Copyright and the Consitituion

Let me start by making it very clear that I am no constitutional scholar. I am the furthermost thing from a lawyer, as I am an engineer. So please forgive me if I go too far in applying plain common sense and a literal Interpretation of words and grammar to this topic.

 First of all, let's start with the United States Constitution. Article I, Section 8, Clause 8 of the United States Constitution (often referred to as the "Copyright Clause") forms the basis on which Congress established the U.S. Patent and Copyright law. That clause is as follows:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

I have two questions concerning the constitution and copyright.

Question 1

How does this clause establish that Authors (and Inventors for that matter) can sell their rights?

And even if we grant that Authors and Inventors can sell their rights to their writings and discoveries, how does that grant congress the power to allow companies and individuals who are not authors nor inventors to continue to sell these exclusive rights?

 This is important when you consider how Apple, Microsoft and others just purchased Nortel's patents. Nortel was assigned these rights by actual inventors (mostly their employees, one presumes). But now Nortel is selling them to Apple and Microsoft. In the end, these "Discoveries" are controlled by parties that had nothing to do with the development of these Discoveries. These parties can now deny other companies access to these Discoveries, or extract payments for access to these Discoveries, and all without having done anything to "promote progress".

 Ignoring the fact that there is little way to justify this state of affairs in the context of promoting progress, it remains that this clause seems to have been expanded to mean:

To promote the Progress of Science and useful Arts, Exclusive Rights to Writings and Discoveries may be created by Authors and Inventors. These rights can then be freely assigned and traded to other individuals and corporations without limitation.

Now, I likely didn't do the best job with capturing what patent and copyright law does. But without question the reality of copyright and patent law requires a huge stretch of the Copyright Clause.


Question 2

 How can a copyright term of an Author's life + 70 years be constitutional?

 Here the law is quite clearly creating something beyond the Copyright clause. By definition an Author is *not* granted exclusive rights to their writings by current copyright law, because by law the exclusive rights must extend past the death of the Author!

It would seem reasonable to assume that the "limited Times" referred to in the constitution should at least be possible for an Author to possess.  The assumption that these rights might pass from the Author to other parties isn't the same as a law that requires the rights to pass to other parties.  In other words, it seems to me that the Copyright Clause implies that it should be possible for an Author to possess the rights granted.   If there is no way that "limited Times" of the law can be granted "to Authors" (because, after all, they must be dead for 70 years before they expire) then surely there is a conflict between the constitution and the law here.

Right?

The Death of the Business of Journalism

(I would like to post a link to the following comment, but can't figure out how:)

Jeff Jarvis - 9/18/2011 7:04 AM -
Preparing for my first class of the season. This is the session in which I brainwash all the incoming students. I used to go through a litany of numbers about the fall of the business of journalism. I figure I no longer need to do that. Stipulated, your honor. Today I want to talk about how they must reconsider -- though not necessarily reject -- all assumptions about news: business, form, relationship....

Just curious if we are seeing the fall of the business of journalism, or just change back into a model of journalism that once existed in the past? Consider that Benjamin Franklin could make a huge stir in his day by inserting his work into a paper published by his brother.... With the advent of technology over the last 75 years, no such small scale operation could make such an impact. But the technology didn't stop there, and now again a blogger can again make a huge impact by posting their work on their own site.

I used to make the same kinds of observations about privacy. Nobody in a small town is surprised when people they don't really know still know about their business. With the move to cities (mostly due to the automation of food production, i.e. technology) people became accustom to the fact that there are too many people in a city for anyone to track what they personally are doing. Then technology kept rolling, and suddenly we can automate the collection of information about what people buy, where people go, how much they spend, and what catches their interest. Once upon a time everyone knew all about what you did because you lived in a small town. Now everyone can know what you do even if you live in a city with millions of other people.

Technology isn't so much changing the rules as it is rolling back the clock.

I know this is simplistic, but there is a truth here. The production and sharing of information was once a personal thing, and within small groups of people and without expensive technology, it has a certain empowering and at the same time confining nature. When we farmed out the production and sharing of information to corporations (that could afford the technology that individuals could not), the production and sharing of information took on a particular nature that was both impersonal, and maybe more manageable as a business. Then as the technology makes the process once again a personal thing, we find that the production and sharing of information becomes increasingly unmanageable as a business.

In other words, as individuals become more empowered to produce and share information, the competition to do so increases, and the ability of business to manage the production and sharing of information declines. But it isn't because people are doing something fundamentally evil by "breaking the rules" when they share information. It is because the process by its very nature is becoming more personal.

The business of journalism is going to be more diverse, with more competition, and with more attention to the fact that information is now both produced at a personal level, and shared at a personal level.

Intellectual Property

You gotta love http://mimiandeunice.com.  Here is one I saw today:

Open Source is a funny thing. Clearly it is a total ripoff for someone to gain ownership of the contributions of other individuals and other companies who are doing the real work that makes a Open Source project successful!!  And everyday, another Open Source project suckers more individuals and companies into donating their work to make yet another Open Source owner rich!

But is this so?

As a project/product/application is developed, hard problems are encountered. And sometimes a really nifty solution is recognized and implemented. Then what does the funding group, the company/organization/agency  do?

Typically the company/organization/agency will grab said "nifty solution" (which isn't part of their core goals/aims/product), and stamp it as "Our Intellectual Property."

This does not increase the value of the company/organization/agency, but rather serves to lock up the solution.

99.75 percent of the time (according to an Internet source), "Nifty Solutions" built to solve particular problems within a project get frozen in place. They don't get reused by other parts of the organization, because the other parts of the organization don't want to have to come to understand that code. They cannot be modified because there isn't any budget to support any problems that might arise from modifying the code. And these "Nifty Solutions" can't be used outside the organization because they are stamped "Our Intellectual Property".

So other "Nifty Solutions" are built. Again. And Again frozen in place. Over and over. Sometimes new "Nifty Solutions" are built just to replace past "Nifty Solutions" nobody understands anymore.

So how to save the "Nifty Solutions" from their frozen fate?

Open Source.

The power of open source isn't so much that someone can own it and reap the financial benefits of owning/controlling all of the contributions made, though to some extent they can and do. The real power is that as a contributor, an individual or company can bend an Open Source project to better address the problems they face in their own applications/products/programs. And then later they can use the better versions of the project in other parts of the organization. They can hire people that are already trained to understand the Open Source project.

As users of Open Source, we the developers get to benefit from updates to solutions, which we may or may not integrate into our projects as we see fit. We can be more productive. When we can deliver to our "Over Lords" (whoever actually pay us) "Free" performance improvements and "Free" new features, it makes us developers look good. We get paid better because our knowledge makes us more valuable.

Those of us that use Open Source as we move through their career can KEEP our knowledge, and can continue to apply our knowledge TO OTHER projects. Even if we change the company/organization/agency that we work for.

Contributors and users of Open Source gain by using and contributing to Open Source. They have better choices of jobs (i.e. they know Linux, Hibernate, Tomcat, Eclipse, Maven, etc. etc.) Th work of contributors does not get frozen as "Our Intellectual Property" by an organization that is never going to leverage it further. Contributors thus don't have to build new versions of the same solutions over and over to the same problems and watch their solutions get frozen in place, yet again. Once contributed into Open Source, a solution can be leveraged over and over, can be extended, and can even be rewritten when the problem becomes more fully understood.

And the funny thing is that most Open Source projects do not result in huge financial windfalls for the owners of the projects. They may hope for those windfalls, but until they come they are the ones scheduling work, testing, the releases, feature development, etc. The winners day in and day out are the users and contributors to these projects who get to see their work used and applied and built upon.

Nobody wants to see their code frozen in place. Write a good solution within a corporate or government context, on a project, and watch it Freeze, even as you type. This is because the suits at the executive levels can't understand why they should not claim any and every "Nifty Solution" as their own 'Intellectual Property".

And at the same executive management types will not understand why their "Intellectual Property" does not scale, does not grow, cannot be used by other parts of their organization, and does not generate those golden "license fees". But wait! They can avoid costs by using Open Source project X! They can agree to that.

And that is why so many developers contribute to Open Source.

Stimulating the Economy

There are not many things we can do that reduce the government's size, reduce liability of businesses, lower the costs of goods to consumers, increase competition, stimulate research and development, increase investment in businesses, and create jobs.

All without the government spending a single extra dime. In fact, we are talking about cutting government here.

Eliminate patents.  Altogether, and across the board.  If it is good for banks, why isn't it good for high tech?  For entertainment?  For drug companies?

Here are my observations:

1) Without patents, we would see the creation of more new companies.  New companies could immediately go into businesses that today which they currently avoid because of the risk of being sued for patent infringement by hosts of Large, established businesses. AMD, ADM, Exon, Ford, Sony, Microsoft, Apple, IBM, CISCO, and thousands of other companies in every industry use patents to limit competition and delay new technologies.  Their advantage as established businesses is in their product line and their execution of their business.  Their disadvantage is that they don't want to disrupt the same, and patents allow them to protect the status quo.

2) Healthcare costs would be reduced.  Drug costs would plummet. Drug companies would have to compete with generics from day one. Research would open up where key patents prevent innovation. Recent audits of Drug companies how shown that they have vastly inflated the costs of developing new drugs. Drug companies are raking in the dough, while we foot the bill. Mostly the tax payers pay for research and drug development (by way of government grants and subsidies) and Big Pharma profits. No patents, no more free ride.

3) Smart phones would become legal. You didn't know your smart phone was illegal? Well given that to be legal you would have to have a license to a host of patents held by a huge range of companies, such as Apple, IBM, HP, Google, Microsoft, Motorola, HTC, Nokia, Sony, Samsung, CISCO, AT&T, Verizon, Sprint, AMD, Intel, and literally dozens if not hundreds of other companies. Nobody has such rights, and in fact many of the above companies (and others in the field) are suing each other over their various smart phone patents. Obviously nobody has the rights to produce a smart phone. We have smart phone technology despite patents, not because of them.

4) The elimination of patents would lower product costs.  License fees for intellectual property are a drain on our economy and a drain on innovation, and a drain on companies trying to produce products, and thus a drain out of YOUR pocket. Prices for many products would immediately drop without the risk of patent lawsuits and license overheads.  Money paid on licenses fees is money that is diverted from hiring people, from investing in one's business, and increases the cost of doing business. 

5) Innovations would come to market faster, not slower. Why? Because a patent never gives you the right to make a product. A patent can ONLY give you the right to keep someone else from making a product. That is because every modern product is covered by hundreds if not thousands of patents, mostly held by big corporations. A single patent can force a product out of the market, but just because you have a patent does not prevent hundreds of other companies from blocking your product with their patents.

6) Companies would create more jobs. Want companies to INVEST into their business? Then take away the government imposed barriers to competition! No company can afford to wait until next year to advance their business if another business can spring up and take away their customers! Patents allow companies to keep their prices high and their bank accounts full as they meter out the investments into their operations. Competition in the actual execution of business is what we need to get companies off the dime.

Does it make any difference to vote Democrat over Republican?

"IF you cannot see any differences between the GOP and Democratic party, you have absolutely no power of enlightenment, critical thinking or observation. "

The difference between the parties is like the difference between cutting your wrist with a dull and rusty knife, or a dull and rusty spoon.  Absolutely there are differences by definition, but there are no differences in their actual functionality when applied to the task at hand.

Pick some issues, like abortion, education, stem cells, the war, health care.  The parties have some defined differences in their positions.  But these are issues raised to gain office without any significant difference to the people.  Status quo reigns for abortion and education.  Corporate interests win for everything else.

As a result, I am sorry to say, I cannot see any real difference between the Democrats and the Republicans.  Both are in the pockets of special interests, even if those special interests do vary a little bit.  So we can define a few differences.  Can we define the similarities?

Do both parties submit legislation mostly written by special Interests?  YES
Do both parties pander to superficial political issues so as to avoid discussing Debt, Corporate Welfare, our continued loss of rights and privacy,  the need for corporate trust busting, etc?  YES
Do both parties lie and slander their opponents in their political ads? YES
Do both parties misrepresent the issues facing the government to gain political advantage? YES
Do both parties vote to promote their party's power over voting in the interest of the people? YES
Do both parties persecute party members that vote for their constituents interests over their party's interests? YES
Do both parties slant laws and districts to promote their party's interests over the interests of fair representation of the views of the people in their elections? YES
Do both parties stack the laws in favor of the parties over Independents and third parties? YES
Do both parties block campaign reform that takes away the advantage of money in elections? YES

Is any one candidate guilty of every one of the above offenses to the people? No.  But this is EXACTLY why voting for parties instead of voting for candidates is so horribly wrong.  Because both of the major parties ARE guilty in EVERY election of EVERYONE of these offenses against the people.  And just because parties cannot completely corrupt every candidate for office does not mean they do not succeed in corrupting nearly all elected officials of their party over time.

In fact, nearly everything the parties agree on from session to congressional session is designed to maintain the status quo and favor corporate influence in government (on which the status quo is built).

I am no different than any true blue party believer, at least in a way.  I want to think that voting one party or the other is the way to advance my own welfare too.  However the evidence that I have no such choice is way too overwhelming to deny.

Senator Kay Bailey Hutchison Believes Monopolies are the Answer

I wrote to my Senator, Kay Bailey Hutchison, asking that she withdraw her support from Bill S 3828 IS, the so called ‘Innovative Design Protection and Piracy Prevention Act’.  Here is what she said:

Dear Friend:

Thank you for contacting me regarding copyright protection. I welcome your thoughts and comments on this issue.

Copyright protection has been central to America's prosperity and job creation. Movies, books, computer software, television, photography and music are among our unique American products and some of our most successful exports. United States industries depending on copyright protection employ nearly 4 million workers and produce over $65 billion of our exports - more than agriculture and automobile manufacturing.

Protecting content in a high-technology age is a new and daunting problem, and copyright protection is an important challenge as the broadband revolution offers even more far-reaching possibilities and opportunities. With new speed and interactivity, the entire store of movies, music, books, television and raw knowledge can be made widely available. I believe copyright protection is a foundation of innovation, and copyright law should work to ultimately protect the best interests of consumers. Intellectual property is the creative core of the information age. I will keep your views in mind should the Senate consider legislation addressing this issue.

I appreciate hearing from you and hope you will not hesitate to keep in touch on any issue of concern to you.

Sincerely,

Kay Bailey Hutchison

United States Senator

http://hutchison.senate.gov

Now the CBO looked into the kind of statistics she is quoting here, and couldn't find any credible source for these numbers.  Basically, she is quoting the content industry here.  What, is she really just a stooge?  It doesn't matter what a special interest says, a Senator SHOULD look at the numbers and demand that they be justified by facts.


Here is the link to the CBO's take on copyright.  THEY couldn't find a source for these numbers.  THEY found that these numbers do not take into account harm to the market from strict copyright enforcement.  THEY found that these numbers do not take into account benefits to the market (More hardware, more software, more Internet access).

On one point she is right.  As computers become more powerful, the old way of doing things is going to become increasingly impossible to enforce.  If movies can be shared on a whim, how are you going to stop sharing?  If information can be shared on a whim, how are you going to stop learning?  And exactly what is to be gained anyway from protecting huge, expensive, massive corporations whose only value add to a digital product is that they can distribute it.... Wait the Internet can do that!  Maybe they can provide studios... Wait!  The hardware to do that is dirt cheap and can be done by the artists.... That they can control the markets?  Wait!  Why should we let them?


The content industry could make content easily available TODAY for a REASONABLE price.  The reason they do not is that they want HIGH prices, not FAIR prices.  Piracy isn't driven by people's desire to steal content, but by a lack of reasonable ways to access content legally, easily, and safely.  Hollywood's income set records last year.  More is being spent on music then ever before (even if less is being spent on recordings).  The solution to the problem of high technology is competition and free markets.  It is not fighting useless battles to regulate technology because we do not want to let people to have access to the products and services it allows.
All of this is fine, but had NOTHING to do with the email I sent Senator Kay Bailey Hutchison.

The Fashion industry in the US is the largest and most powerful in the world WITHOUT this bill.   The only thing that copyright can do is allow the Fashion Industry to be dominated by large corporations.  I hate to be cynical here, but the only benefit I can see to Senator Kay Bailey Hutchison is that large corporations give more money to campaigns.

Obviously emailing her directly didn't do any good, because she didn't even try to address the need for this bill.  This is just a form letter telling me why she votes for the content industry, i.e. she takes them on their word at best, or supports them for their campaign contributions at worst.


I can understand why I just get a form letter when I write her.  She hasn't time to actually read what her constituents have to say.  But she ought to at LEAST generate a form letter that is on topic for a bill she is sponsoring.


Maybe public pressure can do some good? 


Ha ha! just kidding!

Credit Card Reform....

A consumer's payment history and average account balance is a typical justification for raising interest rates on credit cards and debt.

But at the same time, these companies make their most profits from customers who pay more fees, maintain higher balances, and pay higher interest rates.

The justification generally given for raising rates on such customers is that they represent greater risk than more disciplined customers.  I would like to challenge that assumption.

The fact is, over time, the sum of interest and fees paid to the creditor reduce that creditor's risks.  For example, a history of paying a bill 5 days late each month (along with the associated late fee) adds to the creditor's return on the said account.

Clearly over time, the creditor can document the return on a given account.  And clearly as the return increases on an account, the risk of that account decreases.

So take as an example an account with an average balance of $1000 over five years.  If this account has an interest rate of 20 percent, then after five years the return on that account has been $1000.  Let's throw in an average of 3 fees of 30 dollars per year (overlimit fees, late payment fees, etc.).  Assuming that the account is in good standing at the end of the five years, the return to the creditor is $1450 ($1000 in interest + $90 per year in fees).

The observation is that credit card companies will almost universally increase the fees on the customer with the fees while at the same time make nearly 50 percent more revenue on the same customer!

The simple reform I would suggest is that credit card companies be required to calculate the Return Total (RT) on every account,  just as they are required to calculate the APR on every account today.

RT = total of all Interest + all fees paid by the consumer.

Then, quite simply, the interest rates of any balance < RT be limited.

What limit would be fair?  5 percent over prime for an unsecured debt?  10 percent?  But surely interest rates like 29 percent or more are absolutely unjustified.  And once a consumer has paid such rates over time, what does such a consumer gain?  Shouldn't there be some return to a customer who pays such rates over time?

The obvious justification of limiting interest rates in this way is the observation what matters to the profit of the credit card company is the ratio of the money they are paid to the money they have loaned.  While credit history, credit scores, driving records, and payment histories might be reasonable tools by which to set an initial interest rate on a loan, what really matters over the life of an account is the money it makes for the company.

A customer with a poor credit rating and poor payment record may be suffering from a host of influences (illness, tragedy, depression, volatile income, etc.) that do not necessarily reflect on their honesty or ability/willingness to pay.

This is a simple and objective means of insuring a customer gets credit for their actual worth to a company (i.e. their contribution to the company's profit) rather than allowing credit card companies to gouge people making an honest effort to pay their debts.