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Glyn Moody writes "For years, the content industries having been trying to get laws passed that would stop people sharing files. For years they failed. Then they came up with the 'three strikes and you're out' idea — and it is starting to be put into law around the world. First we had France, followed by countries like Italy, Ireland — and now South Korea: 'On March 3, 2009, the National Assembly's Committee on Culture, Sports, Tourism, Broadcasting & Communications (CCSTB&C) passed a bill to revise the Copyright Law. The bill includes the so called, "three strikes out" or "graduated response" provision.' Why has the 'three strikes' idea caught on where others have failed? And what is the best way to stop it spreading further?"

We put up the original call for questions on September 5. Jamie's travel schedule (mentioned in one of his answers) is so hectic that it is amazing he found time to answer these questons at all. But answer he did, in detail. It's going to be interesting to see how Jamie's take on tech-oriented lobbying compares with that of "commercial" lobbyist Morgan Reed, whose interview responses we hope to see in the very near future.

1) Politician's Reaction
by dexter1
From my perspective, it seems that all of the politicians in congress seem to be firmly in the grasp of big business ......... or intellectually aware of the issues and responsive to viewpoints other than those of big business? Are there any particular politicians that seem more receptive (that could potentially campaign and convince others)?

Jamie Love:
Politics have gone downhill ever since the US Supreme Court decision in Buckley v. Valeo. By making campaign spending a constitutionally protected form of speech, and essentially legalizing bribery, we created a system where the average member of Congress spends most of his waking hours trying to raise money, just to compete with some other person who might do the same thing. Now the new members of Congress are people who excel at fundraising, or have money to begin with. Once they get on this treadmill, the spent all their time socializing and speaking with the lobbyists who can raise more money. It isn't so important that a politician be genius, or have deep insights of their own into problems, but if you hang out too much with lobbyists and make friends with people just to ask for money, you get a warped and fairly limited view of the world.

That said, I have my own favorites. In the Senate I like John McCain, even though I hate what he does maybe half the time. Patrick Leahy is smart and has his moments. Paul Sarbanes is a decent guy, as is Byron Dorgan. All of these guys will make you mad part of the time, but not all of the time. In the House, Bernie Sanders, Sherrod Browne, Jan Schakowsky, Jessie Jackson, Jr. and some others have helped us a lot on our work on access to medicines in developing countries. I think Barbara Lee is very good, and independent -- she was the only member of the House that voted against the bill to give the executive branch a blank check in its war against terrorism. She is one of a small handful of members of Congress who are focused on the tragedy unfolding in Africa over AIDS.

2) Consequences for Patent Breakers?
by Bonker
I believe it was Brazil(? Please correct me) who recently ordered pharma plants to start manufacturing AIDS drugs in violation of U.S. patents. What are the consequences for countries who violate patents like this? Can we take this as a sign that violating a patent in this manner, 'for the public good' so to speak, is going to become more common and acceptable?

Jamie Love:
The Brazil case was poorly reported. Yes, Brazil has threatened to issue compulsory licenses on some patents on AIDS medicine, which has forced the price down, and yes, Brazil manufactures a number of AIDS medicines itself. Brazil only included medicines in its patent Act in 1996, after considerable pressure from the US government, so the earlier AIDS drugs are not covered by patents in Brazil. Now what else has Brazil done? It spends more than $300 million per year to buy AIDS drugs, provides universal access to triple therapy for every person in Brazil who needs it, regardless of their income. Brazil is the only country in the developing world that makes triple therapy available to any significant number of patents. Without triple therapy, most HIV+ people will die within ten years.

Brazil hasn't "violated" any patents. Brazil didn't issue patents on pharmaceuticals before 1996, and now it issues patents. Patents are a grant from the government. If the government wants to limit that right, it can, even here. We recently pushed a report that provides examples of compulsory licenses on patents in the United States, to provide a better understanding of how often this is done in richer countries. It makes no sense for the government to give unlimited power to patent owners. Patents are instruments of public policy, to achieve public purposes. People can't do whatever they want with regular property, and they can't do whatever they want with intellectual property.

We have global trade rules that determine what countries can and cannot do in terms of patents. The most important of these agreements is the World Trade Organization's TRIPS agreement on intellectual property. Articles 27, 30 and 31 of that agreement give governments the right to limit patents in important ways, including cases where governments can create either exceptions to patent rights, or step in and authorize third parties to use patents. In September of this year, the US Department of Justice required 3D Systems Corporation and DTM Corporation to license 178 patents to competitors. I didn't see screaming headlines all over the world announcing that the US was violating patents. Also in September, the US Federal Trade Commission announced it was considering a request for compulsory licenses on Unocal's clean fuel patents, at the request of Exxon. There are lots of circumstances under which the US government can limit patent rights in the United State. But there is often a big international trade crisis when a poor countries wants to issue a compulsory license for a patent on a pharmaceutical drug. This is the case for example in Africa, where infection rates are astonishing. We are working on a compulsory license application in South Africa. Right now more than half of pregnant women in their 20s are testing positive for HIV. They will all die without access to medicines. What type of government would put the interests of patent owners above the interests of half a generation of mothers?

The Clinton Administration was very friendly to the pharmaceutical industry in trade disputes involving medicines, having brought dozens of trade actions against countries all over the world. On January 11 this year, a few days before he left office, President Clinton filed a WTO case against Brazil, claiming their "local working" requirements in the Brazil patent law violated free trade rules. After a great deal of opposition by the public health community, the Bush Administration withdrew the case. Although Clinton actually filed the case and Bush ended it, Clinton is now touring developing countries as a champion of AIDS patients. For eight years Clinton and Gore placed incredible pressure on poor countries to adopt very high levels of intellectual property protection on medicines. President Bush started out with a fairly moderate policy on this, but seems to be increasingly captured by the big pharma companies, in terms of trade policy, and is opposing every effort the poor countries to make the WTO agreement more friendly to the poor, in terms of access to medicine issues.

3) How to communicate issues?
by Sinistar2k
Obviously, the big ticket item is getting the citizenry involved in making changes at a legislative level regarding the liberties that have been traded in the interest of corporate domination. The problem, however, is finding a way to communicate that without spending three days pointing out cases of encroaching corporate control.

Do you have any tips/suggestions on how an average technology enthusiast such as myself can best go about conveying to the every-day public the sense of urgency surrounding technology issues and the reason such issues should be addressed?

Jamie Love:
The Internet is an amazing showcase for creative ways to call attention to various issues and causes. I would barely know how to start. But I can give what I think are some basics.

• People who take the time to be informed are taken more seriously.
• It helps to have some idea of who the decision makers are, and how you can get in touch. Writing a member of Congress an email probably has some effect, but probably not much. Writing a Congressional staff member who is working on an issue is likely to have a much large effect.
• It is rather amazing how much impact public comments have on government bureaucrats, particularly in formal rulemaking and requests for comments. Something more interesting than you might think would be to spend some time searching the federal register on topics you find interesting.
• Letters to the editor in newspapers are underrated, particularly if you target key papers in a member of Congress' hometown. That's a letter they will read!
• If the issue is getting press attention, lobby the press. What reporters or columnists say and think is pretty important.
• For the non-amateur: during the 1996 Telecom debates, $1,000 apparently would buy about 10 minutes of face to face with the Chairman of a key subcommittee. I don't know the current price. We don't do this, but some small businesses might want to, it costs money to elect a Congressman, and it may make sense to support members who support you. I'm only half kidding.

4) Patent Issues
by michellem
It seems that the patent office has, in the last few years, lost their collective mind. Patents are incredibly broad, or amazingly misdirected, like in the case of the patents on human genes. They currently seem to protect only litigious patent holders, not the consumers or anyone else, for that matter. What is your organization doing to change this current patent landscape? Is there anything that can be done?

Jamie Love:
Well, we are doing what we can. We spent a lot of time communicating with the patent office, and dealing in particular with the international dimensions of this. One issue that needs more work is documentation of the costs of the patent system in various industry sectors. It makes no sense to have patents issued for software or business methods. The American Medical Association (AMA) told Congress that "thanks but no thanks," they did not want patents on surgical methods, and Congress provided an exception. One problem here is Article 27.1 of the WTO TRIPS agreement, says that

patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application

The US government has been pushing a very aggressive interpretation on this, and some people at the World Trade Organization or the World Intellectual Property Organization claim that this requires every countries to patent software, business methods and just about anything else. So the USPTO isn't just issuing patents on everything under the sun, it is lobbying the whole world to do so. For example, Jordan is now required by the US government to issue patents on business methods and software.

Another very important international fora concerns the proposed Hague Convention on Jurisdiction and Foreign Judgments. I have written a lot about this, and this is our main e-commerce project right now. I can't think of a bigger threat to the Internet than the Hague Convention. The Hague treatment of patents is a nightmare. Everyone would be liable for infringement of foreign patents, and the Hague Convention would give exclusive jurisdiction for both validity and infringement in the county of registration. Every country who signs the Convention would agree to enforce both money judgments and "protective and provisional" measures, such as injunctions, across borders. Companies like Microsoft can find or even rent member countries to adopt and enforce bad patents, and harass the free software community or competitors. In the end, every country will try to tax the Internet through overreaching patents. It presents a huge problem. The US government is actually the most progressive delegation on this issue, and the problem now is convincing Europe to take patents and other intellectual property out of the Convention.

On medicines, we are working with Representative Sherrod Brown, who has introduced HR 1708, a bill that would create a stronger compulsory licensing authority in the US, to deal with such issues as blocking patents, or refusals to license on reasonable terms. This bill is limited to public health, but could be expanded.

One thing the average hacker could do is to communicate more with the Judges who make policy, and by this I mean the U.S. Court of Appeals for the Federal Circuit (CAFC), which really makes patent policy in the US. These Judges hear from patent owners all the time, but not from the public.

5) Free Speech
by Nexus Maelstrom
As a University student currently involved with a student group called the Campus Democracy Collective, what is the best way to inform both my peers and government representative that the fight for speech, liberty and freedom from oppression will be fought over bits and bytes, and not how many miles per gallon their car will get?

Jamie Love:
I would start by thinking a bit about what types of freedom you think are being threatened. Certainly you can find a lot of free speech on the Internet. What you may find less free are some other media, such as television, which features a remarkably narrow range of views, or the new limits on liberty by expanding concepts of intellectual property. I also think there is a big relationship between privacy and freedom, this is an area where the role of the government is complicated, because on the one hand, you want the government to protect the public from invasions of privacy by businesses and other institutions, and on the other hand, you want the government to leave you alone. After September 11, all of this has become much more difficult to manage. The world has changed, and we have to have a new strategy to protect privacy and human dignity and freedom in a world that wants more surveillance and less liberty, in order to be more safe. How do we enable the government to protect us, while having some protection against the government?

6) Neverending Copyright
by oddjob
The entertainment industry appears able to get copyright protection extended as long as they wish. While not as directly related to technology as patent law, copyright law is becomming more of a concern, especially with the recent mess with the DMCA. Is your organization making any efforts to convice congress to return copyright duration to a sane limit, and if so, is there much hope for success?

Jamie Love:
Our proposal is to have short terms for works for hire, where a corporate entity owns the right. This would put movies into the public domain much sooner, for example, as well as much of the archives of newspapers. More generally, we need to have a much stronger public domain lobby, and an international dimension too, to address the WTO requirements for copyright term.

7) Patents and the cost of development...?
by tenzig_112
How does CPT balance fighting patents on drugs (and other technologies) with the cost of developing those technologies?

Surely, the cost of life-saving medications should not be prohibitive. And dozens of ridiculous patent disputes cannot be good for any industry. But without some means of recouping the often crippling cost of development (for example, 1000s of drugs begin the development process and only a handful make it to the consumer) what incentive is there to investigate new ideas?

What will happen to the fields of medicine and information technology if the market for invention dries up?

Jamie Love:
I spend a lot of time on R&D issues, for example as a member of the MSF working group on Drugs for Neglected Diseases, and also proposing various approaches for R&D treaties. It does cost a lot to develop a drug, but not as much as one might think. If you look at the Orphan Drug Tax Credit, for example, you find that in 1998 drug companies spent only $8.6 million on clinical trials per approved orphan product, a major development cost. Of course for some drugs this can be much more expensive, running into tens of millions of dollars. The most difficult and risky part of drug development is the pre-clinical stage, where there is less data. In general, the US pharmaceutical industry spends about 7.5 percent of sales on R&D, according to its tax returns. This amounts to a lot of money, but even here, a lot of this is fairly low priority stuff, such as "me-too" drugs.

We have proposed R&D mandates for the drug industry. Specifically, we think that every firm that sells drugs in the US market should make mandatory contributions into R&D funds, as a cost of doing business. Companies could manage all or part of this money, for their own benefit, under whatever conditions the government wanted to impose in terms of transparency or public health priorities. This would give the US government new policy tools to increase R&D, if other policy tools, such as compulsory licensing, reduced private incentives.

If you knew how much crap the drug companies get away with now, in terms of ripping off the public on government funded inventions, or "evergreening" patents beyond 20 years, you too would be looking for ways to avoid the constant blackmail over R&D that you get every time you try to introduce some fiscal discipline to the system.

The story on the information technologies side is different, and patents play a much lesser role in protecting investment. Software gets copyright, trademark, trade secret and contract protections. It doesn't need patent protection.

8) The public cost of copyright
by underwhelm
It seems to me that because copyright is intangible, that the public domain is immeasurable, and because expanding copyright takes no money out of the budget, that IP laws are the pork barrel legislation of the Digital Millennium. Senators and legislators see no problem with enlarging copyright beyond its traditional boundaries, past fair use and first sale, because there is no means of accounting for the theft. Is there a sense in Washington that wrapping new copyright restrictions with a bow and handing them to entertainment conglomerates has no downside politically or economically?

If this is the case, how can we change the climate in Washington to make our representatives accountable for diminishing the public domain and enlarging copyright?

Jamie Love:
This is tough, because the entertainment companies really invest in Congressional campaigns. I would have to say that consumer interests are weak, as a movement, on the IPR issues. Larry Lessig and others are trying litigation, raising constitutional arguments. Maybe one exercise would be to ask members of Congress to estimate the loss to the public domain for all of these new claims for privatization. One of the issues is who will pay for the lobbying to protect the public domain? It helps to have money to fight these battles. We have to figure out where the money will come from. It isn't easy. I worked on various IPR issues for a long time before any foundation would fund this aspect of our work. No one understood what it was about. Very few groups work on these issues. We do. EFF has been doing some useful work. Public health groups have been doing a great job on the global medicines issues, and librarians are pretty well organized on issues that directly impact them. The ACLU is beginning to think more about IP issues. Sun Microsystems used to be more active on these issues, as did a few other firms, but really fairly minor. Bill Gates is very involved, but not on the side of the public domain. Richard Stallman seems to have engaged some lobbyists on issues more directly related to free software.

I guess the best answer is to get organized. In 1996 we formed a group called the Union for the Public Domain (UPD). Richard Stallman, Mickey Davis, myself and several others are on the board, but due to my poor leadership, it isn't active at the moment, and we are looking for a new board chair. Suggestions would be welcome. The main problem was that I couldn't even raise the money for a single full time staff, which is really needed. If someone wants to pay for this, it would be a very good investment.

9) What's your job really like?
by Masem
Whenever I hear the word lobbyist, I think of someone carrying a bag of money to a Congressman, and expecting to get legislation passed; the image is most likely a result of hundreds of political cartoons and editorals. Obviously, this image isn't 100% true, but from what we as citizens hear on daily events in Washington, this doesn't seem like an overexaggration.

Can you describe what a typical day is for you - for example, do you see Congressmen, how do you influence their voting (financial or otherwise), and what do you do when you are NOT on Capitol Hill?

Jamie Love:
I spend almost no time on Capitol Hill. I spent a lot of time outside of Washington, DC, and a lot outside of the United States. In August I was in Pakistan, the Dominican Republic, Zimbabwe and South Africa. Tomorrow I leave for Berlin. These face-to-face meetings are pretty important. We use the Internet a lot, but it is quite important to build some confidence first, particular when dealing with international issues, where cultural differences take some time to understand. I also spent a lot of time writing and sending email, managing email lists and posting stuff on our web pages. Our typical contribution is to get fairly technical on policy issues, and share information fairly widely, via the Internet, trying to build a broader movement on this or that. In terms of Capitol Hill, I personally talk with staff more than members, and the same is true with the federal executive branch agencies -- I talk with middle level staff quite a bit. Every once in a while I participate in a meeting with the President or a high level official, but not often, and rarely do I have much to show for it later. But if you do a good job convincing a few key staffers, or the general counsel of an agency, or a lead negotiator, you have really done well. As a practical matter, one of the main things you also need to do is talk to the press. When I travel a lot, reporters get a bit tired of trying to track me down. But you can always call reporters. They play a pretty important role in government.

10) Why do you use Microsoft Windows
by Anonymous Coward
If you are so anti-corporation, and so anti-Microsoft, to the point of publically criticizing them and their practices, why does the Consumer Project on Technology, and specifically you, Mr. Love, choose to use Microsoft Windows on your office and home machines?

Jamie Love:
Well, our office uses just about everything. We have Windows boxes, Linux boxes, Macs and Suns. For a while I moved the CPT unit entirely to Linux, to have a Microsoft free environment to see how that would work. We did this for more than a year for everything. Recently I switched some machines back, and now I use an IBM lap top with Windows as my main machine. I decided to switch back for several reasons. First, I had lost touch with what Microsoft was up too, and I needed to know that. Second, I wanted to use a large number of new devices that I couldn't get to work on my Linux box. Third, I was having trouble sharing my Linux documents with colleagues using MS Office, due to the typical Microsoft anticompetitive practices. And I was pretty unhappy with the progress in the various GPL office productivity tools, with the exception of the GNOME spreadsheet program, which was pretty good. I didn't see much work by AOL in improving the Linux version of Netscape, and wasn't happy when Microsoft invested in Corel and they seemed to be dumping the Linux apps. Recently I went back and tried a few current Linux distributions, and am deciding what to do on that front right now, wondering why Sun can't make Star Office an easier install. I've used lots of different computers over time. My first one didn't have a monitor, only a printer, and my first personal computer was a Commodore 64, which I used to dial into an IBM mainframe. I like computers and computing, and I like Linux a lot, but I am not that happy with the current state of client applications, and a bit frustrated tying to use various PDAs, scanners, cameras, printers, etc, with my Linux box.

11) Outside the US of A
by bfree
I'm not American, but in recent years I have been boycotting many American corporations due to the influence they have on the US legal system and their seemingly inexhaustable ability to gain any IP law they require. I am seriously concerned by the aparently relentless push by US based coporations to bring an American style Intellectual Property regime to the rest of the world. As a Free Software advocate I find few ideas as repellent as "Software Patents"! My question to you is how do you see the International Intellectual Property arguments going, and ultimatley will we reach a system where everyone is under the thumb of software patents or where the US is forced to give up on this terrible idea?

Jamie Love:
As I noted above, the most pressing current danger is the proposed Hague Convention. We have a lot of information about this on our web page. Also, by all means file comments in the EU consolation on the Hague Convention, which can be done by electronic mail.

I think the second major issue is the WTO TRIPS Article 27.1 language, which is quite expansive in terms of what countries must patent.

The third area to watch out are the various bilateral and regional trade agreements, which are basically out of control. In the US, USTR is the lead agency, and is largely captured by a handful of large corporations. But things are really pretty bad elsewhere too. Some European trade officials and bureaucrats have patent envy, and can't wait to get Europe to become even more aggressive than the US. On the Hague negotiations it is the Europeans who want intellectual property in, and the US that wants it out. So sometimes the problem is in Europe more than here. Look too at the mess caused by the EU decision to create these rights in data under the database directive.

12) Effective technology lobbying and activism for DMCA
by melquiades
I'm part of the group that's organizing the DMCA protests in Minnesota. We're passing out fliers and staging protests, but haven't managed to get any press. We're also trying to get a face-to-face meeting with our senators...but no luck so far -- their offices haven't even called us back, despite both written and phoned requests for a meeting.

The problem is, we're technology people, not activists, and we don't know how to lobby effectively. What's your advice? How can we get the attention of our senators? How can we attract media attention (in a respectful way, that is)? Are there other activities we should be undertaking that would be more effective than what we're doing?

Jamie Love:
What worked well in the struggle to change US policy on patents in AIDS drugs for Africa were people doing some brave things, like participating in demonstrations, chaining themselves to office furniture in government offices, getting arrested, and doing lots of civil disobedience. Today everyone seems a bit spooked by the September 11 events, and I don't know how well this will work. But I believe many of these older direct action tactics are quite effective. Why not just find out where the Senator is going to speak and disrupt the event? That seems to get attention. And maybe some good attention if you can show that he meets with the other side, but doesn't get your views. Does he take money from MPAA or RIAA members? And won't meet with his own constituents? Will the local papers take letters to the editor? There are ways that you can get a Senator's attention, and show him that it is in his interest to give you the time of day. Call me and we can talk about this.

13) consumers and quality
by tim_maroney
Ralph Nader's consumer advocacy has always been first and foremost about quality, of which safety is a subset. Given that the commercial operating systems (MacOS and Windows) are much more user-friendly than the current slate of Linux offerings, and that even many Linux advocates have now come around to admitting that fact, how does Linux advocacy benefit the consumer? Isn't it strange for a consumer advocacy organization to be advocating a lower-quality product over a higher-quality one?

Jamie Love:
I think you have to look at the longer run. Where is Microsoft taking us? Where is AOL/TW taking us? What will it take to get a paradigm shift away from Microsoft, and what would be the benefits?

One thing that is unacceptable are actions to undermine the Linux or other alternatives. We think the USDOJ should stop Microsoft from undermining dual boot PCs. We think that remedies in the Microsoft case should make it easier for rivals to be interoperable with Microsoft products, that Microsoft should be restrained from using file formats as an anticompetitive weapon, particularly against its installed base, in order to force unwanted upgrades. Every OS has its strengths and weaknesses, and we favor more biodiversity in the OS space.

Jordy writes "Well this report just came out today, a report that Microsoft has overcharged the computer industry $10 billion dollars for it's OS. Microsoft rebutted this and issued it's own press release stating that it's OS was comparable to other OS's. They list, amoung others, Sun Solaris as a comparable product to Windows98. You can read the highlights in an article at news.com." The report is rather interesting, actually, and has some fairly intriguing pricing data in it. Update C : The news.com link has been fixed.

Chris Saylor writes "David Chun, a student from UCLA, called a dozen PC manufacturers asking if he could buy a PC without buying Microsoft Windows. " You can read results of the survey. I've recently recieved a few contradicting emails about Dell's rumored status on this adventure, and this page confirms that Dell does not offer any option in this department.

Rob Davenport wrote in to tell us about Ralph Nader's take on the MCI/WorldCom Merger. If it goes down, they collectively own 40-60% of the backbone. The fear is that we will be charged per byte. You can read more here.

DJ Ierardi writes "I don't recall seeing this posted here: Ralph Nader encourages Michael Dell to pre-install Linux" here is the link. Sure, it won't happen, but it's still interesting.