In the course of our research, there were a few court cases which seemed particularly important to our topic, and none of them had Wikipedia articles. Being good citizens of the internet, we figured we’d go ahead and write articles on them. You can find our three articles here, here, and here. We both really enjoyed this class, and wish everyone else a great summer!

Our group wanted to figure out the state of Open Access (OA) at Yale, and what it would take to improve it.  Our project basically consisted of three phases:

1. Research to figure out what the norm is at other universities and with what, exactly, Yale should be compared.
2. Research among Yale faculty; we spoke with seventeen different professors and got their opinions about OA, and found out their concerns and whether they would support a university-wide OA mandate in the style of Harvard and MIT’s recent policies.
3. Compilation and presentation, including a draft of an OA proposal.

We read about OA, finding some really excellent resources (SPARC, Peter Suber, OASIS) in the process.  Then we talked to seventeen professors (none of the administrators we tried to talk to were available, unfortunately).  We listened to some of their concerns about OA (mostly arising from misconceptions about the peer-review process for OA journals), heard their opinions, found out what the general perception is.  To summarize: we found that most of them had some sort of idea what OA was about.  Several were enthusiastic, most were willing to give it a try, and only a few were skeptical.  This is intended to go beyond a simple class project: we’d like to extend it to an effort to get an actual organized OA campaign going here.   That shouldn’t be too hard; professors didn’t mind the idea, and there are enough people high up willing to listen (and enough people down low willing to talk) that we could get something really moving.

Our research and our results are available at http://openaccess.its.yale.edu.  Check it out!

-James, Christian, Adi, Evin, and Ben

EDIT: Okay, the link works now.  It doesn’t work the way it’s supposed to, and I blame Apache for that.  I’ll redo the server setup and fix it before converting this from “class project” to actual “project”.
-Ben

http://www.wix.com/dls6128/IP-in-the-Digital-Age

Check out our website at http://web.me.com/ipdigitalage/Project/ . Watch the videos, read the transcripts and add your voice to this vibrant debate by commenting right here on the class blog.

The viewpoints expressed do not necessarily represent our personal views on the matter.  The purpose of this project is to present different views on generic drugs and cultural works for the sake of dialogue and debate.

Webcomics, monetization and incentives from Carter Schonwald on Vimeo.

This is my final presentation on webcomics. The first half of the presentation is a recap of what I discussed in class, and the latter half is various qualitative considerations I use to argue that the current setup for how webcomics make revenue is implicitly dependent on a permissive approach to IP. Theres a lot more interesting work on this topic, and I think I’ll do thusly over the summer, see the end of my presentation for a few ideas for what to do next.

[note: the last video segment has bad quality for resasons that I'm not able to determine or fix]

Our documentary sought to explore both the contributions Yale has made to various open source projects as well as how Yale employs the results of open- and community-sourced projects. We did so primarily by looking at CAS (Central Authentication Service), uPortal, Sakai, and Horde, all projects which have been partially developed or used by the Yale community.

With four interviews (three video and one audio), we explored open source’s impact at Yale, talking to Andy Newman (outgoing Director of Yale University ITS Technology and Planning), Paul Hudak (a principal developer of the community-created language Haskell), Shawn Bayern (a principal developer of CAS and professor of law at Duke), and Susan Bramhall (a Senior Research Programmer for Technology and Planning and a board member of JA-SIG, a community-source educational software organization).

This project was incredibly timely, as the Technology and Planning Department, the arm of ITS responsible for Yale’s open source development and contributions, was very recently disbanded as part of recession streamlining, and so this documentary examines the projected future impacts of Yale withdrawing somewhat from the open source community.

Enjoy the documentary, thanks for a great class, and have a good summer!

Robert Baskin, Patrick Dewechter, Matthew Du Pont, Lauren Henry

In the past (and possibly the present) there has existed the possibility that an attorney might be ordered to serve as the defense counsel for indigents. Taking this, and jury duty, as guides one might propose that in the interests of promoting the progress of science and technology that it be the duty of professional engineers to review patents as an adjunct to the USPTO. Engineers could be selected by lot on some sort of basis to review a patent in their field. Naturally there could be some minor problems with this related to engineers objecting to this being a requirement of being registered as an engineer. More serious problems would arise from having to take measures to prevent conflicts of interest or the leaking of secrets prior to publication.

Such a system with the inclusion of the peer to patent system would decentralize the process of approving patents so that those actually working or at least expert in a field would be analyzing related patents. Furthermore it would solve the problem of finding and retaining appropriately qualified patent examiners because anyone with the appropriate expertise might be chosen as an examiner for a particular patent. It seems likely that there is some expertise that is related to approving patents separate from that of knowledge in the field, so it would most likely be necessary to assign the chosen field experts to correspond with an offical at the USPTO who would have the appropriate knowledge regarding patent policy and law.

A more detailed study would need to be undertaken in order to examine the feasability of this rather vague proposal. The most obvious issues are as follows. From what groups would the potential patent examiners be chosen? How would impartiality be enforced? How would the chosen examiners be compensated? In what capacity would the potential patent examiners be chosen, simple assistance or making decisions? Would appointed examiners be less diligent or skilled? How would this system affect the quality of patents issued? Would this system cause substantial disruption of industry given the number of patent applications in a single year? Would simply increasing the number of patent examiners in the current USPTO be a better solution? Would industry have a disincentive to apply for patents as applying for more patents could mean less work from their employees (as there would be an increased probability of some employee being chosen as an examiner)?

Given most economists’ near-innate aversion to monopolies, it is perhaps unsurprising that a proposal for a monopoly-free patent system came from Michael Kremer, economist at Harvard. Kremer’s idea centers on patent buyouts, in which the government pays an inventor in return for the inventor relinquishing her patent rights. The government subsequently puts the purchased patent in the public domain. Kremer’s paper details the specifics of his plan. Fellow economics professor Steven E. Landsburg of the University of Rochester has an informal introduction here.

Patent buyouts are not an entirely novel concept. The French government famously bought the rights to the daguerreotype photographic process for the public domain by paying lifetime pensions to the two inventors. The inventors had been unable to license their invention in the usual way and turned to a friend with political connections. The daguerreotype subsequently became the dominant photographic technique until patents on better processes like Henry Fox Talbot’s calotype expired. Coming a little closer to home, Kremer also mentions several southern states’ buyouts of Eli Whitney’s cotton gin patent, which Whitney agreed to in large part because Southern courts had not been keen on enforcing his rights against local infringers anyway. In both cases, governments more or less successfully used patent buyouts to remedy failures in the conventional patent system.

Kremer’s innovation comes in using public auctions for determining the buyout price. Kremer’s patent system operates normally up until the patent is issued, at which point the public is invited to bid on it. In most cases (Landsburg suggests 90% of the time), the government pays the inventor the amount of the highest bid and the patent goes to the public domain. To give bidders incentive to bid meaningfully, the highest bidder pays the inventor and secures the normal patent rights in some randomly selected fraction of cases. Kremer also suggests the government pay a fixed markup in addition to the highest bid (to account for the patent’s social value) and describes some systems for preventing inventors from colluding with bidders to inflate prices (e.g. third-price auctions, where the winner pays the third-highest bid).

There are several appealing aspects of Kremer’s system. The public domain would obviously expand substantially, reducing expenditures on patent licensing and litigation by perhaps 90%. Independent inventors would also benefit, since they would be relieved of the substantial burden of selling or manufacturing their invention after it had been patented. Consider for instance the “Jaromatic,” a patented universal jar and bottle opener invented by a 68-year-old retired man who is currently offering all the rights to his invention for $250,000. He has had no takers so far, and consumers remain an automatic jar opener poorer for it. Certainly there are other, similar patents currently owned by inventors without the desire or wherewithal to license them. On the other side, manufacturing firms currently face the daunting prospect of trying to negotiate patent rights individually with independent inventors. An auction-based patent system would give inventors the compensation they desire and manufacturers the designs they need while sparing both parties the costs of negotiation.

Looking beyond the economic idealizations reveals potentially fatal flaws for an auction-based patent system, however. The first question is where the government will get the money to purchase 90% of the nearly 200,000 patents granted each year. Landsburg waves his hands at this, suggesting that tax revenues can pay for the buyouts because goods will be cheaper on average as a result of fewer patents. Whether or not that claim is right as an empirical matter, imposition of a patent tax is probably politically impossible.

Doubts also exist over the ability of an auction to accurately price patents. Although economists like Kremer and Landsburg seem to take market efficiency as an article of faith (skeptics might call it dogma), there is reason to believe that the value of new patents is essentially unknowable. The full utility or commercial value of an invention might not manifest itself for several years, which is one reason the patent term is as long as it is. Kremer’s system requires bidders to forecast value based on the relatively meager information available when a patent is granted, a difficult if not impossible task that could lead to wildly inaccurate buyout prices.

Finally, a bought-out patent cannot be easily challenged if it is later found to be invalid or too broad. The current patent examination system (which Kremer’s proposal leaves unchanged) depends heavily on post-grant litigation to check improper and over-broad patents. Once a patent has been bought out and placed in the public domain, however, there is little incentive for any party to challenge it. Even if someone wanted to challenge a bought-out patent, what could the remedy be? The inventor could not be expected to return part of her compensation, since she might have received it years ago. Given current concerns over the quality of patents granted by the USPTO, an auction-based system would almost certainly result in the government overpaying for many patents that do not cover truly innovative inventions. Indeed, one might expect dubious patent applications to rise in an auction-based system. Without the threat of subsequent litigation, malicious inventors need only slip their applications past the examiner to collect their reward at the government’s expense. Coupled with the difficulty of valuing recently granted patents, this opportunity for fraud is a serious defect of an auction-based patent system.

For all its faults, Kremer’s auction-based system still provides an interesting though experiment on patent reform. At the very least, it should encourage people to consider patent reforms with broader reach and a more creative bent. Even if auctions and patent buyouts aren’t the answer to our present patent woes, Kremer’s proposal forces us to question the oft-presumed necessity of the connection between patents and monopolies.

One obvious problem, which Noveck begins to anticipate but whose importance she subsequently minimizes, is that opening the patent process to public review would likely result in teams of scientists from opposing companies each attempting artfully to trash their competitors’ patents.  For example, a patent examiner may be presented with highly deceptive arguments intended to persuade him that a competitor’s patent has a basis in prior art when in fact it does not.  She argues that “if people produce information that is useful to the examiner, their personal agendas are irrelevant” (156).  What she does not fully acknowledge is that not all “information” is created equal.  In particular, the language used to convey a particular set of “facts” may well be biased or intentionally deceptive, further obfuscating the matter rather than clarifying it.  In such cases, it may well be that the patent examiner would need more rather than less time to evaluate the patent, and he may not be the most adept person at making such an evaluation in the first place.

Noveck calls this potential flaw “unproblematic” by simply building into her model a requirement that contributors sign an affidavit affirming that they have no conflict of interest.  This idea seems much more effective in theory than in practice.  The people most eager to make contributions will be exactly the people whose stakes in the outcome are large.  Often with sizeable resources at their disposal, we can be confident that they will find creative ways of circumventing this requirement, by bribery, deception, or otherwise.

A system is only as good as its capacity to enforce its requirements.  If the contributors offer their “opinions” it would be extremely difficult to distinguish a good faith but differing point of view from profit based advocacy.  Likewise, prosecutions of contributors perceived to be biased (rightly or wrongly) despite their affidavits would drive from making any comment those who could not rely upon well-financed legal teams to come to their defense.

Would there not be a substantial danger that the battle of well-financed parties in interest is merely shifted from the Courtroom after the patent is granted to the examiner’s office before the grant?  If the examiner is now overworked, will not the fog of patent war resulting from too much information likewise gum up the process, and perhaps much more?

If we are going to require affidavits of no conflict of interest, set up elaborate structures and weed out processes to eliminate those who try to pervert the process for financial gain (i.e. have a competing patent denied, do harm to a competitor’s company, etc.) why is it not much more efficient just to hire more competent examiners and to expand the time they have to examine the patent and the resources which they have available?  In the end, it seems that trying to correct the flaws of the current system within its existing structure may be a much easier task.

We all interact with copyrighted works on a daily, almost constant, basis.  So when it comes time to update the copyright law governing the creation of, and our interactions with, these pervasive works, how do we choose to shape the law?

In the debate over how exactly to reform copyright, there seem to be two main factions.  Those who want to liberalize the current system and those who want to make it more stringent.  An emblematic movement for the first side mentioned is the free culture movement which advocates the benefits of legitimate fair use and remixing (among others) to  promote creativity.  In the other camp are copyright holders, typically corporate entities, who are working to safeguard the investments they have made in developing works they have copyrighted.  While this characterization of the debate is perhaps a bit simplistic, it hints at the underlying conflict related to copyright reform and the need for some sort of consensus to be drawn between these two opposing sides.

This challenge is the balancing act of copyright reform.  A balance must be struck  between securing freedom of expression and information (Stallman’s “free as in free speech”) while protecting the rights of copyright holders (avoiding having proprietary work taken for “free as in beer”).

Nevertheless, it is important to make sure that copyright law is not stifling innovation and limiting legitimate fair use in responding to copyright infringement.  There are clearly some  elements of the Copyright Act of 1976 that are dated, including the length of the copyright term and the failure to explore in depth new copyright issues related to rapidly changing technologies.  The 1998 Copyright Term Extension Act and the Digital Millennium Copyright Act only served to further lengthen the copyright term and introduce more strict controls over copyrighted works and their distribution.  In fact, under the current system a copyright term can last as long as 120 years!  While iconic works (such as Mickey Mouse) may have some commercial value that long after their initial creation, the vast majority of copyrighted works do not hold sustained economic value for that excessive length of time.  In fact, a Cambridge researcher found that the ideal length of copyright is just 14 years.  Taking this gross disparity into account (with the current term over 8.5 times longer than the ideal term) suggests a need to revisit and adjust the aging copyright system.

But at the same  time, there is a great deal of outright copyright infringement (estimated at $20 billion this year) which is severely impacting the business operations of major content producers (who are also copyright holders).  This infringement, especially in the current global recession, jeopardizes the future of the companies that entertain and employ individuals throughout our country and the world.  Going back to Stallman’s distinction, it is therefore important to critically examine current copyright law to allow expressions of freedom “as in free speech” while curbing abuses of “free as in beer.”

A concrete example of such a balance would be to reduce the length of copyright terms while streamlining and improving the mechanisms to curb copyright infringement.  The first provision would increase the number of works in the public domain, therefore putting these works at the disposal  of creative minds worldwide.  The latter provision need not astronomically increase fines or prison sentences for individual infringers but should determine a way to coordinate policy, law, and enforcement of these measures both domestically and internationally.  In so doing, the new system will preserve, as best as possible, the legitimate claim of copyright holders to their exclusive rights for the full amount of time allowed by the law.