Intellectual Property

Felix Salmon has a great piece responding to a WSJ puff piece on the American trademark troll company that has stolen the name “Ugg boot” then used “intellectual property” laws to impose the absurd claim that the only genuine Uggs are those made in China.

The world would be better off if intellectual property were abolished, or at least scaled back to the more modest claims of the 19th century. The attempts of the US government to defend IP monopoly rights in their most extreme form are one of the many reasons American “soft power” is such a perishable commodity.

Having knocked Mark “digital barbarism” Helprin around in a trio of posts – in one of which I remarked that the guy should probably listen to EconTalk to learn that libertarians are actually skeptical about the merits of copyright extension – I am duty-bound to report that Helprin was just a guest on EconTalk. [click to continue…]

Much digital ink has been spilled on Ross “I Would Do Anything For Love, But I Won’t” Douthat’s review of Helprin’s “Digital Barbarism”, but no one–except sage Unfogged commenter Witt–has noted what may be the very most annoying part: the insertion of pointless sexism into a fine xkcd cartoon. A cartoon, I might add, that Douthat does not even bother to actually cite by name. Read the comic here. Now feast your eyes:

One of the more trenchant cartoons of the Internet era features a stick-figure man typing furiously at his keyboard. From somewhere beyond the panel floats the irritated voice of his wife.“Are you coming to bed?”
“I can’t,” he replies. “This is important.”
“What?”
“Someone is wrong on the Internet.”

How, might I ask did Douthat know that the voice in question is that of an irritated wife? And what marks the stick figure as that of a man? Oh, right, the unmarked is always male, right? It’s true that xkcd often depicts female stick figures as having longer hair, but this is not invariably so. Verdict: douchebag.

UPDATE: my husband informs me that brilliant unsung CT commenters have been all over this is comments to his post. But the point stands.

I doubt that this is exactly what Ross Douthat had in mind, but I have been thinking for a while about one version of extending the duration of a limited-scope copyright. I’d support a proposal that gave Disney unlimited duration ownership of Mickey Mouse and similar characters, both for economic and political reasons. The political reason is straightforward: if Disney got its own side deal, they would have no reason to keep up the push for indefinite extensions of copyright for books and other things I actually care about.

The economic reason is that Mickey Mouse is not a character in a black and white cartoon produced in the 1920s (and cribbed off someone else, IIRC), and his copyright protection does not (except incidentally) act to restrict people who want to reproduce or adapt Steamboat Willie today.

Mickey is, in the terminology of the industry, a franchise. Disney puts millions into producing and promoting Mickey every year, and reaps even more millions as a result. I think it’s plausible to claim that each individual franchise of this kind is a natural monopoly, and that we would be less well served with multiple Mickey suppliers, as opposed to competing franchises like Bugs Bunny (there’s an analogy here with the debate over sporting teams and leagues which I’m too lazy/busy to work out in full). So, I’d be happy to allow Disney, Warner Bros, DC, Marvel and so on to have permanent rights over their characters, as long as they kept on using them.

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The strong showing in the EU elections by Sweden’s Pirate Party is the outcome of yet another Pyhrric victory for the strong IP movement, which succeeded, a couple of months ago in securing prison sentences for the Swedish operators of filesharing site Pirate Bay. This galvanised about 7 per cent of Swedish voters into supporting the Pirate Party, which reflects the typical feelings of Internet users: hostile to intrusive and aggressive IP, concerned about privacy for individuals and households, in favour of transparency for corporations and governments. These feelings are, of course, diametrically opposed to those of the elite groups that have historically driven policy on these issues. In the light of this public reaction, and the absence of any corresponding electoral support for the IP lobby, governments everywhere will think twice before endorsing criminal prosecution of IP violators.

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If you’re interested in the relationship between ideas, interests and institutions, the development of intellectual property law provides a fascinating (somewhat self-referential) case study. The intellectual debate has been running hard against strong IP [1] for a long time, and changes in technology have not only made copying and reproducing all kinds of material much cheaper and easier, but have revealed, on a scale much larger than before, the benefits that can be realised from free access to ideas.

Meanwhile the extension of IP rights, and the expansion of powers to protect them has rolled on as if none of this was happening, at national (DMCA), bilateral (as a standard condition of US-driven free trade agreements) and global (TRIPS) level.

However, there are some positive countervailing developments, one of which has a summer fellowship attached (CT isn’t a job board, but this is the kind of opportunity that might be missed through the usual channels).

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Via “David Levine”:http://www.againstmonopoly.org/index.php?perm=1253, it appears that George Mason University is “being sued”:http://www.courthousenews.com/2008/09/17/Reuters_Says_George_Mason_University_Is_Handing_Out_Its_Proprietary_Software.htm for over 10 million dollars by the owner of EndNote (which happens to be Thomson-Reuters).

The complaint states, “Dr. Daniel J. Cohen, Associate Professor, Department of History and Art History, and the director of GMU’s Center for History and New Media, developed Zotero, which is a freely distributable, open-source software based research tool that allows users to gather, organize and analyze sources, including citations, and freely share the results with others.” The Center for History and New Media release “a new beta version of Zotero to the general public” on July 8. Reuters adds, “A significant and highly touted feature of the new beta version of Zotero, however, is its ability to convert – in direct violation of the License Agreement – Thomson’s 3,500 plus proprietary .ens style files within the EndNote Software into free, open source, easily distributable Zotero .csl files.”

Now, I’m obviously not an intellectual property lawyer (fwiw the “Wikipedia article”:http://en.wikipedia.org/wiki/Reverse_engineering on reverse engineering, which may or may not be reliable but is certainly more reliable than me, suggests that suits over interoperability are of dubious legal merit). But I am an academic, and thus part of EndNote’s core end-user market. And I say that, regardless or not of whether it’s legal, this is a bullshit move on Thomson-Reuters’ part. There are a lot of academics out there who have used EndNote in the past and created styles for the journals that they submit to etc. EndNote’s owners are clearly worried that these academics will be tempted to move their styles from EndNote to a software package which in my view (and I’ve used both) is clearly superior. This is a no-brainer. There is _no significant innovation or value-added_ to EndNote’s specific file format. Nor is there reason to believe (given the existence of Zotero) that protecting this file format and EndNote’s purported intellectual property rights over it will encourage innovation in this particular marketplace. On the broad social merits, Reuters’ attempted shakedown is indefensible.

Nor is this as trivial an issue for academics as it might seem. As Scott has “suggested”:http://insidehighered.com/views/2007/09/26/mclemee “in the”:https://crookedtimber.org/2007/09/26/zoteromania/ “past”:https://crookedtimber.org/2007/12/12/archival-zotero-fication-or-possibly-vice-versa/#more-6498 Zotero and projects like it are at the heart of an effort to bring something like the semantic web to academia. Zotero combines bibliographical database management with social tagging and other fun stuff – it is gradually becoming a platform through which academics can share metadata and other interesting things with each other. Which means that this battle is likely to have long term consequences in determining whether or not new forms of academic collaboration are likely to be controlled by academics themselves, or take place through some kind of commercially controlled intermediation, with all the forms of stupidity that are likely to go along with that.

For my part, I’m going to refuse to use Reuters’ software in future, strongly discourage graduate students from buying EndNote, and try to get this message out to my colleagues too (at least those of them who aren’t using Zotero or some BibTex client already). If I taught any classes where Thomson printed relevant textbooks, I would be strongly inclined not to use these texts either. I encourage you to do the same (and, if you’re so minded, to suggest other possible ways of making it clear to Reuters that this kind of behaviour is intolerable in the comments). People have argued that the music industry has screwed up badly by suing its customers – whether that’s true or not, makers of academic bibliography software should be told that suing universities for what appear to be entirely legitimate actions is not likely to do their reputations any good.

NB- post corrected shortly after publication for bone-headed error.

The latest issue of the _Modern Law Review_ has an “article”:http://www3.interscience.wiley.com/cgi-bin/fulltext/120751054/HTMLSTART (by Phillip Johnson) about copyright law in the UK and US [access may depend on whether you or you firm or institution has a subscription] that suggests that it is harder for someone to give up a copyright than you might think. It would appear to have the implication that even where the creator of a work explicitly dedicates that work to the public domain, their estate might later revoke the license and seek to restrict use, demand payments etc. Alarming (but interesting) stuff. The conclusion:

bq. This article has shown that copyright owners cannot cause their copyright to cease to exist by dedicating it to the public. It is true that US authors may dedicate their US copyright to the public and in so doing cause it to cease to exist, but such a dedication will not have the same effect in relation to the equivalent UK copyright. In contrast, UK authors cannot take any steps which will cause their copyright to cease to exist. Instead, these dedications create licences, which can be withdrawn at any time. Such a withdrawal will bar new users from having access the work. But of more concern is that in England and the United States (and in Scotland, where the formalities for contract or promise are not satisfied) this will also terminate any rights existing users have by reason of the dedication. In which case, only where the conduct of copyright owners is so unconscionable that they are estopped (or barred) would the dedication have any continuing effect. This means that despite the desire of authors to dedicate their works to the public domain, the boundaries of that domain, uncertain as they already are, remain outside their control.

Or so I was back in 1999, at least according to this Groklaw thread. If only I had known.

I just finished Gregory Gibson’s “Hubert’s Freaks”:http://www.amazon.com/exec/obidos/ASIN/0151012334/junius-20 (subtitle “the rare book dealer, the Times Square talker and the lost photos of Diane Arbus”). It was one of those strange books which sounds interesting but then has you thinking you made a mistake in starting, but suddenly hooks you and has you reading to the end. Gibson tells three intertwined stories: first, that of Bob Langmuir, a neurotic Philadelphia-based antiquarian book-and-miscallaneous-stuff; second, more briefly, that of Diane Arbus, her career, her photographs, suicide and posthumous rise to cult status; and, uniting the other two, Hubert’s Museum, a Times Square freak show (complete with bogus African tribespeople, amputees, tattooed men &c.). Arbus had become involved with the people at Hubert’s in the 1960, and especially with the black couple known as Charlie and Woogie who ran the place, and had taken a whole bunch of pictures there. It is these pictures that Langmuir discovers chez another dealer, amid a pile of other paraphenalia. Part of Gibson’s story is Langmuir coming to terms with what he has, and then struggling to get the difficult (to understate the case considerably) Arbus estate to authenticate the material so that he can bring the pictures to market. But Langmuir is also an archivist of African-American history and he is fascinated by the people at Hubert’s and by the comprehensive phonetically-spelled diaries that Charlie kept for most of his life. Gibson does an excellent job of stitching the various narratives together and using them to evoke a strange and marginal side of America. In passing he gives us some interesting insights into how the market for art photography got started (a combination of scarcity of other art objects giving rise to a need for new outlets for the connoiseur’s passion and institutional hype from curators like John Szarkowski at MoMa and critics like Sontag).

(When I bought the book on a recommendation, I hadn’t realised that it had only recently come out. In fact the story is still short of a denoument as Okie, the Nigerian dealer from whom Langmuir bought the trunk, is suing on the grounds that he was somehow illicitly deprived of valuable items. Since _caveat vendor_ would seem to be to relevant principle for trades between dealers, and since Langmuir did the work of recognising the Arbus material and then establishing authenticity, it is hard to believe the Okie has a case. But where (possibly) millions of dollars are at stake, it is probably worth him trying it on. Pending resolution, the Hubert’s archive can’t be sold.)

Speaking of public intellectuals, Siva Vaidhyanathan gave a talk here a couple days ago on privacy and surveillance, developing the ideas here. (For one thing, he now prefers “Cryptopticon” to “Nonopticon.”)

Siva thinks we should stop our Foucauldian worrying about Bentham’s Panopticon. He says he’s lived in the Panopticon, in New York, where there are lots of visible cameras everywhere (when I lived in one of the home counties, where it is said you can go all day without being out of CCTV range, I knew the feeling). Siva points out a lot of the cameras aren’t maintained, monitored, or even attached to anything; that’s not the point of them. They’re not there to watch you, they’re there to make you think that you’re being watched. Such reminders (your call may be monitored) are supposed to get you to become your own social superego.

On balance, Siva seems to think, this is pretty harmless. The point of the Panopticon is to get you to behave, to hide your real self, to conform. About which we can note two things: one, if you’ve been to London or New York, you see that in the real Panopticon people get their freak on just fine, thank you very much. And two, to the extent that it does work, the Panopticon actually reinforces privacy—getting you to hide your real self draws the boundaries around that real self. What we really need to worry about is unannounced, concealed surveillance: the NonCryptopticon.
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I’ve been reading with great interest “Henry’s”:https://crookedtimber.org/2008/03/12/free-public-choice/ “posts”:https://crookedtimber.org/2008/03/12/free-everything/#comments on Open Access publishing in academia, and want to add a thought by considering this issue from the perspective of what I will call ‘the South’ — basically most (but not all) universities in developing countries. When debating the costs and benefits (not just economic, but broader) of commercial versus open access journals, there does seem to be a benefit that I find particularly important, namely that open access could, at least in the long run, contribute to closing the global inequalities in access to education. And it can also help to improve the quality of the papers being produced by scholars living and working in the South, which in turn increases their chance of being published in what we consider quality journals, which would be good not just for their carreers, but also for global dialogues.

This is not just a theoretical thought. If the information I get from (associate) editors of journals who explicitly encourage submission of papers from the South is representative, then the problem can be sketched like this: Scholars living and working in the South are submitting papers that contain interesting empirical information about the areas they live in, or interesting interpretations and analyses of issues that are different from the analysis one would hear from a typical ‘Northerner’. Yet these papers are not up to date with recent theoretical developments or other relevant published literature, and are also not written in the ‘style’ of mainstream academic articles. So almost all these papers get rejected. (Of course there are, in absolute numbers, enough exceptions; but if we’d look at percentages, I’d think this is a fair sketch of the problem).

Clearly this is not a fair game: these authors have to meet our quality standards but they are working under much harder conditions (like power cuts), and with only a fraction of the resources we are having at our disposal (not just money, but also books and journals, and the quality of the education they enjoyed themselves). In short, the access barriers to academic journals are one significant factor contributing to global academic inequalities. One more reason to support open access.

“Tyler Cowen”:http://www.marginalrevolution.com/marginalrevolution/2008/03/public-choice-o.html responds to the discussion on open publishing.

I don’t envision the free access system as the status quo but free. Papers would be ranked directly in terms of status and popularity rather than ranked through the journals they are published in. Ultimately there wouldn’t be journals and this would make a big difference as journals are the current carrier of selective incentives and status rewards. It would be easy to refuse to referee, since you wouldn’t fear being shut out of publication of that journal; I suspect refereeing might die. And if status were attached to the individual paper rather than the journal, who would bother to become an editor? It would be a very different world and in some ways more like (academic) blogging than its proponents may wish to think. In other words, the partial monopolization of for-fee journals makes it possible to produce status returns to motivate both editors and referees. Returning to the free setting, refereeing will survive insofar as writing detailed referee comments on other people’s work helps with your own research; it is interesting to ponder in which fields this might hold.

The interesting bit for me here is Tyler’s suggestion about the implicit incentives for reviewing; that people referee papers for fear of not being able to get published in the journal in question. My personal take on it (as is the take of a number of other people, if “this discussion”:https://crookedtimber.org/2008/02/12/how-much-should-we-referee/ is anything to go by), is a little different. I review not so much because I feel that if I don’t review a paper for journal _x_ that the editors of that journal will look unkindly on me in future, but because of a broad sense that I send papers out that others ought to review, and hence there’s a diffuse obligation on me to review other people’s papers in turn. In other words, I think that the motivating factor is general reciprocity rather than specific reciprocity. Not only that: when I have been on search committees where we are considering people who have been in the field for a few years, I usually check their resumes to see whether they have been reviewers for a few journals. This isn’t so much to figure out what the editors think of them (very often, editors are happy with whoever they can get as a reviewer), as because it seems to me to be the best publicly available proxy for whether the candidate is the kind of person who is likely to take on their share of the unofficial responsibilities that any school or department has.

This isn’t to say that Tyler may not be right when he suggests that an open publication world might not support the kinds of detailed and thoughtful review that we hope for, and sometimes get, in the current system. But I suspect (perhaps wrongly) that the mechanism that would undermine reviewing would primarily be a sociological one rather than an economic one. That is, it would have more to do with the disappearance of the social role of reviewer, and the set of perceived general responsibilities that go with it, than with the opportunities for specific quid-for-quo interactions between reviewer and editor that the current review system lends it to.

My previous post has attracted some comments about the academic publishing model, why it is that academics submit to commercial journals that make (in many cases very substantial) profits from publishing their pieces and so on. This broad set of issues has been debated here and on other sites over the last few years. I’d like to throw out a more focused question, aimed primarily at the academics among our readers (although other commenters should feel free to chime in, as always). Starting from the assumption that most of you submit most or all of your work to traditional journals: what would it take for you to switch to publishing through other means (specifically, free-access online paper repositories)???

My own switching requirements (which I imagine are shared by some but not all of you) would be twofold. First – that any alternative means of dissemination provide some sort of credentialling that is acceptable for purposes of internal review. While most of us do our research because we are interested in our topics and think that they are independently worthwhile, we also do it because we would like to keep our jobs (some might also or instead want to find better jobs elsewhere). Second – that the alternative mechanism provide some analogue to the kinds of focused criticism that we get (when we are lucky) from anonymous reviewers. This not only allows for gatekeeping and quality control on the aggregate level, but also typically leads to pretty substantial improvements in individual papers when the reviewers are on target. Obviously, some bad goes along with this system (the implicit incentives of journal publication make academics less likely to take risks and write on out-in-left-field topics than they might in an ideal world), but it’s hard to see how getting rid of it altogether would be a good thing.

If there were a system that provided these two desiderata for social scientists, I’d jump ship in a heartbeat – on every other reasonable criterion I can think of (perhaps there are some that I am missing) open systems are likely to beat closed ones. Obviously there are some very important economic issues too – arXiv, which is the closest analogue to such a system that I can think of, costs a fair bit of money to keep going. But it seems to me that the basic question of what we should want (or, more precisely, what we would absolutely need; wants are potentially infinite) in such a system should be asked before we ask how it should be funded. So what are the benefits and problems of such a system from your perspective, and what would it take to get you to jump over?