Wednesday, August 14, 2002

Larry Lessig quotes Bill Gates as saying:

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today. ... The solution ... is patenting as much as we can ... while this approach will allow companies like Microsoft, Apple and IBM to continue in business, it will shut new companies out of the field. A future start up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price may be high: Established companies have an interest in excluding future competitors".

The whole lecture is here. (Req Flash 5.) He's right -- patents are primarily used by big companies to stifle smaller competitors. Trends in the Federal Circuit and Congress are to favor the big companies even more.

Lessig also says that as he was rounding up big-shot economists to sign onto to a legal brief against copyright extension, Milton Friedman said that he'd only sign if the word no-brainer appeared in the brief.

Meanwhile, the US DoJ and a variety of amici have just filed briefs supporting copywright extension to lifetime plus 70 years. I just looked at the one filed by Dr. Suess's heirs. Most of briefs consists of explaining how much money they are still making, and how they would be unhappy if that money got cut off. Eg, Hollywood made a $125M Jim Carrey movie out of the 1957 book How the Grinch Stole Christmas in the year 2000.

I was struck by this sentence on p. 11: "Of the more than 50 children's books created by Amici, White's Charlotte's Web was the only book to have a children's film produced during the author's lifetime."

Dr. Suess died in 1991. The IMDb credits him as a writer for 20 movies that were made before 1991, and 3 more as a producer. Eg, the 1953 children's movie The 5,000 Fingers of Dr. T. is quite good.

I didn't get far into the DoJ brief, but it just looked like the usual boring arguments.

It starts off trying to draw significance to the Constitution using the phrase "limited times" in the plural, rather than the singular. Apparently some drafts used the singular:

On August 18, 1787, James Madison submitted to the delegates to the Constitutional Convention a list of powers to be granted Congress, which included the power "To secure to literary authors their copyrights for a limited time" and "To encourage, by premiums and provisions, the advancement of useful knowledge and discoveries." At the same time, Charles Pinckney submitted a list which included the power "To grant patents for useful inventions" and "To secure to authors exclusive rights for a certain time." [Govt report]

But the obvious explanation for the plural is that copyrights and patents were merged into one clause, and they didn't need to get the same limits. The only places where I saw it scoring points was where Lessig conceded too much:

Petitioners do not dispute that the CTEA’s term is “limited” as applied to future works. ... First, petitioners do not allege that the CTEA’s term is too “long” to be “limited.” Pet. Br. 14.

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