Magicians, chefs, and stand-up comics protect their creations without resorting to legal authorities. This article is about what they can teach lawyers - and Congress - about the future of intellectual property.

Creative vigilantes

This paper, written for the 4th Asian IP Law & Policy Day co-organized by the IP Academy of Singapore (Singapore) and Fordham Law School (USA) in conjunction with the annual Fordham Conference on International IP Law & Policy, traces the development of the free software/open source (FOSS) and creative commons (CC) movements and the rise of user-generated content (UGC). In light of existing international treaty standards for copyright protection, growing global Internet penetration and various case law developments, the article considers whether the combined phenomena of FOSS, CC and UGC provide sufficient basis for a re-tilting of the copyright balance toward the user rather than the original copyright owner. Finally, the article examines whether the philosophy, rhetoric and experiences of the FOSS and CC movements make them appropriate models for copyright protection for UGC.

User-Generated Content: Has the Time Come for Users' Rights?

How did people think about copyright in the nineteenth century? What did they think it was? What was it for? Was it property? Or something else? How did it function? Who could it benefit? Who might it harm?

Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891 addresses questions like these, unpacking the ideas and popular ideologies connected to copyright in the United States during the nineteenth-century.

This era was rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitation, and ferocious arguments about piracy, reprinting, and the effects of copyright law. Then, as now, copyright was very important to a small group of people (authors and publishers), and slightly important to a much larger group (consumers and readers). However, as this dissertation demonstrates, these larger groups did have definite ideas about copyright, its function, and its purpose, in ways not obvious to the denizens of the legal and authorial realms.

This project draws on methods from both social and cultural history. Primary sources include a broad swath of magazine and newspaper articles, letters, and editorials about various copyright-related controversies. Examining these sources – both mainstream and obscure – illustrates the diversity of thinking about copyright issues during the nineteenth century, and suggests alternative frameworks for considering copyright in other times.

Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891

Anonymity is Hard.

We present a new class of statistical de-anonymization attacks against high-dimensional micro-data, such as individual preferences, recommendations, transaction records and so on. Our techniques are robust to perturbation in the data and tolerate some mistakes in the adversary's background knowledge.

We apply our de-anonymization methodology to the Netflix Prize dataset, which contains anonymous movie ratings of 500,000 subscribers of Netflix, the world's largest online movie rental service. We demonstrate that an adversary who knows only a little bit about an individual subscriber can easily identify this subscriber's record in the dataset. Using the Internet Movie Database as the source of background knowledge, we successfully identified the Netflix records of known users, uncovering their apparent political preferences and other potentially sensitive information.

See also:

Hushmail Spills it to Feds

AOL Search Database

Why Information Security is Hard

Don Kerr, on Anonymity and Privacy

Seeing Corporate Fingerprints in Wikipedia Edits

WikiScanner on the Colbert Report

How To Break Anonymity of the Netflix Prize Dataset

This story is a month old now, but I had missed this (irony?) in the first pass through:

What really tops the whole story off is that Ebbert wore the same outfit on the return flight to San Diego later that day. A female flight attendant also took note of it, according to Ebbert.

“I was complimented by the stewardess on my return flight,” she said.

Thrown off plane for too-skimpy outfit, later complimented by flight attendant

Your lists of friends and connections on the social websites that you use, sometimes called your social graph, belongs to you. No one company should own who you know and how you know them. OpenID, which was born at Six Apart less than two years ago, was successful by embracing a similar philosophy: no one company should own everyone’s online identity. An open social graph is just as important as an open identity.

Six Apart: We Are Opening the Social Graph

This paper was recently covered by James Surowiecki in The New Yorker.

The orthodox justification for intellectual property is utilitarian. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. This orthodox justification is logically straightforward and well reflected in the law. Yet a significant empirical anomaly exists: the global fashion industry, which produces a huge variety of creative goods without strong IP protection. Copying is rampant as the orthodox account would predict. Yet innovation and investment remain vibrant. Few commentators have considered the status of fashion design in IP law. Those who have almost uniformly criticize the current legal regime for failing to protect apparel designs. But the fashion industry itself is surprisingly quiescent about copying. Firms take steps to protect the value of trademarks, but appear to accept appropriation of designs as a fact of life. This diffidence about copying stands in striking contrast to the heated condemnation of piracy and associated legislative and litigation campaigns in other creative industries.

Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected - and economically successful? The fashion industry is a puzzle for the orthodox justification for IP rights. This paper explores this puzzle. We argue that the fashion industry counter-intuitively operates within a low-IP equilibrium in which copying does not deter innovation and may actually promote it. We call this the piracy paradox. This paper offers a model explaining how the fashion industry's piracy paradox works, and how copying functions as an important element of and perhaps even a necessary predicate to the industry's swift cycle of innovation. In so doing, we aim to shed light on the creative dynamics of the apparel industry. But we also hope to spark further exploration of a fundamental question of IP policy: to what degree are IP rights necessary to induce innovation? Are stable low-IP equilibria imaginable in other industries as well? Part I describes the fashion industry and its dynamics and illustrates the prevalence of copying in the industry. Part II advances an explanation for the piracy paradox that rests on two features: induced obsolescence and anchoring. Both phenomena reflect the status-conferring power of fashion, and both suggest that copying, rather than impeding innovation and investment, promotes them. Part II also considers, and rejects, alternative explanations of the endurance of the low-IP status quo. Part III considers extensions of our arguments to other fields. By examining copyright's negative space - those creative endeavors that copyright does not address - we argue we can better understand the relationship between copyright and innovation.

See also my recent post about space aliens and fashion.

The Piracy Paradox: Innovation and Intellectual Property in Fashion Design

This paper undertakes an econometric investigation of the impact of radio play on sales of sound recordings using a sample of American cities.

The results indicate that radio play does not have the positive impact on record sales normally attributed to it and instead appears to have an economically important negative impact, implying that overall radio listening is more of a substitute for the purchase of sound recordings than it is a complement.

This finding indicates that creating a set of property rights to allow this market to function properly is different than has been suggested by prior research. This research also exposes a fallacy of composition in applying to an entire market a generally accepted positive relationship that holds for individual units.

New technologies changing the nature of radio broadcasts are likely to make this topic increasingly important in the coming years.

Interesting. SoundExchange wants to keep radio alive, although it may be in the financial interest of artists to let it go.

Don't Play it Again Sam: Radio Play, Record Sales, and Property Rights

I recently posted about the Peer to Patent project. Patent reform is a major subject of the new, monster issue of First Monday, from which the recommended article is drawn.

Tougher examination of patent applications reduces anti–commons effects while reducing the frequency and costs of litigation. Modelled after open source/free software collaborations, the “Peer to Patent” initiative seeks to improve the quality of patents by developing a Web–based infrastructure whereby volunteer experts external to the PTO’s review applications, assemble prior art information, and submit the results of their collective work back to the Patent Office examiner.

This paper endorses the spirit and goals of the “Peer to Patent” initiative, but questions its reliance on the open source model.

A discussion of the functions of peer review, the meaning of peer, and the motivations of the reviewers in different contexts indicates that editorial peer review — not open source — can provide a more effective model for integrating peer review of patent applications into PTO practices.

Bringing Peer Review to Patents

You might consider this post a follow-up to the NYT op-ed from yesterday.

The patent system needs our help. The United States Patent Office is actively seeking ways to bring greater expertise to bear on the review of patent applications and ensure that only worthwhile inventions receive the patent monopoly. Currently, underpaid and overwhelmed examiners struggle under the backlog of applications. Under pressure to expedite review, patents for unmerited inventions are approved.

The Community Patent Review project seeks to create a peer review system for patents that exploits network technology to enable innovation experts to inform the patent examination procedure. In every field of scientific endeavor, peer review is a critical quality control mechanism to improve innovation.

The Community Patent Review project aims to design and pilot an online system for peer review of patents. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems.

For more information, please read the background paper: "Peer to Patent".

See also the most recent press release from USPTO.

The Peer to Patent Project - Community Patent Review