of interesting and important questions concerning what copyright really should be doing.

Most specifically, this argument is going to become more and more important as content creation increasingly moves away from a "broadcast" model to a many-to-many "communications" model. In such a world, things like fair use, derivative works and whether someone should "own" all downstream uses become much more important:

None of copyright's current doctrinal devices enable courts to circumscribe a creator's entitlement by reference to the incentive structure that the institution is premised on. As a direct consequence, creators (and their assignees) are often thought to be 'rightfully entitled' to any revenue stream associated with their creation, whether or not it owes its existence solely to the creator and regardless of it having been developed well after the creation of the work.... Individuals will (and can) not factor the unforeseeable consequences of their actions into their ex ante reasons for acting. Consequently, limiting copyright's grant of exclusivity to uses of the creative work that were foreseeable to a creator at the time of creation is likely to better align creators' creative decision-making with their incentives.

In other words, just because your work is used in part by another to create something new and different, it often doesn't make sense to give the original creator control over that work -- especially if it has nothing to do with the original incentive to create. Somehow, I'd imagine that JK Rowling would disagree.

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At least 10 states have tried to ban the sale of violent video games to kids, and in each and every case, the laws have been found to be unconstitutional. Yet that doesn't stop state governments from trying... and apparently the politicians at the federal level (election year!) want in on the action too. They're proposing a bill that doesn't exactly ban the sale (which is probably how they hope to get around the Constitution questions) but which requires stores to ask for an ID as well as to post details about the ESRB ratings. This seems like yet another "protect the children" political move by politicians up for re-election. But, it's becoming increasingly clear that these types of laws aren't necessary, no matter what constitutional questions they may raise. Beyond the absolute lack of evidence concerning problems from kids playing violent video games, it appears that the industry has taken care of the problem by itself. Self-regulation by stores has resulted in a significant decrease in underage kids being able to buy mature video games. But don't let facts get in the way of those pushing for these types of laws. They're applauding the new bill, just as they demonstrate that they don't even understand what they're campaigning against.

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If you've got a spare 40 minutes to an hour, it's worth watching patent attorney Stephan Kinsella's presentation: Rethinking Intellectual Property Completely, as given in March. The video is embedded below, and it fits in nicely with my ongoing (yes, there's still plenty more) series of posts on intellectual property. It's pretty rare to see a patent attorney explain so lucidly the problems with patents (and copyrights): He does a very nice job ripping apart the "property rights" arguments that some, especially some libertarians, use in favor of patents, explaining why that doesn't make sense. It's an excellent presentation, and well worth watching.

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theodp writes "Americans are a real problem, explains Bank of America in a just-disclosed patent application for County Assessment. 'A typical American employee,' complains BofA, 'demands a high salary, good benefits, a good work environment, vacation time, and other job-related perks.' Such problems are solved with BofA's patent-pending methodology, which eliminates 'demanding work force' problems by identifying another country for a corporation to relocate its work force to."

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In the past we've joked about the (supposed) fact that the song "Happy Birthday" remains under copyright, due to a copyright originally held by sisters Mildred and Patti Hill, the claimed original authors of the song. However, William Patry points us to a fascinatingly detailed research paper into questions surrounding the copyright. What comes out of it is pretty strong evidence that the copyright is not valid -- but it's never gotten far enough in court to have a decision rendered. Plus, it sounds like many aspects of the "history" of the song really appear to be close to a myth.

The sisters in question may have written the melody, but they almost definitely did not write the lyrics (their original copyright was on a different set of lyrics, "Good Morning to All"). As for the melody, there's plenty of evidence to suggest that it was actually taken from a series of extremely similar songs. So, there's a good chance they wrote neither the melody nor the lyrics. Also, there are numerous questions concerning whether or not the copyright holders correctly followed the various rules required of copyright holders at the time, suggesting that even if there were a legal copyright at some point, it's long since expired. And, of course, there's even some evidence to suggest less-than-legal tactics involved with transferring around some of the interest in the song. Amazingly, however, the legitimacy of the copyright has never been determined in court, and it now generates over $2 million per year. Over 1% of the money that ASCAP distributes to songwriters is for this one song, even though it may not be legitimate. Somehow, I doubt this is what the Founding Fathers intended when they wrote the Constitution.

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