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Check out the document I wrote in my signature (a newer version is here

As well as my blog.

Interesting article on the subject of open access points.

Hale, Robert V., "Wi-Fi Liability: Potential Legal Risks in Accessing and Operating Wireless Internet" . Santa Clara Computer and High Technology Law Journal, Vol. 21, p. 543 http://ssrn.com/abstract=692881

Doesn't that provide a slam-dunk defense for anyone accused of infringing a software patent? It seems that if you were sued for infringement you could just point out to the court that the patent was erroneously issued. After a couple such cases, the precedent would be firmly established and future defendants would hardly have to do more than show up.

No :)

If privacy means different things in different contexts, what we need is a taxonomy.

Ok it isn't nearly as clear cut as I put it. But it certainly isn't as clear cut as you put it either. Have a read.

Apportionment is an absurdity in our Constitution leading to a result that nobody debated, nobody intended and nobody wants.

The original reason for the apportionment was to approximate a tax on net assets under the Articles of Confederation! During the early stages of the country the distribution of asset value was very much dependent on the presence of population to turn natural resource, primarily land, to productivity. Rather than trying to track everyone down and assess their property values, the States were essentially taxed on their populations.

So if the Congress wants, it can go back to the simple system of directly taxing just States.

Alternatively it can even go to a more rational system of just charging reinsurance fees to the States for the cost of underwriting defense of property rights and let the States, as regulators of premiums within their own jurisdictions, figure out how to tax assets appropriately.

Well, I suggest you read this case regarding copyright.

because you used a computer to read my post, you did copy it as far as copyright law is concerned.

It has been suggested one of the main reasons crime fell starting in the early nineties has nothing to do with sociological or governmental change.

You remember a little known rule in 1973 called Roe Vs Wade. It's the one that declared that out lawing abortion violated the constitution. People conceived after that ruling would have been born in late 73 early 74, making them around 18 yrs. old in late 91 early 92.

There are those who disagree with the results and they are by no means conclusive, I merely raise it to show that problems are NEVER one dimensional. Holistic views are difficult to obtain.

Patents are under the designation for intellectual property, which is not the same thing as real property. The Fifth Amendment's taking clause (requiring compensation for the taking of real property) does not apply to patents. Note, patents are promulgated by Congress under Article 1, Section 8, Clause 8 of the Constitution.

As much as the RIAA would like you to think that intellectual property rights (like copyright) are absolute property rights, they aren't. See Prof. Mark Lemley's paper [ssrn.com] on this topic.

Some might remember the Yahoo/Nazi paraphernalia case of a few years ago. Before that action was brought against Yahoo.com in France, their French subsidiary (Yahoo.fr) had removed all Nazi items from their auction site. The subsequent case (in which the American Yahoo's auction site was exhibiting nazi paraphernalia, a violation of French penal law) dealt primarily with jurisdiction. Yahoo.com continued to sell the items despite the French order (nice to know they had no qualms profiting off these items). The company went to the District Court in California to basically attempt to invalidate the French order and argue that there was no jurisdiction, and the court granted summary judgment for Yahoo.

The Court of Appeals recently reversed this decision, however, in November 2004. For those interested, this recent decision is here, and Professor Joel Reidenberg at Fordham Law School (he's up there with Lessig in Cyberlaw issues) has written extensively on the case and its effect on jurisdiction over internet activities in two articles (here and here).

Some might remember the Yahoo/Nazi paraphernalia case of a few years ago. Before that action was brought against Yahoo.com in France, their French subsidiary (Yahoo.fr) had removed all Nazi items from their auction site. The subsequent case (in which the American Yahoo's auction site was exhibiting nazi paraphernalia, a violation of French penal law) dealt primarily with jurisdiction. Yahoo.com continued to sell the items despite the French order (nice to know they had no qualms profiting off these items). The company went to the District Court in California to basically attempt to invalidate the French order and argue that there was no jurisdiction, and the court granted summary judgment for Yahoo.

The Court of Appeals recently reversed this decision, however, in November 2004. For those interested, this recent decision is here, and Professor Joel Reidenberg at Fordham Law School (he's up there with Lessig in Cyberlaw issues) has written extensively on the case and its effect on jurisdiction over internet activities in two articles (here and here).

Blizzard, and almost all MMORPG developers have to have a pretense of being against eBay. Otherwise, a court could rule that the in game objects have value and that if there was a server crash, Blizzard would have to pay restitution. A similar scenario would exist if Blizzard were to shut the WOW servers down in five years.

If Sony were to shut-down Everquest 1, the 77th richest nation in the world and all the entailing wealth would be destroyed. It's bizarre to think about. Certainly any Everquest or WOW player would say that there character and virtual posessions have real world value. But Sony and Blizzard must reject that notion so they won't have to pay for the conversion of every in game item to real-world dollars every time there is a server crash.

Respectfully, I am not sure what organizations you are referring to.

I posted links in my original reply to you. For clarity's sake:

• AIPLA statement: see point 10.
• IPO statement: see point 10 (and 6)

It sounds strange, since the whole concept of IP is based on economic incentive.

That's the theory, yes. In practice, not all types of IP are able to meet that goal. There is no economic law that says "more and stronger exclusion rights per definition result in a healthier economy". And there's also no juridical law that says "lawyers will always defend what's in the best interest of the economy as a whole".

Actually, I was talking about investment incentive, not incentives to innovate. Competition indeed promotes innovation. But property rights promote investment.

One person's rights are another person's limitation. You always need a proper balance to get good results on the whole. You cannot look at single entities in the market and conclude from that it must be beneficial on the whole (or harmful for that matter).

Case in point: offering one company a monopoly on selling things via the internet, makes investment in all online shopping companies a lot less attractive.

You also say "almost all studies...." I assume this means you have read some studies that support the arguments for patents in software.

Indeed, there is also one economical study in the entire world (that I know of, I really don't know any others) that claims that software patents are generally beneficial, and that patent thickets are a myth. You can find it here. And here's a rebuttal.

Litigation is not the only way patents are used. There is a large market in licensing, and lots of money changes hands based on patents without ever litigating.

Yes, but that's not productive. In fact, every time such a transfer occurs, you extract money from the software business and invest it in lawyers. Something like that is only defensible if the effects on the whole are positive, e.g. if such transfers are necessary to spread knowledge throughout the industry. That is not the case with the software sector (see the studies I pointed you to).

Your argument, respectfully, sounds like this: "Civil tort litigation can cost millions. Therefore we should do away with tort claims."

My argument was simply that small companies do not have the means to enforce software patents, and that therefore arguing that they are beneficial for small companies is at least very doubtful. That's not even specific to software patents, it's a general recognised problem of the patent system.

However, in some sectors this negative effect may be offset by other, positive effects that patents have (e.g., if you need tens of millions of dollars to even start doing your product development, the cost a few patents on top of that can be disregarded).

The point remains that lots of capital goes into software based on property rights.

You keep talking about "property rights" as if software patents are the only form of property rights in the software industry. They're not by a long shot, as you probably know. I'm also not asking for abolishment of copyright or trademarks or anything else.

Remove those rights and you will weaken the industry by reducing the amount invested in it.

I fail to see how you can weaken an industry by stopping to invest in something which hampers that same indust

See the book I mentioned in my post. And here is another reference: Shareholder Primacy Norm. Then just google.

The initial case was Ford vs. Dodge in 1916 (at the time Dodge brothers were shareholders in Ford).

It seems to me that some (past) executives of Enron, WorldCom, Tyco, Qwest, Arthur Andersen, etc., are paying fines or facing jail time for putting profits ahead of the public welfare.

No. They put their own welfare ahead of the shareholders welfare. They majorly screwed the shareholders.

I agree that software patents aren't the problem. In fact, I'm unaware of any actual patents on software. There are patents on methods or algorithms that are implemented in software, but that's justifiable. For example, if I made a control systems algorithm that I implemented mechanically or electronically it would certainly be patentable, so why shouldn't it be patentable if I implement it in software?

Next, in case of a mechanical construction, you do not get a patent on "X implemented in a mechanical way", but on "a mechanical construction which works like this and this (and which thus does X)". I.e. you generally do not get a patent on what the construction does, but how the construction is built. And that's logical, because that's the only way there is to protect your construction work from copying.

In case of software, the way you constructed your program to do X is already protected by copyright. The patent is generally simply on "doing X in software".

Finally (and most importantly), there is no inherent "inventor's right". This is in stark contrast with copyright, where there is an inherent moral right of the creator on his creation. Patent law is a purely economical law. You should allow patents in a field if there are serious indications it will encourage innovation there and benefit society as a whole, and otherwise you shouldn't.

Case in point: there are tons of studies which show that software patents are unnecessary to stimulate innovation in the software field (the main driving force is competition there), and even detrimental. There's only one economical study I know of that claims software patents are generally beneficial.

What seems to be the problem is the defacto removal of patent restrictions regarding obviousness and prior art, along with the patent duration. Very obvious things are getting patented in software. It's like patenting a plastic doll because it now has a new hat

But my biggest concern with this Munich thing is why the concern over Linux specifically? Patent violations are just as, or more, likely in proprietary software.

In other words, the reasoning behind slowing Linux implementation in Munich makes no sense to me.

First of all, the most important factors relating to whether a patent can be overturned or not are the actual claims in the patent. No statistic can save a facially invalid patent.

Next, there are procedural and statutory hurdles that do need to be overcome, but the statistics in the CNN article is misleading. This is because while 7M patents might 'exist,' a smal small percentage of them are actually maintained. The percentage of patents that generate net positive revenue, either through licensing or direct sales of products is miniscule.

Finally, valuable patents do get litigated, but they are a small percentage of the above net profitable patents ("at most only about two percent of all patents are ever litigated, and less than two-tenths of one percent of all issued patents actually go to court." [emphasis mine; quote from linked SSRN paper.])

Rational firms/inventors will be willing to spend P(n-$0.01) in the cost of defending a patent, where n is the net revenues derived from the patent and P is the probablility of successfully defending the patent. (Note that P is affected by not only the substantive validity of the patent, but also procedural issues, such as the financing of the patent's challenger and the cost of litigation to them).

Bottom line: crappy patents will fall quickly if they are crappy enough, barring unclean hands on the part of the challenger.

Now if you could all focus some positive energy my way so I can pass the bar exam that I will take in less than 2 weeks. I promise not to patent the process of harvesting said energy.

cleetus

You still haven't answered the question of when innovation actually gets hindered.

Is there any evidence that innovation in software is being hindered by patents?

OSes, server applications, programming languages and environments, user interfaces, network protocols, security infrastructure, and other areas seem to be improving as fast as ever

And then there's the problem with patent thickets, the fact that software patents pretty much nullify most protection an author gets from copyright (one software patent can completely forbid you from exercising your author's right), the inherent problem of trivial patents, legal uncertainty, ...

In fact, the only time I've seen a patent cause real trouble is in KDE, where some people attempted to blatantly copy a Mac OS feature only to find it was patented. In this case the patent worked as intended.

Keep in mind that patent law is not a law designed to allow innovators to rightfully profit from their work. This is in contrast with copyright, where there is a moral right associated with the creative work of an author. Patent law is merely an economic law, and is supposed to be only applied if it results in a general benefit to society (after all, it's society that grants a monopoly, so it's only in the interest of society to do that if society will benefit from it, be it under the form of more innovation, better economic situation, ...).

Patents are evil. They are against my communist/christian/leftist sway and only serve the greedy.

I do like my "greedy capitalist" funded affluent lifestyle however and thus must reconcile my zealous lunacy due to the fact that funding of innovation is in fact promoted by patent protection.

It's available on SSRN . Search 'castronova' and take your pick. Or go here. One thing: EverQuest's GDP PER CAPITA is bigger than India's. I don't why people keep reporting it as 'EverQuest's GDP is bigger than India's.' It isn't. That would be absurd. PER CAPITA. {sigh}.

It's available on SSRN . Search 'castronova' and take your pick. Or go here. One thing: EverQuest's GDP PER CAPITA is bigger than India's. I don't why people keep reporting it as 'EverQuest's GDP is bigger than India's.' It isn't. That would be absurd. PER CAPITA. {sigh}.

All empirical studies carried out until now answer that question with either a "We don't know" or "NO!" (Bessen&Hunt, FTC study, European Commission Directorate General on Research study, ...).

Actually, a more recent (and more rigourous) empirical study concluded just the opposite:

The myth of the software patent thicket

Enjoy.

It is also worth noting that this decision is widely considered to have been incorrectly decided, according to every one of the dozen or so books on technology law I've read through. (The first one that comes to mind is Kaner&Fels' book on software law; couldn't find a link to the book but see Dr. Kaner's page for information.)

So no, there isn't a whole lot of case law on the books on this point, but as far as I can tell it is fairly controversial. (Personally, I think ProCD was decided incorrectly, too, but again, IANAL.)

Here are the rules for trademarking names and infringement. This is written for a non-laywer, so the english is fairly free of jargon.

The commonly quoted case is that of LEXUS the law archival and search company and Toyota who wanted to use the same name of thier luxury division. LEXUS sued and lost.

We have researched this concept from the perpective of the economics of information, and the results might be of interest to the readers of this thread. Our work was recently described Jan 15th in the WSJ, and was presented at the MIT spam conference on the 16th of Jan. Results are publically available on SSRN (Social Science Research Network).

We really think that this is the right way to do it; it restores control to the individual recipient, halts spam, and creates a market for information exchange. (We'd advocate using an open standard and multiple competitive bond underwriters).

Let's ask Russia, they have TONS of extra money

Just take a look at "Some Realism about Environmental Skepticism: Bjorn Lomborg's 'The Skeptical Environmentalist'" by DOUGLAS A. KYSAR.

Being short, I've researched this topic a bit and while most of the research corroborates this study, another study done by UPenn economists provides an alternative hypothesis. Here's the link to the paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id =293122

Basically, their argument is that a person's relative adolescent height is a better indicator than their adult height. Short kids who end up tall earn like short people, while tall kids who end up short earn like tall people. You could extend this and probably make some kind of argument about a child's self-esteem and self-confidence as being the ultimate indicator in how well they do as adults.

It's not loss of profit that the RIAA is worried about anyway, it's always been about loss of controll. If the RIAA can't force the public to think the artists it hand picks are cool, then they can't be sure of profits from manufactured bands.

I call BS. Advertising makes an artist popular, not availability. Even without P2P, indie artists are completely accessible: they make CDs too, and they let you buy them. But with or without P2P, they cannot compete with the RIAA's advertising machine. No, the RIAA is frightened of filesharing for precisely two reasons:

1. Loss of profit: someone able to attain a product for free is much less likely to buy the same (or loosely equivalent) product. We can claim that filesharing actually helps the industry, but financially the numbers are not with us.
2. Systemic obsolescence: the RIAA has grown an industry from distributing music. If filesharing technology becomes sufficiently widespread, accepted, and easy to use, then that industry is no longer useful.

Well speaking of OSes ... I think everyone should read the following report to the Library of Conrgress (it was a link on one of the above references)

Anyways ... it makes 2 claims about DVDs. Saying that the Copyright law forbids using a copyrighted medium from dictating a hardware platform. But that is exactly what the DVD-CCA does. It sites Alcatel USA vs. DGI Technolgies Which would basically justify all of the Linux DVD players out there.

So that combined with the fact that DVD region encoding restricts the free flow of global trade, basically blows a big hole in the DRM abilities of the DVD format. Although, I just found out that Region Encoding isn't so much about pricing equity, so much as allowing DVDs to be release in the US, before the movies have even hit the theaters elsewhere in the world. Although that said ... there should be no reason that a Region 1 DVD player can't play all other DVD regions (unless it had something to do with restricting the balanced flow of the DVDs as a commodity.)

Try reading this 2001 paper by Mark A. Lemley:

http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID26 1400_code010313510.pdf?abstractid=261400

I found the conclusion especially interesting:

The PTO is rationally ignorant of the objective validity of the patents it examines. For the PTO to gather all the information it needs to make real validity decisions would take an enormous investment of time and resources. Those decisions can be made much more efficiently in litigation, because only a tiny percentage of patents are ever litigated or even licensed to others. Thus, we should resign ourselves to living with a system in which âoebadâ patents do slip through the PTO undetected. Recognizing that this is the case, however, should also prompt us to strengthen the validity inquiry made by the trial courts. Courts should not be ignorant of the facts, and they should not presume that a patent is valid merely because the PTO says it is.

Unless there are a great deal more patents on obviously invlaid patent occur, the likelyhood of requiring a higher level of quality patent examination is not going to happen. The SPI database (www.spi.org) is certainly helpful, and we should encourage businesses to willingly participate, to everyone's benefit.

Also, my understanding is that both the USPTO and the Japanese Patent Office (JPO) are implementing changes in preperation of mutual recognition of patents by 2004. This means that patent applications validated in one country will automatically be validated in the other. This will certainly help the USPTO, which recieves its largest chunk of foreign applications from Japan. The US might also be relying on the fact that the JPO also has a much lower percentage of applications that are ultimately awarded patents.

With Japan's focus on shifting towards a knowledge economy, and Linux taking a significant role in shaping independent software industries, the next couple of years are going to be quite intersting.

It is difficult to see any evidence that African-Americans in Florida were systematically discriminated against in terms of voting. Even assuming that cross-sectional evidence is useful in evaluating this claim, it appears more consistent with indicating that the problem was worst in those counties where African-Americans were county election supervisors. It is difficult to reconcile that evidence with some notion that there was intent to disqualify African-American voters. The panel data makes it very difficult to ascertain any systematic bias either intentional or unintentional against African-American voters.

For all the kiddies who cant access the pdf file:

http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID39 9740_code030507630.pdf?abstractid=399740

Enjoy! :)

Edward Castronova wrote a paper a while back concerning emerging economic theory within virtual worlds.
The paper goes into much greater detail about the type of people who play MMORPGs than the BBC article. In addition to a short history of MMORGSs, he also gives his thoughts on the future of avatars as our means of shopping/working/interacting.
"Journal entry, 18 April. I have called my avatar 'Alaniel.' I land in Norrath for the first time, in a town called Freeport. I am standing in a stone courtyard behind a gate. I see several lean-tos and a firepit. All around I hear the sounds of footsteps and I see humanoids of various shapes and sizes running back and forth, names like "Zikon" and "Sefirooth" over their heads, wearing odd costumes, carrying strange implements. Are they people? Or merely beings created by the software? Statements flow into my chat box at a rapid rate. "Galadriel shouts: Looking for bind at gate." I see a being with the name Galadriel. Is he talking to me? What is he saying? "Friitz says out of character: brt -omwb." What? No sign of anyone named Friitz. "Ikillu auctions: WTS bone chips." An auction. What should I do? I feel the presence of humanity, but I suddenly feel like a stranger in a very foreign culture. I become afraid of breaking some taboo, of making a fool of myself. Clumsily, I maneuver Alaniel toward the nearest lean-to and hide behind it. No one can see me here." (Castronova, p.2, Virtual Worlds, 2001)

I like the footnote on page 17 of their report:

'By presenting non-information theoretic statistics and a considerable amount of evidence interpreted without any regard to information theory, this paper hopes to aoid being grouped with a series of papers generically entitled "Information Theory, Photosynthesis, and Religion."'

Economics papers are funny. Hehehe.

IANALBMSI (I am not a lawyer but my spouse is)

Because it lacks consideration the GPL will not hold up in court.

to quote:

"3. Some CONSIDERATION must pass between the offeree and the offeror. ... The reason this is unenforceable is that there was no *exchange* between you, no quid pro quo; Alice didn't give *you* anything of value in exchange for your promise. Without that -- without what the law calls "consideration" for your promise -- your promise is not enforceable in court."

The GPL will in all likelyhood is worthless.

People might be interested in looking at the article Lessing is talking about, since the Red Herring article does not link to it. enjoy

There is another reason publishers are reluctant to go after doujinshi writers. There are quite a few professional manga artists that got their start by writing doujinshi. Some publishers see the doujinshi market as training ground for new professional manga artists, from where they can hire the best. Also, some are afraid of offending their artists, who still have many connections with the doujin field.

Lawrence Lessig refers to an article published in the Rutgers Law Review this past fall by Temple Law professor Salil Mehra. The Mehra paper is here in pdf form.

A later study by Lott and William Landes found that concealed-carry prevents mass shootings. This study is available online here. There is also a list of his non-academic articles here and a brief bio here.

Gary Kleck has also done many studies on the issue of guns, crime, and self-defense. There is a good introduction and an interview with him here, a summary of his work here, and a his own home page here.

It might be worth noting that none of the above studies were funded by gun advocacy groups, gun control groups, gun manufacturers, or any other special interests. They are politically balanced -- John Lott is an iconoclastic conservative/libertarian, and Gary Kleck is a lifelong liberal Democrat. (I don't know David Mustard's affiliation.)

Also, they have impeccable credentials. John Lott got his Ph.D. in economics at UCLA, and David Mustard at University of Chicago. Gary Kleck got his Ph.D. in Sociology at the University of Illinois at Urbana.

There is an extensive list of articles on gun control here. The folks running this site are against it, but they don't seem to be connected to pro- or anti-gun groups. They have, among other things, an excellent chart showing gun ownership rising as gun crime stays steady and then falls here.

This should be enough to get you started -- feel free to post follow-up for sent me e-mail if you have any questions! --Robert A. Book, Ph.D. rbook "AT" pobox.com

MARK DUGGAN
University of Chicago - Department of Economics

October 2000

Abstract:
This paper examines the relationship between gun ownership and crime. Previous research has suffered from a lack of reliable data on gun ownership. I exploit a unique data set to reliably estimate annual gun ownership rates at both the state and the county level during the past two decades. My findings demonstrate that changes in gun ownership are significantly positively related to changes in the homicide rate, with this relationship driven entirely by the impact of gun ownership on murders in which a gun is used. The effect of gun ownership on all other crime categories is much less marked. Recent reductions in the fraction of households owning a gun can explain at least one-third of the differential decline in gun homicides relative to non-gun homicides since 1993. I also use this data to examine the impact of Carrying Concealed Weapons legislation on crime, and reject the hypothesis that these laws led to increases in gun ownership or reductions in criminal activity.

Here's slashdot's article on the academic paper (which is here).

What tends to be overlooked in the "open spectrum, new wireless paradigm" jargon is that persons always have had freedom to emit radio energy in certain ways. Like being alive (infrared body-heat radiation), putting on wool sweaters (ultra-wideband spark transmissions), and starting car engines (a very significant source of RF emissions). For details, see "Revolutinary Ideas for Radio Regulation," pp. 59-62, available at galbithink.org and on SSRN.

A key policy question is how to recognize natural rights and freedoms to use radio to communicate.

For a detailed, non-hysterical analysis of the Patriot Act, look here.

If anyone would like a good explanation of the implications of the Patriot act, you might want to check out this.

See Stevan Harnad's page and SSRN for examples of progress. The problem is very simple: inertia. Scholars have no interest whatsoever in propretary journals. The web could totally replace scholarly publication. People make up all sorts of reasons not change, but that is the nature of people. It will happen. The objectors have to die off first.

The full research paper on this can be found here

I tried to post this article last week but it seems like I did something wrong because it got rejected.

Incidentally, this case really frightens me.

An interesting paper referred to in the EFF 2600 brief is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =267848 entitled "Locating Copyright Within the First Amendment Skein" by U Texas law professor Neil Netanel. A few excerpts from that abstract:

As copyright law has metamorphisized over recent decades, copyright owner prerogatives have become increasingly bloated, raising serious questions about their need and fit for copyright's incentive-for-original-expression rationale and imposing an increasingly onerous burden on speech. And in parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny.

I argue that, in line with prevailing First Amendment doctrine, copyright law constitutes content-neutral speech regulation and should be subject to intermediate scrutiny. Copyright law, however, falls within an emerging subcategory of content-neutral regulation. That subcategory consists of government regulation that distributes speech entitlements among prospective speakers, thus giving rise to a suspicion of successful rent-seeking by the highly organized interests to whom the entitlements are granted. In such instances what appears to be courts' implicit suspicion of improper government motive has sometimes led, and ought to lead, to a more rigorous, searching application of intermediate scrutiny than is often otherwise the case.

The big media publishers claim ownership of the means of production for all "intellectual property" and they have bought these new copyright laws from Congress in an attempt to maintain control over all use of "their" products in the new digital age of the Internet.

These media giants have argued (so far successfully) that the First Amendment has nothing to do with copyright law because of the distinction between idea and expression and between expression and action. The courts in Eldred v. Reno (now Eldred v. Ashcroft) against the copyright term expression agreed with this argument (wrongly, I believe).

If courts continue to fail to wake up to the changed circumstances that Professor Netanel notes, then the First Amendment will not protect us when we publish anything on the Internet. First it will be the "hackers," then the rest of us who will be pushed off by these "rent-seeking" monopolists. Look, libertarians, it has now become apparent that it is not government that is taking away our First Amendment rights, it is courts following bad legislation that only favors big publishers.

Professor Netanel is a real conservative who has long resisted the arguments of his more liberal colleagues that Free Software deserves some protection against the media giants using copyright law. We should be glad he is now on our side. The 2600 arguments are strong and deserve to win.

Thank you for the (mostly) kind words. I think the accusation of bias is probably fair.

For a good exposition of the pro-DMCA position from an independent copyright scholar, see Jane Ginsburg's "From Having Copies to Experiencing Works: The Development of an Access Right in US Copyright Law." The only online citation I am aware of is at the Social Science Research Network archive: http://papers2.ssrn.com/paper.taf?ABSTRACT_ID=2224 93 . Ginsburg has also posted a slightly more recent paper, "Copyright Use and Excluse on the Internet," to SSRN. That URL is http://papers2.ssrn.com/paper.taf?ABSTRACT_ID=2397 47

-- Jessica Litman