Category Archives: intellectual property

Intellectual Property Strategy: Book Launch

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I’m excited to be launching a new book, Intellectual Property Strategy, tonight at Harvard Law School.  (If you’re in Cambridge, MA, USA, please feel free to come by Austin Hall East at HLS at 6:00 pm this evening for the event and a reception thereafter or tune into the webcast.)

The discussion tonight will cover two bases: first, the substance of the book and second, the format of this book, and possibly others, into the future.

On the substance of this book, I will make a few claims.  The basic claim is extremely simple: organizations should see intellectual property as a core asset class rather than as a sword and a shield, as the traditional mantra would have it.  I argue also that IP strategies should be flexible; geared toward creating freedom of action; and inclined toward openness where possible, at least in the information technology field.  These basic claims are geared both toward for-profit and non-profit firms.  There’s a chapter in the book devoted to the special case of the non-profit, which often needs an IP strategy just as much as for-profit firms do.  The flexible use of IP can support the missions of non-profits in important, distinct ways.

– The smartphone OS wars are the most obvious example of how IP matters.  It’s big business for huge firms.  The acquisition by Google of Motorola Mobility for $12.5 billion (thanks, SJ, for the typo-catching) in cash in August, 2012.  The hundreds of millions of dollars paid to Intellectual Ventures as licenses stand for another example of the growing importance in commerce of this field of law.  The multi-billion-dollar markets for the licensing of trademarks and patents in a broad range of fields is yet another.  These examples make the case for treating IP as an asset class.  And the work on IP strategy should be seen as core to the work of the organization, not something to be left only to lawyers outside the firm.

– There is a strong connection between our work in youth and media and the matter of intellectual property strategy.  We know that youth attitudes toward intellectual property are shifting rapidly over time.  The recent passage of the America Invents Act of 2011 points to the dynamism of the space.  These changes demonstrate the need for flexibility in IP strategy over time.

– The use of IP in libraries and museums is a third important case.  I’ve been working actively in the field of libraries, including service as director of the HLS Library and chairing the work to develop a Digital Public Library of America, over the past several years.  In the case of libraries, the question of how much to digitize of our collections is an important problem.  My view is that the digitization, contextualization, and free distribution of our library holdings is a way to use IP as a way to fulfill the specific mission of a non-profit that is devoted to access to knowledge.

I especially am grateful to colleagues Terry Fisher, Eric von Hippel, Lawrence Lessig, Phil Malone, Jonathan Zittrain, who will respond to the book and presentation.  Also, the book project would be nowhere near as much fun, or as good, without the partnership of June Casey, my colleague in the Harvard Law School Library, who has been nothing short of extraordinary.  And Michelle Pearse, Amar Ashar, and their teams have been wonderful in setting up this event.  It’s an amazing group of colleagues!

On the topic of the format, I am excited to talk about multiple versions of the book.  1) There is, of course, the traditional form of the book that someone can touch, pick up, and read in the ordinary way.  There’s also the digital form of that same book, which can be rendered on a Kindle or an iPad, which gives more or less the same experience.  2) There’s a form of the book that is like an Extended Play album, or a DVD that has “extras” at the end.  On the MIT Press web site, one can access video interviews and a series of case studies, for instance, which expand on the argument of the book.  See, for instance, the videos here on the MIT Press web site.

And 3), most experimentally, I have been working with a great team on a distinct version of the book that functions as an iPad application.  The idea is to embed these case studies and videos directly into the text of the main form of the book.  The iPad app version allows for many different ways through the text; connections to the open web; and loads of fun and interesting embedded links.  The idea is to rethink the format of the eBook from the ground up, to add in born-digital elements by design rather than the equivalent of putting up a PDF into an e-reader format.  It’s still in beta mode, but we will demo it tonight.

This short book is part of the MIT Press Essential Knowledge series.  It’s been fun to work with Margy Avery and her team at MIT Press on this experimental project.

Please join us if you are free!

Civic Life Online: Learning How Digital Media Can Engage Youth

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I’ve been making my way with care (and great pleasure) through the fine series of books that the MacArthur Foundation and MIT Press have put together on Digital Media and Learning. There are six in total, each worth reading. (I previously blogged about the volume on Youth, Identity, and Digital Media.)

I’m trying to finish the edits on Born Digital, the book on related themes that Urs Gasser and I are writing. The sticky chapter for me at the moment is called “Activists.” It will probably end up as the next-to-last chapter. I think it’s crucially important as a topic. A few weeks ago, our wonderful-and/but-tough editor at Basic Books said the chapter had to be rewritten from scratch, starting with a blank, new page (she doesn’t like Microsoft Word much). As I’ve gone through the rewrite, I am working in inspiration from another of the DM&L books, Civic Life Online. As I’ve felt about the others, it’s a great contribution to our understanding of a critical topic. The entire collection of essays is worthy of a read; I point out just a few things that jumped out at me, but I don’t mean to imply that other segments aren’t helpful, too.

The opening essay, by editor W. Lance Bennett, sets the frame for the book. He looks at “Changing Citizenship in the Digital Age,” and compares two paradigms: one of young people as engaged and active in civic life, the other as disengaged and passive. He argues that we need to “bridge the paradigms” or else our youth, digitally inspired or not, will continue to get disconnected from formal civic life. He argues in favor of a better approach: show young people how, through their use of new technologies and otherwise, they can have an impact on the political process (p. 21). In the process, we ought to enable young people to “explore, experiment, and expand democracy.” Sounds quite right to me.

Kathryn Montgomery traces a growing youth civic culture in the second chapter. Her emphasis is on the 2004 get out the vote (GOTV) efforts. She challenges the movement toward the insertion of corporations and their brands into the Rock the Vote process and other online communities. This strand of argument brought to mind the core themes of Montgomery’s recent book, also by MIT Press, called “Generation Digital: Politics, Commerce, and Childhood in the Age of the Internet,” in which she builds out further on the issues of corporate branding in the online space and marketing geared toward children. To build on the growing youth civic culture, Montgomery calls for “a broader, more comprehensive, multidisciplinary effort, combining the contributions of communications researchers, political scientists, historians, sociologists, anthropologists, economists and young people themselves.” This too sounds right, though I was amused to see us lawyers left out of the mix of who might be useful — especially when the “key policy battles” that she refers to earlier in the chapter include intellectual property, net neutrality, and online safety, which seem to me issues on which lawyers might have something to say. (Perhaps we are indeed more trouble than we’re worth.) Lots of mentions here, too, of the work of danah boyd and Henry Jenkins to keep bad things from happening in the Congress.

In “Not Your Father’s Internet: The Generation Gap in Online Politics,” Michael Xenos and Kirsten Foot take up the fascinating question (to me, anyway) of how young people are getting their news and information about politics. They argue, as many others do, that young people do so in ways that are generally quite different from the ways that older people do. Young people, they find, are more likely to access news and information about politics either online (and in social contexts) or through comedy programs rather than through print newspapers and evening newscasts — which seems true enough. “Clearly coproductive interactivity is foundational to the way that young people, more than any other age group, engage with the Internet,” they claim. (p. 57) They do a nice job also of linking their theories back to the actual uses of the Internet by campaigns and pointing, in the process, to the kinds of interactivity that work for campaigns to engage young people by building a sense of efficacy and trust. (p. 62) They call, in the end, for a balanced approach between “transactional and coproductive web practices.” (p. 65)

Howard Rheingold has a typically (for him) colorful and engaging piece on the bridging of media production and civic engagement. It’s great to have his voice directly in the set of essays, especially since many others throughout the MacArthur series cite or quote him, especially for his work on Smart Mobs. Rheingold, not surprisingly, has the money line of the whole book, perhaps the series: “Talking about public opinion making is a richer experience if you’ve tried to do it.” (p. 102). He then sends the reader through a tour of exercises and points us to a wiki where we can play ourselves. Many of us talk about Media Literacy. Rheingold (like Henry Jenkins and others) is doing something about it. Right on.

Much in the same spirit, I loved the opening line — as well as what follows — in Peter Levine’s essay: “Students should have opportunities to create digital media in schools.” (p. 119) I get teased for this, but I believe it’s true not just for younger students but for law students, too. Levine’s four strategies are convincing. Marina Bers, our neighbor at Tufts, expands on this point. She uses a lively set of examples (including pulling the reader briefly into virtual worlds). Just as helpful, Bers sets the challenge of developing an effective civics curricula into a helpful theoretical framework. Kate Raynes-Goldie and Luke Walker take a deep dive into one of the most promising projects in this space, TakingITGlobal. They also set TIG in context of related sites.

Stephen Coleman, a British scholar and one of the giants of this literature, concludes the book with a short essay that puts the entire work in context for governments themselves. Coleman points to six things (pp. 202 – 3) that governments can do “to promote democratic youth e-citizenship” plus four “policy principles” (p. 204). Coleman links his themes back to arguments by Rheingold, Bers, and Levine in the process, bringing things full-circle.

I put down this volume hopeful again about what we can do to engage young people in civic life. It’s clear, from the work of these scholars, that we’ll have to expand our thinking about what we mean by “civic life” if we mean to engage these young people. It’s clear, too, that experiential learning — learning that is rewarding and fulfilling and encourages them to come back to these activities — is an essential part of what we have to do next, whether that’s something that we structure in the classroom or that we just encourage and promote when young people just do it themselves.

Sorry, Coop, You Can't Have Our IP

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The Harvard Cooperative Society — also known as our campus bookseller (also a Barnes & Noble) — has been claiming that it has an “intellectual property” right in the ISBN numbers and/or prices of the textbooks that we as faculty assign to our students. We’ve got an op-ed in The Crimson this morning disputing their IP claims. It’s fairly certain that The Coop can kick students out of their store for many reasons, but the claim of IP in the facts of what books I and others are assigning to our students is off the mark. I for one certainly never conveyed such a right to the Coop.

And the stated concern that “if we don’t have a monopoly on selling textbooks to Harvard students, we won’t sell them at all” seems unlikely to be right. I suspect someone, if not the Coop, (which, to be clear, has a long and storied tradition — starting with few students getting together to sell books in the late 19th century — and from whom I have bought many books as an undergrad, law student, and otherwise), will be willing to sell books to Harvard students.

CNET Touches on Blogs and Copyright Issue

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It’s extraordinary to me that, several years into the blogging-and-RSS phenomenon, we still have the issue of a lack of clarity around the permissible re-use of user-generated content, as reported by CNET’s Elinor Mills (“Please don’t steal this Web content“). Fair use is part of the answer; Creative Commons licenses are another part of the answer; social norms are part of the answer; but there’s a layer missing, on top of Creative Commons licenses, to allow for the paid re-use of user-generated content. (Previous posts on this topic linked from here.)  Mills points to Lorelle on WordPress for more.

Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

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Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.

* * *

Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

– For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

– What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

– The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

– “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

* * *

Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

– The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

– In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

– The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

– A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

– A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

– A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

– A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

* * *

St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

– The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

– I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

– The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

* * *

Barcelona

The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

– Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

– Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

– Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

Eric von Hippel in Internet, Law and Politics

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Prof. Eric von Hippel has written one of my favorite books: Democratizing Innovation. Prof. von Hippel teaches at MIT’s Sloan School of Management and runs the Innovation Lab there. Our class of Harvard Law School students focused on Internet, Law and Politics have created a wiki page of questions for Prof. von Hippel in advance of his visit here.

We at Harvard have amazing neighbors at MIT, with whom we do not do enough collaboratively. I’m hugely grateful to Prof. von Hippel for coming through the rain to guest-lecture at HLS and help bridge the unnatural gap between 02138 and 02139.

The challenge for this class today is to find the connect points between von Hippel’s findings from the business world and Benkler’s findings in The Wealth of Networks and to draw conclusions from this intersection about the core themes of our course.

Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?

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Prof. Wendy Seltzer, one of the original Berkman team and still a fellow, is our honored guest at lunch today. She’s telling the story of her back-and-forth with the NFL over the 30-second clip she posted to YouTube, as chronicled in the Wall Street Journal’s law blog, her own blog, and elsewhere. Wendy’s claim is that the clip is fair use. She has a strong case on the four-factor test. She’s being asked here about whether the NFL is materially misrepresenting their position in this matter. Wendy points to the second take-down notice, at which point a human being had to have reviewed the clip. She notes also the Diebold case, in which the judge concluded that no reasonable copyright holder could have believed that fair use did not attach in that instance — and that this case certainly meets or comes very close to this standard. (The video of Wendy’s lunch talk will be posted on MediaBerkman if you missed it live or on the webcast.)

Cary Sherman, Lewis Hyde in Chat about RIAA's AntiPiracy Campaign

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Cary Sherman, president of the Recording Industry Association of America, participated in a web chat about the RIAA’s new Anti-Piracy Campaign on US university campuses — sending pre-litigation notices to digital natives accused of illegal activity on peer-to-peer networks, which the universities are asked to pass along to the students.  The Berkman Center’s Lewis Hyde tossed in a question.  Here’s Lewis’s question:

“The recording industry regularly asks colleges to police their students in regard to infringement. Why is it the task of colleges to do this police work, rather than the police?

“Sharing files over the internet is not illegal per se; that depends on what’s in the file and on what it is being used for. An accusation of music piracy is not a proof of music piracy: questions of evidence, and of fair use, and of educational exceptions to infringement come into play.

“If colleges ‘pass along messages’ that direct students to ‘pay lump sums to record companies,’ colleges become an arm of the recording industry, bypassing their educational role (teaching about fair use, for example) and bypassing legal due process, if in fact there is a criminal charge to be made.

“For these reasons I believe that colleges should decline this RIAA request. How would Mr. Sherman respond to the background assumption here, that the industry, the colleges, and law enforcement are distinct institutions, and that there is good reason to keep their separate roles clear?”

Go here for Mr. Sherman’s response.

Apache, Sun Tangle over Licenses

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The Apache Foundation is accusing Sun of holding out on a license related to a Java test kit. In an open letter, Geir Magnusson Jr of the Apache Foundation says to Jonathan Schwartz, the Sun CEO:

“Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE.  This test kit, called the ‘Java Compatibility Kit’ or ‘JCK’, is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun’s specification license.  The JCK license Sun is offering imposes IP rights restrictions through limits on the ‘field of use’ available to users of our software.

“These restrictions are totally unacceptable to us.  As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) – the governing rules of the JCP – to which Sun is contractually bound to comply as a signatory.”

Interoperability in the software context — especially the free/libre/open source software context — so often turns on field of use and similar provisions in the relevant intellectual property licenses.  Sun has been a huge supporter of the open source movement in many ways, so Mr. Schwartz certainly knows this.  One wonders whether this decision, presuming Apache’s claims are true, to deny such a compatible license was a high-level policy decision or one that just hasn’t been run past the right person at Sun.  We’ll find out, I suppose.

iTunes and EMI Breaking the DRM Barrier

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Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)