Daily Tech News show is made possible by its listeners. That's you. Thanks to all of you, including Reed Fishler, Larry Bailey, Michelle Serju, and our new patron, Sasi Kamalash. Welcome, Sasi. On this episode of DTNS, Twitter gives verified blue check marks out for free to some folks. And even those folks aren't necessarily happy about theirs. Plus, we travel to Antarctica for the latest on internet connectivity there. And you probably use a VPN. But when do you really need to? Patrick Norton breaks it down. This is the Daily Tech News for Thursday, April 4th, 2024. From Studio Animal House, I'm Sarah Lane. I'm Columbus, Ohio. I'm Rob Dunwood. And we head to the 314 on Patrick Norton. And I'm the show's producer, Roger J. Boy, do we have a good show for you. And unless you want to tell everybody in GDI, Patrick, we're not going to talk about the DMV at all. I'm heartbroken. I bet you are. I bet you are. Anybody who deals with a DMV in the US knows, it's just not a fun day for 48 hours in Patrick's situation. But let's get into some technology with the Quickets. The financial time sources say that Google may start making users pay for search results that use Google's high-end Gemini advanced model using a subscription model. Google doesn't currently charge for anything related to its search engine. So this would be a first, although the company apparently still plans to offer completely free search results that use Google's standard Gemini plan, not the advanced plan, but the standard plan, without any kind of paid subscription model. The market demand for this enhanced type of AI, enhanced search, is sort of unclear at this point as for competitors, Microsoft's massive AI investment in its Bing search engine hasn't taken much from Google's market share. Reuters sources say Google's parent company Alphabet has been mulling over an offer to buy HubSpot, the online marketing software company with a market value of $35 billion. It would be Alphabet's largest acquisition ever and let the company put some of its nearly 11, I should say 111 billion dollar cash pile to work. Alphabet hasn't made an official offer to HubSpot, but the company reportedly did meet with Morgan Stanley Investment Makers in recent days about a potential offer. Potential offer might be official offer, or might not. Russia's Federal Anti-Monopoly Service, or FAS, announced on Thursday it asked Apple to explain why Russian users of Apple devices don't have full functionality when it comes to accessing banking and payment services. The FAS said that most Russian banks have been removed from the App Store, but Apple isn't letting users install apps from anywhere but the App Store, rendering it impossible for Russian banks and contactless services to function normally. In its statement, the FAS said Apple's actions contained signs of violation of anti-monopoly legislation. Open AI's image generation tool, Dali, can now edit images directly from chat GPT. Dali also pre-set style suggestions to help inspire image creation, sort of like Android's AI-generated wallpaper prompts. The chat GPT integration at least in theory will make it easier for users to write prompts by simply telling chat GPT what they want and allowing it to take care of the rest. The Guardian sources report that the Israeli military, IDF, in this case, used an AI-powered database as part of a system called Lavender, that at one stage identified 37,000 potential targets based on their apparent links to Hamas. Six sources told the Guardian that Lavender was able to process large amounts of data to rapidly identify potential junior operatives to target. Four of those sources also say that at one stage early in the war, Lavender listed as many as 37,000 Palestinian men who had been linked by the AI system to Hamas or Palestine Islamic Jihad. Lavender was developed by the IDF's Elite Intelligence Division. All right, Rob, let's talk about why I might, well, I actually don't see a blue check mark, but why someone else might? Absolutely, so ex-formerly Twitter is now rolling out free blue check marks to some of its users that have more than 2,500 premium followers. Wednesday, some well-known journalists and other users with large following started reporting that their verified blue checks made a return to their accounts, even though they weren't paying for the premium distinction. Supposedly, any account with over 2,500 verified followers will now get premium features for free and any with over 5,000 get the ad-free premium plus tier for free. Some are speculating that this is a move by the Biax to lure news Twitter back to the platform given a variety of other social options. This is so confounding to me. So I've been, you know, I saw this story this morning and of course, the first thing I did was be like, well, you know, I don't have like the biggest following in the world, but I've been on Twitter for a while. You know, I've got a healthy amount of followers, probably 2,500 of them are premium, maybe. I don't have a check mark, so maybe it's personal, but assuming that it isn't, this might be rolling out. It might need me to have over then 100,000 followers total which I don't have, even though I'm close. I don't know. The company isn't telling a lot of people exactly what the details are of this, which is why I think it's sort of hilarious that a lot of journalists who do have big followings but very much were not paying for Twitter premium for whatever reason. Maybe it was financial, maybe it was, you know, to take a stand, who knows, for whatever reason, being like, ah, I have a check mark, but everyone should know I did not pay for this, okay? I'm not that guy. Patrick, where do you stand on this latest move by X2? I guess, try to get some journalists back, you know, engaged on the platform. Well, I mean, it's been really amusing to me because a friend of mine just in the last year and a half actually decided to become part of Twitter. So everything we all went through back like 12, 13 years ago, I'm watching him go through and working really hard not to say you should have been here last year, man, it was so much better. But he was like, oh, you probably have 2,500 verified followers and I'm like, the way it was, it's been really bizarre, right? Because Elon's like, anybody who has 2,500 verified premium subscriptions or subscribes, the wording was really odd. There was nothing in the X Help Center or as I like to call it, help.twitter.com since that's still what it shows up on the web.  Why don't I have a blue check? Oh, okay, I'm getting an ad-free experience if I have this many followers or I'm just getting premium and the ability to edit, you know, tweets and other things. And I'm pretty sure it's still not up in the Help Center defining this. And when you go into, because my friend was like, don't you have 2,500 verified followers? I'm like, I have no idea. And you go into your followers and it gives you kind of a gross number on the homepage. It doesn't give you a number of verified followers. So if you want to figure out how many verified followers you have, you actually have to manually count them, you know, with, I don't know, 10 or 15, however many per page and just click through and just start writing down the numbers and telling them to yourself because there's no way to do any of that. And they've deprecated and they've not eliminated that fundamentally deprecated a lot of the statistics tools inside of X, which makes it, you know, kind of frustrating if you're trying to track activity or something on your account since so many third party tools have been eliminated. You know, I think based on some of the stuff I'm seeing at another gig I work on, you know, they are potentially giving up the majority of their posting on X because they've gone from, you know, X has never been a place for Twitter. Nobody's ever been like, oh, I have a million followers on Twitter and every time I post something, a million people click through it.  It's kind of like spam. But even that tiny percentage is fundamentally eliminated in terms of click throughs to get to people's contents. So I think they're starving for engagement. I think they're starving for activity. I think they're trying to make, you know, since they eliminated, you know, they personally, I think they made tweetback worse, which is why Twitter, before it became Elon Musk's Twitter, before it became X, which is why they hadn't actually switched to the new version of tweetback, you know, so a lot of primary tools or third party phone tools have been gone. So I think they're desperate to bring anybody back and to try to promote some of the stuff they do. Yeah, I mean, there was, you know, when the check mark policy, the new one that's currently in place was implemented, it was like, okay, you pay, but if you're a news org, not just any news work, but you know, one that we decided is worthy of this, you can get a check mark, which was actually yellow rather than blue.  How many of those are bots? Hard to say, you know, every so often back in the old Twitter days, they would do like a bot sweep and we'd all say, oh my God, I lost 10,000 followers, but you never had them in the first place. But yeah, I think it's cloaked in mystery and I think it's easy to sort of chuckle and be like, well, nobody wanted the verified check anyway. Some people do, some people find value in that. There are things that you can do metrics wise to your point, Patrick, on X that you can do as a premium or premium plus subscriber that you can't do otherwise, but you know, a lot of us sort of railed against the machine and said, eh, we're just not gonna do it. If you happen to have been, you know, ushered into this new era, you probably got an email associated with your account that said, as an influential member of the community on X, we've given you a complimentary subscription to X premium subject to X premium terms by selecting this notice. So there's a little bit more, you know, fine print going on here, but I think in general, yeah, I think Twitter wants the news Twitter back. Yeah, I think X really miscalculated the number of people that would not sign up for their premium services. And because so many didn't and those voices got basically pushed down by the algorithm, Twitter really isn't the place for news anymore. It still kind of is, but it is not, you know, to the point that it was before. So I think this is the move by X to basically say, hey, we need to get these folks back, you know, to the top of our algorithmic, you know, you know, push out so that people can actually get news here as compared to going other places to get it. I think this is really just a move by X to try to make sure that they're keeping as many people engaging on their platform as possible. And maybe the, you know, the forced way that they did, the blue check marks did not work as they planned. Right. Well, and you can have almost no reach at all, but pay for a premium account and get pretty great placement, you know, when people are searching for news content or content at all. So this doesn't really solve the problem, but yes, definitely get some of the folks that may have said, you know, I've got elsewhere to go. I have other options more than ever to come back and take X seriously as sort of the number one place to share their content. All right, well, I mentioned at the top of the show that we were going to Antarctica. We're not actually going physically on the show. I am sorry, but someone is there and that person is Craig Porter, who recently took a job working on a power plant in Antarctica. So Tom asked him what the internet and connectivity situation is like on the latest episode of A Word with Tom Merritt. And here's an excerpt of that interview. So we're talking to each other, you're in Antarctica. That blows my mind that we can even do this. That of course means there's internet in Antarctica. How does that work? I don't necessarily mean for you to, you know, tell me the infrastructure layout of it, but like, how well does it work? It seems like it's working pretty well. It's pretty well. Yeah, so right now we're talking over Starlink. And Starlink is pretty new to USAP. You know, I think it's only been a couple of years where this capability has been around. I got my Bluetooth headphones going to my phone, which is hooked up to the wifi in the building, which is connected to the Starlink infrastructure and then it's going to outer space. So there's that. Before that, there is some slower internet and I'm not really sure how it works. I think it's also satellite, but it's military related or using like the government satellites and things like that. Pretty much everything is either satellite or like HF radio because there's no subsea cables or anything like that, at least to McMurdo station. And, you know, I don't know if that's in the cards anymore with the satellite capability that we have with Starlink.  I can have a chat with you from 10,000 miles away, you know. So it's really good.  Yeah. Are you able to like stream video? Or does it just all downloads? Yeah. I can stream like sometimes in the evenings I'll stream Twitch, you know, like I was watching the most recent Sumo tournament on Twitch. Wow. You know, I have a passing interest in Sumo. I mean, I'm not an expert or anything, but yeah, you can stream video, especially now because the station population is so low, the internet is a lot better. In the summertime, when there's six, seven, 800 people here, I'm told that that's not possible. Okay. So yeah, there's a lot of bandwidth constraints in the summertime that we don't have in the winter because there's just less people. Interesting. But it does seem like it's pretty capable. It's obviously working pretty well for us in a way that, you know, five years ago, I wasn't able to do. You are the second person that I have interviewed for a podcast who has been in Antarctica. The other one, I had to wait for them to come back to talk to them. So yeah, this is pretty amazing. Yeah, yeah, it's incredible. With the limited bandwidth, is there sort of a practice of courtesy to, you know, not use it for too long or? Not that I've seen. Okay. Yeah, maybe during the summertime. So far not. You haven't run into it, which means it's pretty good, right? Or otherwise people would start bringing it up. Yeah. Yeah. And there's also, the Starlink is not in work centers. So like down at the power plant at different mission critical facilities and things like that, there's no Starlink. There's only the official Wi-Fi for like official use and things like that. So yeah. So the Starlink is mostly for personal use then? Mostly for personal use, yeah. So like in the dorms, in the galley. Now you said that there's also, you told me before there's a pager network. There is a pager network. You do, which is interesting. Yeah, it's, and I don't know the details about it. All I know is people who are mission critical. So like power plant, water plants, you know, operational people, things like that. You know, the firefighters and the medical people things like that. We all, we have pagers. And so, you know, I can either email my pager or somebody can email me or there's like mass messages that get sent out.  There's, the weather has different conditions based on wind speed and temperature and visibility and things like that. So yeah, that was something I did not expect at all. It was like, hey, you can get paged. And I assume that the mission critical internet, Wi-Fi, pager stuff, that is campus wide versus the Starlink where I'm guessing the receiver is just in the galley area. Yes, yeah, exactly. So anywhere that I go on station, even, you know, like I said, Scott base is a couple of miles away, but they're tied in with us. So like we supply a lot of their power and their calm systems and their, their phones. So we have phones and things like that. They're tied into our network. So like last night, if I was at Scott base and something bad had happened, I would have gotten the page and then I'd have to catch the van back. Yeah, again, it's just wild to think, right? That you're in Antarctica, you could be out having fun and get paged to come back to work, you know, so just like anywhere else, yeah. Yeah, exactly. Well, you can catch the Antarctica Craig Porter episode on the award with the Tom Merritt podcast, fascinating stuff. And you can find that show wherever you get your podcasts. Just a reminder, we've got a Discord and the Discord is a fun place to hang out. Join in the conversation in our Discord, which you can join up by linking to a Patreon account at patreon.com slash DTNS. VPNs, which stands for virtual private networks, have been the go-to solution anytime someone finds themselves using a public or untrusted internet connection or wants to minimize being tracked for whatever reason. VPNs can secure your browsing traffic from prying eyes to a point. But these days, do you really need a VPN? Patrick, you've been looking into this. Are VPNs as necessary as they once used to be? To answer Rob, your question, most folks don't need a VPN as much as they did in the past. And if you do, it's really more about privacy and control than security. And you can actually see that. It was interesting because they started looking around at a bunch of different VPN websites because he always used to be like, one VPN or your credit card and bank will be hacked. And now it's like your IP address and browsing should be hidden from unnecessary surveillance or hey gamers, forget about DDoS attacks and bandwidth throttling, but a VPN. Or in my case, hey, you can watch those curling tournaments in Canada by geolocating. At least as long as our IP addresses aren't red flagged by streaming content providers. And I made that last one up, but actually it's not unusual to have your VPN IP addresses flagged and denied by certain websites, especially streaming websites. Generally speaking, I think VPNs today are extra security belt and suspenders, if you will, for anything you're moving online that isn't encrypted in your browser with HTTPS. Google's Chrome browser started screaming the non-secure warning back in October 2017 for non-encrypted, non-HTPS websites. And in the years since, the vast majority of websites on the internet have basically gotten their security on. They've embraced secure socket layers, which frankly is pretty secure stuff. And you got to love that lock in the address bar. It means your connection to the server is encrypted, which is way different than, you know, in some of the earlier banking apps, one of the funniest things I ever heard at DEF CON is somebody saying, yes, it's security by lock icon. And somebody was like, you know, hands were starting to go up in the audience. He's like, no, literally some banks claim that your connection is secure because they put a JPEG of a lockup when it was actually open communications. Most of these banks and other software was short-lived, but you know, it's also crazy because people think I'm on a VPN, I'm untrackable. You know, if you're signed into social media, if you're signed to a lot of commercial websites or if you aren't using browser tools that block tracking ads and invisible trackers, which are all over web pages of all ilks and stripes, you're being tracked just in a different way. Browser fingerprinting is fascinating and weird and can totally track your activities across the old web with alarming detail and accuracy. It's actually kind of terrifying. So one, I should admit, I still run a VPN at home because frankly, I don't want to share my browsing average with my ISP. I don't want to deal with my ISP doing weird stuff based on maybe where I'm shopping or something. And of course sometimes I really do want to geolocate myself to Canada so I can watch Canada only curling streams, which occasionally are a thing. Still run a VPN if I'm using the Wi-Fi at an airport or a hotel lobby. I mean, honestly, 90% of the time I use my phone as a hotspot just to avoid public Wi-Fi routers. Now, given I shared office space with the guy that invented the Wi-Fi pineapple, I don't think we'll come as a surprise for anyone. If there's anything I think is shady about a network, I either A, preferable answer, don't connect to it, or B, alternate answer, use a VPN just to try to keep myself from getting into the various situations. Thank you, Gary Kitchen. This might be varying the lead, but I was also pointing out there's been a lot of consolidation or some interesting consolidation in the VPN market. ExpressVPN, PIA, which is private internet access, CyberGhost VPN, Zenmate VPN, they're all owned by CAPE Technologies, which has some strong intelligence, community ties. They also own WebSolence, which is a collection of comparison websites that offer unbiased reviews for various online tools. Now, if you look at the PR people from CAPE, they will be like all of these websites, they're editorials independent, and I will say there's a lot of good detailed reviews there, but ironically, they almost always include several of the CAPE Technologies owned websites, usually in the top three or four preferred VPNs. There's some interesting stuff going on out there, I think for a lot of people, they may not need it as much for other people. It's part of a total security package, not just it's one element, it's not completely hiding, you are securing, you're on the net, people need to be aware of that, especially if they are say, working as for freedom and all sorts of good stuff in countries where they don't like freedom and all sorts of good stuff, just be aware. If you want to learn more about kind of the state of VPNs, I highly recommend Wire Cutters, the best VPN service by David Huerta and E.L. Grower and Mr. Grower, I hope I said your name correctly, or Ms. Grower, I hope I said your name correctly. Really, really good information in there and gets in depth on a lot of what's going on with VPN services and reminding people always that no-log VPN services are only no-long VPN services or should be considered that if they've been verified by a trusted third party. Yeah, I run a VPN most of the time at home. Every so often I get, there's something weird and wonky that happens because of it, so I have to turn it off to do a thing. Most of the time, it kind of runs in the background, I use Mozilla VPN myself because I use some other Mozilla services so it worked out price-wise as a good package for me. But I think, I do think everything that you laid out, Patrick, is like, here's why a VPN is good, but you're not anonymous. It's sort of the, I had somebody ask me, not that long ago, well, don't you just use incognito mode on Chrome when you don't want anyone to know what you're doing? I'm like, not anonymous. Sure, there is, you know. May not leave traces on your computer. Yeah, there are less things being shared willy-nilly, I suppose, but you kind of have to, you have to go forth being like, this is going to help me for this certain thing, this is worth it, but I am not anonymous. I am not invisible.  And I think that, you know, for example, streaming services getting hip to the game when I'm out of market and I want to watch, you know, a sports event and, you know, I pretend I'm in, yeah, like Iceland instead of the US. It's like sometimes it works. Oftentimes it doesn't and, and companies are only going to get smarter about that stuff. That's really the only reason I still use them to try to actually trick, you know, Netflix or whomever into thinking I'm home when I'm trying to watch something from Canada or Mexico or what have you. My wife, however, she works from home and she uses a VPN. Now her VPN is set up through her, you know, through her job, she works in banking and she can do nothing on her computer unless that computer is connected to her VPN. So everything requires that she actually has one of her work IP addresses through that VPN and, you know, for her to do anything. And that's, that's pretty much how her entire organization, which is quite large work, I think this is a completely responsible decision by the bank, you know, does it create any problems or is it usually just work pretty flawlessly? It pretty much just works flawlessly. And like I said, I'm not even sure which one she uses, it's branded through like their system they log in, but when she logs into her computer, just to be able to connect to anything requires the VPN connects. So she doesn't have to do anything, it just does it, she authenticates with it with some type of two factor authentication. And then she's just on the network, but everything is definitely running through that pipe of the VPN. If she were to disconnect, she can still use the computer, she just can't connect to any of her work apps. Oh, Patrick, remember back in the day when we worked at Tech TV and if you were outside the office, you needed VPN access to get into Lotus Notes, which was always a great excuse for me to be like, I can't, I need a VPN. The VPN's not working. If you don't give it to me, I can't work outside the office. Those were the days, all the old nine to five. All right, well, Patrick, thank you so much for the good reminders about what VPN is good for and maybe less good for, depending on what you're doing for a living. And Rob, let's now check out the mail back. We continue to get some great feedback about our visual refresh rate conversation from Tuesday show. Rick writes having a monitor or having a monitor at a higher refresh rate would still allow you to see the most recent frame. For example, imagine you have a walking gate of one meter per step. Now walk over a road bridge with only one plank per meter and nothing in between. And you'll understand the benefit of having more planks or frames for your feet or for your eyes to potentially land on, even if you don't use them all. That's such a good analogy. I definitely would want more planks. Even though if I'm walking one meter at a time, I definitely would want more. It just is going to make me feel better. Indeed, yeah. We got so much good feedback about that conversation. And we love when conversations resonate with folks. If you did miss the show, the idea was that, depending on what kind of human eyes you have, refresh rates might not register the same to all of us. Kind of the way, all sorts of resolution where people needing readers were all different. And so sometimes top of the line stuff matters more to somebody rather than someone else. Thank you again to you, Patrick Norton for being with us today. Let folks know where to keep up with your latest. You know what? I'll go post, since we were mentioning this earlier, I'll go post up on Twitter today, excuse me, X, whatever URL it's at this year. Exeter, I sometimes call it. I'm gonna be at Patrick Norton since apparently I'm a little slow on the self promotion this year. Yeah, well, yeah, join the club. You know, Rob Dunwood is very good at some promotional tips on threads. I will say, Rob, I've really been enjoying that stuff for you. I appreciate that. I spend a fair amount of time on threads. Yeah, I'm really loving it. Yeah. So Patrons, stick around for the extended show, Good Day Internet. We know all AI models have race issues when it comes to image accuracy. We'll talk about Meta's latest or challenge. Yeah, but just a reminder, you can catch our show, DTNS is live Monday through Friday at 4 p.m. Eastern, 200 at UTC. And you can find out more at dailytechnewshow.com slash live. We'll be back tomorrow discussing the end of Google Podcasts. Pour out a little liquor with Teja Custody and Len Peralta joining us. Talk to you then. The DTNS family of podcasts, helping each other understand. Timon Club hopes you have enjoyed this program.


Okay. Where are we left off? We talked the first two lectures about the different types of IP, basically the law, what the law is, the positive law. And I explained that this course will and why it will focus on patent and copyright. Also, we had a good deal of discussion about the historical origins of patent and copyright, how copyright arose from government censorship and patents from monopoly privilege. So today's lecture, I'm going to go over a little bit more about what this history has resulted in, the entire overview of the kind of modern web of treaties and statutes, legislation that defines and governs all of these different IP rights just to give you a good overview of what it's like. Then we're going to basically discuss the main two justifications offered for intellectual property, which is basically the principled case, which is rights-based or the ontological or natural law-based, and the more practical wealth maximization-based, which you could call utilitarian or consequentialist. The adherents are sort of all over the map and they don't really label themselves very clearly. Hello, test, test. Can you hear me? My microphone level is not going up. Okay. And I would like to spend a little time going over. I mean, I find it astonishing how many, I was just picking through the post. I posted in just the last week alone, since the last course, the last seven days on C4SAF. Now, I do post a lot there and I think I put about one-third of those posts here to summarize, to discuss. There's just so much news on a daily basis of trademark, trade secret, patent, especially patent and copyright news, usually completely outrageous cases of abuse and injustice. Okay. So I'm going to go over here a few, though, just to give you a flavor of what's going on. Jock says the death of Acta Song was taken down in a copyright claim today. I did not know that. I'm curious what the, who claimed copyright in, oh my God, yeah, Tech Dirt. That was on Tech Dirt. I might post that later. Thanks for posting that. Mike Masnick is the guy at Tech Dirt and he's a friend and he's actually on the board of my C4SAF. He is so prolific. I can't keep up with the guy. He posts more anti-IP stuff than I can ever hope to. Put this microphone right in front of me to see if that works a little bit better. So here's one here. Lawmakers are pushing for a rogue websites bill. So this is just, I think, last week, some congressman vowed to pass legislation to give the Justice Department new authority to go after foreign and domestic websites that sell pirated music and movies and counterfeit goods. So now we have rogue websites. I did a post called Patent Defendants Aren't Copycats. Who's the real, so who's the real inventor here? All these are live links in the PowerPoint file that you could click on to go to the, you might be able to do it right now, actually, to go to the link. They're all on C4SAF.org, highlighted at the top there. So in this post here, this is actually an older post, which I had never posted on this blog, but I posted somewhere else. This based upon, I think this actually might be a link to a post by Joe Mullen, a pretty good IP reporter. And basically he reported this study that showed that in, say, a typical class of patent infringement lawsuits for the computer and software ones, less than 3% of these lawsuits had even alleged that there was copying and only 1% had proof of copying. What that means is in a patent lawsuit, most people lump copyright and patent together. And it is true that one element of a copyright infringement claim is some kind of access to the original of the copyright holder and some kind of copying of it, reproduction of it, or making a derivative work based upon it. So that is true. So most people that are guilty of copyright infringement have done something based upon the original author's work. Not that there's anything wrong with it, but they have. In patents, it's not the same thing. John is asking a question here. I'm not sure if that's for me. I don't understand the question about me not sitting in a court. Anyway, if you ask a concrete question, I'll be happy to answer it. But I don't follow it what you're asking there or what that relates to. Maybe I missed the conversation. Anyway, let me go ahead on. The point here that's relevant, the point that's relevant is most people say, you know, don't steal my invention, okay?  But the truth is, in most cases, I mean, I don't know the actual numbers. I've done a lot. I've been involved in a lot of patent infringement lawsuits. And every time I've been involved, the defendant or the person accused of patent infringement never did. They weren't even aware of the other company's invention or patent. They were just, you know, making their own products. They have engineers working on designing things to solve different problems to come up with a workable design. And as they do that, they stumble across different ideas and ways of arranging. Later on, usually someone will say, hey, I just read this patent. It looks like we might be doing something kind of close to that. Or they'll just get a letter out of the blue from some patent holder saying, your product that you're selling is infringing my patent. And that's the first time that they've ever heard of this patent. The point is, these are basically independent inventions, but they're being sued because they happen to step on something someone else also independently invented before, which is similar. You do not need to allege copying to show patent infringement. You only need to show that the accused infringer is making, using, selling, or importing a device that basically has all of the elements that are in the claims of this other patent. It's got nothing to do with access. Nothing to do with copying. It's got nothing to do with it. Now, if you could show blatant copying from a patent, you could maybe get enhanced damages by, that would be called willful infringement, willful. But infringement doesn't have to be willful. Anyway, Eric Smith asks, for my job, do I have to send out those letters? Well, I'm a general counsel for a small high tech company. So I do all of their law. I do corporate law, commercial law, employment law, fundraising, SEC type stuff, securities work, all that kind of stuff. M&A, also I handle our patent acquisition, but we do not sue people for patent infringement. That's not the reason we have patents. We acquire patents just to have an arsenal of patents to dissuade people from suing us. We just want freedom to innovate, which is exactly, this is a good segue to, so no, I've never sent out a letter and I wouldn't do it because I think it's immoral and wrong. If I had to do it for my job, I would have a conflict and I just wouldn't be involved with it. Now, I have responded to such letters and I've examined patents of competitors and others when there's a potential concern that we might be infringing or an allegation or something like that. And then what you'll quite often do is you'll do an opinion or hire an outside attorney to do a non-infringement opinion, we call it, or an invalidity opinion.  Hopefully you only pay regular damages because you can show, well, my infringement wasn't willful because I was relying upon the advice of an attorney who told me I wasn't infringing and that was reasonable advice.  Those opinions can cost $20,000, $30,000, more than it takes to get a patent. And if you get sued, of course, that could cost millions to litigate. So the costs are extreme. But speaking of our acquisition of patents, I mean, we only have 40 or something like that. If you look down here at the bottom of page five, slide five, Google's defensive patent acquisition. So this is just in the news this week. Google, you know, they have this comment that they think there's a lot of junk patents out there. They think patents impede innovation in a lot of cases. They're in favor of patent reform. But they said that there's a company in Nortel that's in bankruptcy and they're going to make a bid for that company for Nortel's patent portfolio. And they explicitly explain in their press release why they're doing this. They're doing it just to protect themselves from being sued. They say they're bidding to create a disincentive for others to sue Google so they can continue to innovate. So they just want freedom to operate and innovate. I mean, imagine if there were no patent system, all these companies wouldn't have to waste all these hundreds of millions of dollars changing their product design to get around patents, being afraid to go into a given line to be out of fear of being sued, wasting money on patent lawsuits and insurance and patent attorney fees, put my phone on airplane mode so no one can bug me during this thing. Okay. So that's a good example. And I don't know how much they're going to pay, but they're bidding for a big patent portfolio. I didn't do a search on it.  So I wouldn't be surprised that they pay, you know, tens or hundreds of millions of dollars for this portfolio of patents just so they can keep innovating, just to make people afraid to sue them. The reason that, by the way, the reason that works is let's suppose some company wants to sue Google for infringing one of their patents. Now, if they're a big company with their own products and technology, Google could pour through their own patent portfolio and try to find one that the other company is violating so they could counter sue them. So it's sort of like an uneasy standoff. Sometimes I refer to this as a porcupine defense.  I might have mentioned this last time. What this leads to is either an unofficial or even an explicit agreement between companies not to sue each other, across license, in other words. So, you know, Intel might sue Amazon or a keenly keep track of who's suing who nowadays. Apple might sue Amazon for patent infringement or for trademark infringement right now for the App Store idea name. But anyway, let's say Apple sues Amazon and Amazon countersues Apple and they both reach a settlement where they cross license to each other the use of their own patents. So they just go back to business or they might do this sort of without an official agreement just they just don't sue each other in the first place because they're afraid of a countersuit. What this does is it makes it hard for the little companies to enter this arena. Basically it's like there's all these companies with hundreds and maybe thousands of patents and someone without any patents of their own or without many patents, they're vulnerable to being sued.  You see, so they're defenseless. So basically patents create barriers to entry to smaller companies and independent inventors and people like that. So it basically tends to cause concentration in larger companies.  Well, there actually is a doctrine in US law. It's called latches, L-A-C-H-E-S. And I've never been quite clear on how that works exactly in the case of patents. Latches is sort of like an equitable defense. It's like a stop-all in the time sense. What it means is you waited too long to assert your rights, so now it's unfair. But in the past a lot of people have actually done this on purpose and they've gotten away with it. This guy Jerome Lemelson, this famous political inventor, he had hundreds of patents and he would let them pen for decades in prosecution. Hold on a second.  So what he did, this was before the patent law was reformed in the 90s to prevent what's called submarine patents. Under the current law, as I mentioned before, the term of the patent is 20 years from the date you file it, but the term doesn't start until it issues. So typically it takes about three years for the patent to issue. So you have about, that's called the prosecution phase. When you file it, then the patent attorney prosecutes it with the patent office. He goes back and forth with the PTO until it gets issued, if it does. When it issues, then you have the remainder of that 20-year period that you can enforce it. So if you take 10 years to prosecute it, you only have 10 left. So there's a penalty to you. Plus it's published at 18 months now. It didn't used to be. Patents are now published at 18 months in most cases, which means people are at least aware that these patents are pending at the patent office. But under the old law, the term of the patent was 17 years from the date it issued. And they were secret when they were pending. So this guy Lemelson would keep filing what's called a continuation application. It's like when you get to the end of the prosecution, say two or three years, you just pay another fee and you start over again. But it's all secret. He kept doing that and doing that sometimes for 30, 40 years. He did it on purpose because in the meantime, his ideas were independently invented by others and adopted like in the auto industry. I may be thinking of the wrong guy. I forget if he was the intermittent windshield wiper guy or he had other ideas. But anyway, when he died, he was worth like $500 million from all these patent license fees. So what happens is the patent will just emerge all of a sudden like a submarine. That's why it's called submarine patents in the middle of an established market. And he's got 17 years left to sue. He would just sue people left and right or send out letters and everyone's got to pay because this invention is already built into all the products. Now, back to your question, Jock, about waiting. I think once the patent issues, and if you actually know of a given person who's infringing and you don't do anything about it, after some period of time there may be an argument on their side that they could argue latches, LACHES. But actually, I haven't researched that issue in a while. I started to research it, to be honest, a few years ago because we were wondering at my company about that issue. But we don't intend to sue anyone, so I don't care. I don't really care if that right to sue lapses. I don't think it would be used against you in a countersuit. Now, if you just hauled off and sued someone, you could be in trouble. But if someone sues you and you countersue them, I think they'd have to have a lot of hoodspots to use an equitable doctrine of latches against their victim. But I'm actually not sure about that. Bottom line, there may be some danger in not enforcing your right. Somebody might find this doctrine interesting, LACHES. Okay. Oh, here's another recent one. I'm from Louisiana, and so the New Orleans Saints is a professional American football team in New Orleans. And so they're popular in Louisiana. And there was an interesting story about some guy, he's a descendant of some families, family families of New Orleans, but he now lives in Vermont. So he thought a lawsuit against the Saints and the NFL for using the slur to lease symbol. This is crazy. I don't know if the Saints own the Flur to Lee. They might own their particular drawing of it, but Flur to Lee's are all over the world, France, everywhere. Okay. This next link, I'm on slide six, by the way. The next link, everything is a remix. I just, someone sent me this, it's two videos. And I think it's part of a project. There's more coming. Some filmmaker did a great sort of, we'll call it amateur. It's a really good job showing how the idea of remixing is just all over the place in art. I mean, it's just part of what artists do. They take other others' ideas. Jock says the guy's going to do four videos. Yeah, I think that's right. So the first two are superb. There's another one I've seen before about some kind of beat in jazz. I've blogged about it before. One kind of beat, drum beat or some kind of beat rhythm in jazz has been around for decades and has morphed over time. And also Nina Paley has a good related one. It's called One of Her Minute Means. If you go to question copyright.org, you can find that one. She's done two or three now. And it's about how all art is imitation or something like that. It's a really cool video she did too. Nina Paley. Okay. Next one. Rem, if you remember, Rem is the one who makes the Blackberry phone. And they already were extorted by NTP, this patent troll company, basically. Jock just posted the link to the drum beat. That's true. That's right. That looks like it. Anyway, so Blackberry was already sued for patent infringement by NTP and they ended up having to pay $612 million to settle it. Well, now they're under attack again. So Intellectual Ventures is this big patent acquisition company founded by, I want to say Nathan Nervold. I think he was a former CTO for Microsoft. So what they do is they go around buying up people's patents and then they use them to extort money from people, basically. So I don't know if they extorted money from Rem or if Rem approached them, but it's the same thing. It's a threat one way or the other. But anyway, so Rem made a deal with them to get the right to be covered by 30,000 of their patents. Now, Rem may be doing this defensively. They may be basically getting some kind of right to be protected from some of the huge number of patents IV has acquired to use defensively or to keep people from suing them. I don't know. But it's kind of interesting. Intellectual Ventures made $700 million last year on licensing revenue from licensing all these patents it has. Some of you may have seen this. The band Minute Work had this famous song in the 80s. I come from a land down under. I think that's the name of the song. Yeah, down under. And they were sued for copyright infringement by some company that owns the rights to some little children's giddy cuckaburra sits in the old gum tree. And I actually have heard that as a child or someone hum that to me, some old folk tune or something. And apparently there's one little part of the flute sound or something in the Minute Work song that sounds similar to the cuckaburra song. And so now they lost and they repealed it and they lost their appeal. So they're potentially liable and the individual singers and the company Colin Hay I think is now still a singer for millions of dollars because this was a very popular song in the 80s. So they're now potentially liable for millions of dollars to this for this, which is absurd. Slide seven I'm on now. I posted this one this morning, I believe. I posted two or three times already on this Faberzyme issue. I get emails occasionally from the lawyer named C. Allen Black. He's actually a patent attorney up in somewhere in the Northeast. He's representing these two poor people pro bono. This is an outrageous case. Basically, there's a company, I think it's called Genzyme. They make this drug called Faberzyme, which treats this genetic illness called Fabery disease. And they're the only ones who make it. It's in short supply because there's only one company making it and they just can't make enough. And no one else makes it because, well, no one else has been licensed to by the FDA and Faberzyme or Genzyme has a patent. So no one can make it. And so no one has tried to gear up to make it. No one's applied to the FDA for commission, I guess. And a lot of this drug is being exported to Europe. And so there's not enough for Americans here, something like that. And the point is, are people actually, some might have died already, but this is ruining these people's lives. So the attorney for them has been trying whatever he could to get drugs to these people somehow to get a competitor authorized by the FDA or to get the NIH. That's part of the federal government to issue a compulsory license. The federal government has the authority to do that. You see, the federal government issues these patent monopoly grants. So they have the right to authorize some other company to grant a license. So if the patent holder won't grant a license, the government has the right to do that instead of them. And then they can compensate the company. It's sort of like an eminidomain thing. The federal government threatened to do this, by the way, in the anthrax scare about eight or so years ago in the U.S. when, after the wake of 9-11 and terrorism and all this stuff, there were some anthrax received in some envelopes. And there's this drug called Cipro, which treats it. And it was in short supply or the company that makes it, I can't remember if it's Bayer or someone who ever makes Cipro, was charging like outrageous, I don't know, like $200 a pill or something. I mean, it was crazy. And so Congress or some agency of the federal government threatened to issue a compulsory license if they didn't charge a more reasonable fee. So they kind of backed off and lowered their price, I believe, to keep the federal government from busting their patent monopoly on anthrax drug Cipro.  I've got it here on slide seven. So he, this guy, Alan Black, he's sued, he's applied for a compulsory license, and he keeps losing. And the latest thing he's tried, he went to the NIH and he tried something called a marching request. It's another type of petition, basically begging them to issue a compulsory license. And they denied it. And one reason they gave is that because of the administrative delays of its sister agency, the FDA, making it impossible to make the drug in time. In other words, they say it wouldn't do any good to authorize a competitor to make this drug because the other part of the federal government is slowing things down so much that it wouldn't get out in time anyway. In other words, I guess by the time competitors would gear up, Genzyme may have their production geared up as well. So in the meantime, these guys are screwed. So it's almost like the FDA and the patent office together are causing basically people to suffer. Jock just posted that Faberzyme is being paid $250,000 per patient per year. Not Faberzyme, Genzyme for the Faberzyme drug. So they're making $250,000 a year, which is obscene. Excuse me for just 15 seconds. Okay. So that's some good news. I think it's important to see this stuff every week to have a feel for what's really going on out there. In the last course I gave, or I piece someone asked this question, which I answered because I had not really addressed it in the preceding lecture. And again, it's good to have a foundation and understanding what the law is before we get to arguments about it and policy questions. So they were asking what exactly are trolls? And you might have heard the term of patent trolls. There's even copyright trolls out there now. The intellectual ventures company in a way is a patent troll. A patent troll is someone who, well, they use the metaphor because they can extract the toll for crossing the bridge, right? Basically they can make you pay a fine or a license fee to use your own product. And the reason they're different than other patent holders is they usually don't make the product that's covered by their patent. So I think it's a strange category because they're really not different than other patentees. So for example, if I make laser printers like HP and let's say they sue Brother, another laser printer maker for infringing one of the laser printer patents on HP's laser printers. Well, you know, there's a good chance that Brother has its own arsenal of patents and can counter sue HP. So they might be able to fight back, you know. So neither one's a troll because they both have patents that cover their inventions. But you know, so what? I mean, what if HP, among its huge patent arsenal, has a patent on ink technology and they sue some ink company that has nothing to do with laser printers? Or they sue some other company, maybe I don't know, a lamination company or a car company. You know, that company may not have any laser printer patents that they can counter sue HP with.  So I don't see, it's a weird category. The problem is not that they're a troll. The problem is that people have patents that they can sue people for. So it's sort of a bizarre criticism. Now, the patent law does not require, at least in the U.S., doesn't have what's called a working requirement. In other words, you don't have to make a device that practices your patent to have a patent. You don't even have to ever, ever make one and prove it can work. Now, the law requires you to reduce your idea to practice. You have to reduce it to practice. But they make an exception and they say that if you file a patent application that has a written description of how your idea would work, which the patent application has to have that, you have to have a written description, then that's called a constructive reduction of practice. So in other words, filing a document that I can sit down and in one hour have an idea and type it up on a piece of paper, file it, and I've now made this thing in the eyes of the law constructively. So you never do have to make it. So the point is the law has never required that. So people that complain about patent trolls, it's like complaining that some people get on welfare. Well, if you put a saucer of milk out, a cat's going to come up and drink from it, right? I mean, if you create a patent system that gives someone a legally enforceable right that they can get by following through the certain hoops, jumping through certain hoops, people are going to do it. And to blame them for doing what you set up a legal incentive for makes no sense whatsoever. They're not abusing the system at all. Now, it is true there are junk patents out there. But that's not what patent trolls are accused of. They're patents maybe just as good as anyone else's. A junk patent is a patent that should not have been issued even by the standards of the patent office.  So there's no objective way to know when a patent should be issued or should not be in a lot of cases. But, you know, the problem with the patent system is not that there are bad patents issued. The problem with the patent system is not that people abuse it. The problem is that good patents are issued. And the problem is when people follow the rules and use these legal rights that the government gives them. This is the problem. Now, I would be in favor of, and I've written articles on it, I would be in favor of reforming the law to require a working requirement. If only because that would tend to make it harder to get a patent and it would tend to reduce the number of total patents out there. But that's my only motivation for that. I mean, patent rolls are not a problem, in my opinion. In my last course, someone had asked this question. I will just mention it briefly here. Someone asked a question about photography. Who owns the copyright and the photograph? And it is actually the photographer.   Some stranger owns it and you don't even know who he is.  But theoretically, you don't even have that copyright. So copyright law has lots of weird aspects to it. Okay. Now let's do this. I talked historically about some of the key things in history, the key things in history that led to patent copyright. I want to just summarize for you, go over with you, just so you get a feel for this monstrous, arcane, complicated web of IP-related laws around the world that form the current national and international patent system. So I'll talk about the international aspects and also in the U.S. case primarily and plus the English in terms of the history here. So let's just start historically again. So, for example, 1624 was the Statue of Monopolies of 1623. I see, I can never find the right way to cite this thing. Everyone cites it differently. I think it's called the Statue of Monopolies of 1623 because that's when it was, you know, probably introduced into parliament or something, but it was approved in 1624. So I've seen it both ways. Same thing with the Statute of Ann, 1709, 1710. So one of the original key statutes for patents was 1624 Statute of Monopolies in England. One of the original copyright statutes was 1710 in England, the Statute of Ann. Then actually one of the first modern so-called general patent laws was 1691, South Carolina. Now I'm going to go to slide 11 now. Now let's get to the modern system and use the U.S. as a good exemplar. And actually I think we have one of the oldest in the world of constitutions and IP systems, strangely enough, given that we're U.S. as a relatively young country. Anyway, on photographs, Jock asks, isn't it the subject in France like that photograph that kissed? I'm actually not sure. I would doubt it would be a different result in France. But if you know differently, let me know. Okay. So in the modern U.S., I've mentioned the four main types of IP or patent, copyright, trademark, and trade secrets. So I want to give you a feel for where these laws come from right now, what their source is, what governs them. So in the U.S., the patent and copyright both are authorized by the Constitution. So I don't think they're unconstitutional. Although some people say that they are because there's a clause that says to promote the progress of science and the useful arts, Congress can give authors and inventors these limited monopolies. And what they say is there's no proof that patent and copyright laws do promote the progress of science and useful arts. And actually I agree that they don't promote it, they actually impede it. So they say that it does not fulfill the constitutional purpose, therefore it's unconstitutional. You know, I'd be happy if the court would strike it down on that ground, but I don't think that's a good argument. I think that that language is what's called merely precatory. It's just explaining why they're giving Congress this power, but the power is actually not limited by that purpose. There's a similar argument in the Second Amendment for gun rights, you know, to provide for national, whatever it says, the freedom to bear arms shall not be infringed. And, you know, we gun rights advocates say that that's an individual right to bear arms, and the clause before it is not a limiting clause, it's just explaining one reason that that power is in there, or that right is in there in this case. Anyway, patent and copyright are authorized by the Constitution, which was ratified in 1789. So soon after the very next year, there was a Patent Act of 1790 and a Copyright Act of 1790. It might have been 1791, I've seen different reports, but it was around that time. Now patents are governed by the Patent Act of 1952, a more modern one, and of course it's been modified since then. It's in Title 35 of the U.S. Code, USC. Copyright, and by the way, it's administered by the U.S. PTO, United States Patent and Trademark Office, which is part of the Department of Commerce. Okay, now I don't really, okay, so let's go on. Copyright is governed by Title 17 of the United States Code, and it's administered by the Copyright Office, which is part of the Library of Congress. So these actually are governed by different parts of the federal government. I'm not sure why or how that happened. Now strangely enough, trademark law, the federal aspect of it, which is the Lanham Act, which was passed in 1946, that's also administered by the U.S. PTO. That's why it's called the PTO, Patent and Trademark Office. Yeah, Gwynn just quoted the Second Amendment, a well-regulated militia being necessary to the security of a free state. The right of the people to keep and bear arms should not be infringed. So gun opponents have argued that that first expression limits the second. In other words, saying the right is only for the purpose of having a militia. So then that's subject to regulation by the states because they control militias. But the court actually, I think strangely and correctly rejected that in that fairly recent, was it Heller? I think the Heller case recognized a right to bear arms is a personal individual right. Right. Anyway, trademark is mostly, well, used to be mostly state law based in state law, common law, and then state statutes. The federal government passed the Lanham Act in 1946. Now I believe it's unconstitutional because there is no authorization of the Constitution for the federal government to regulate trademark. They based it on the Interstate Commerce Clause, which says that the federal government can regulate commerce between the states, which they've taken over the years to use as basically an authorization to do anything they want. Because they just say as long as it has some activity has an effect on Interstate Commerce, the federal government can regulate it. The famous case, by the way, if you want to read a case that will just make you go crazy is Wicked V. Philburn. W-I-C-K-A-R-D versus Philburn. I think it's F-I-L-B-U-R-N. In that case, this is back in the New Deal era under FDR Franklin Roosevelt. The federal government is issuing all these quasi-socialist decrees and they were telling this wheat farmer who grew wheat, if I remember the facts right, he grew wheat on his own farm, not even to sell it, which arguably enters the stream of commerce and affects Interstate Commerce.  But that violated all these controls over wheat growth and he fought it. And the court sided with the federal government. His argument was that this law is unconstitutional because the federal government has no authority to tell me what to do with my own property. There's no enumerated power, but the court said, well, you know, if this guy grows his own wheat and feeds his own pigs, if he's allowed to do that, now notice his word allow, this is how they view us, giving us permission to live, if he's allowed to do that, then he won't buy wheat on the market to feed his pigs. And that will affect how much wheat is purchased on the market. So in an accumulative effect, if everyone did this, then it would affect the Interstate Commerce between the states.  They've used this to justify everything. Not until the 80s, I think, or the 90s, did some Clarence Thomas-related decisions that they start choking back a little bit. I think the USC Lopez case was a school gun, you know, the federal government tried to regulate how close guns could be to a school. And finally, the court said, look, that's got nothing to do with Interstate Commerce. Yeah, mid-90s. And they've done that a few times, but they're hesitant to go too far with that, because if they do go too far, raining in the power of the feds to use this broad interpretation of the Interstate Commerce clause, then, you know, half the federal government would just be unconstitutional. Now, trade secret is mostly state law-based. It still is. But even here, the feds have gotten into the act. They passed this Uniform Trade Secrets Act in 79, which makes it, if I recall, a federal criminal crime in some cases, I think, when Interstate Commerce is involved, to steal a trade secret. Okay. Now, let's look at some modern additions to these four basic rights. 1997, let's look at copyright first. 1997, the no electronic theft act, the net act, was passed. That provides criminal prosecution for copyright infringement up to five years in prison and 250K in fines. Now, 1998, the Sonny Bono Copyright Term Extension Act. You guys might remember Sonny Bono. He was the other half of Sonny and Cher, the singing duo from the 60s, and he was a Republican congressman later, and he went skiing without a helmet and ran into a tree in Colorado, I think, and killed himself, or California, I guess, in the 90s, probably right around this time. Anyway, this act is called the Sonny Bono Act. That's what extended copyright term by 20 years to the current term, life of the author plus 70 years, or for what's called a work for hire, where a corporation is the owner of the copyright and the author of it because it was a work for hire. In that case, it lasts for 120 years from creation, I think, or 95 years from publication, whichever is shorter, and it's almost always shorter, 95 is almost always the number. So basically, it's roughly 100 years term. So 20 years, it used to be 50 and 75. It's also called the Mickey Mouse Protection Act because Disney lobbied for this to keep Mickey Mouse from going into the public domain. And let's see, that was 1998, so it's maybe in five or so years, we'll see Mickey Mouse Protection Act number two, and maybe copyright will be life of the author plus 90 years, or 115 years in the case of work for hire so that Mickey Mouse will be spared being released into the public domain yet again. Now this is a big one that is really bad, the DMCA Digital Millennium Copyright Act. You'll see there's a lot of activity in the 90s. There's a lot going on right now too, by the way. 1998, the DMCA Digital Millennium Copyright Act made it a crime to possess, I believe, or to use or sell at least a piece of technology if it could circumvent DRM, basically. So in my mind, basically every computer is, everyone's a criminal for having a computer, because a computer could be, can be used to crack, you know, to hack and crack and unencrypt, right? It's crazy. The DMCA also added this protection for boat hull design, so now you have this subset of copyright law which protects the way that boat hulls, the way boat hulls look. I mean, I don't know, I guess the boat hull, the boat lobby, the yachting lobby, had a friend in Congress or something. I mean, it's crazy. Now one interesting thing about the DMCA, now this was at the dawn of the internet. I mean, I was practicing patent law back then. I remember when this came out, we were studying exactly what this would do. They put in there this safe harbor for what they call at the time OSPs and ISPs, internet service providers, and they were thinking back then of companies like, oh, I don't know, America Online, and what they did was they provided a safe harbor, which says that we're not going to regard like an ISP like America Online at the time. Now I guess it would be whoever your ISP is. You know, we're not going to regard them as a publisher of the information that goes through their system and is put on websites. Let's say that they're hosted through their systems. So they're not going to be responsible legally for the information that some user puts up there, like if it's a copyright infringement or if it's defamation, for example. We're not going to make the ISP be the publisher of that if they don't actively get involved with it and if they respond to these takedown notices. So at the time, no one knew, none of us understood, no one knew who was going to be liable for copyright infringement, and a lot of ISPs in the beginning used to be sued for all this stuff. So they were afraid of liability. So Congress put that in there.  Some of you may have heard of the DMCA takedown process. This is where it came from, and it's used all the time now. I hate the DMCA and I hate the copyright law, but that part of the DMCA I think has helped freedom on the internet because it's made it kind of clear that a large number of service providers are not responsible for what users put up there. And I actually don't think Congress would have put that in there if they would have understood how it would have been used because this has been used in a lot of creative ways by a lot of companies that maybe weren't quite contemplated because they didn't know how the internet was going to develop. So this safe harbor is important. Trademark law, as I mentioned, 1940 something with the Lanham Act, which federalized a large part of trademark law in the U.S., something called anti-dilution was added in 1995 and revised again a couple years ago. This may, see, up until then, I mean trademark law has problems too, in my opinion, from a libertarian point of view, but the basic standard was kind of like a fraud standard because it was, is someone using a mark in a way that is likely to cause consumer confusion? That was the standard. You know, and that's similar to a fraud standard, which I think is the only good basis of trademark law. It could be based upon fraud, something like it could be based on fraud. So if you're confusing consumer because you have a mark too similar to a competitor's, you know, they could be deceived or defrauded. So consumer confusion. Well, that wasn't good enough for a lot of these guys. So they got Congress to add anti-dilution. So now you can be in trouble even if the mark, even if the way you have a mark on your products is not even likely to cause consumer confusion. That's right. So you got that it's not confusing consumer, but it might dilute the value of the other guy's mark because it tarnishes it or associates it with the wrong ideas. So it's got nothing to do with trademark infringement actually now. So that's terrible. Cause of lots of mischief. I've got lots of horror stories about the Anti-Dilution Act, anti-dilution causes actually being used. I think I misspoke earlier when I talked about that trade secret law. This is the one here that I mentioned on this page, the Economic Espionage Act of 96. See another law in the 90s. This is a federal law that makes the theft of a trade secret, again I think it's one in interstate commerce, but it makes it a federal crime. Now let's talk about the international system. The major international bodies that govern all this is the WTO, the World Trade Organization. So their basic goal is to liberalize international trade, but of course since everyone has been deluded with the idea that western style IP rights are part of a capitalist free trade property right system, this is used to push developing and backward countries, you know, as they might think of them, to adopt our type of IP. And then you have the United Nations Agency that's devoted to IP protection, the World Intellectual Property Organization, or WIPO, which is like the Darth Vader of, you know, or the Death Star of IP. Now as for treaties, there's lots of treaties that govern trademark, patent, and copyright around the world. Some of them require nations to respect other's rights, or rights of citizens in their country, like copyright. Some require minimum standards that all countries that are members to these treaties meet. So one of the earliest one is the Paris Convention in 1883. By the way, you'll notice there's called for the protection, I'm on slide 14 right now by the way, Paris Convention for the Protection of Industrial Property. In the U.S. we call it intellectual property. It's called industrial property quite often in other countries. In any case, this basically allows you to file a patent in one country and then within, I don't know, six months or a year depending on which country, file a second application in another country and claim priority back to that date. So you get the filing date, filing dates matter too when it comes to a battle with someone else or when it comes to what counts as prior art. I mean if I file on day one and someone publishes an article the next day, that's not prior art for me. If I file it on day one, an article published two years ago is prior art. Prior art means what is publicly known and what my patent has to be novel in view of. Is that clear? But since the PCT or Patent Cooperation Treaty in 1970, this provided a more unified procedure and this is what is used mostly nowadays. I use this quite often to file a PCT application for example. I don't think I've ever used the Paris Convention because you only need to use that when there's a member of the Paris Convention that's not a member of the PCT. And there are fewer and fewer of those. China, for example, used to be a member of the first, I think, but not the second. But now they're a member of the PCT as well. Then we have the Byrne Convention, 1886. Also the WIPO Copyright Treaty of 1996. These both set international standards for copyright. Now by the way, so here's an interesting point about it, the Byrne one. So the U.S. is part of the Byrne now. And one thing the Byrne and I think the WIPO Treaty too, one thing they required was that there be no formalities to acquire copyright protection. This is why it's automatic now. It used to not be. In the U.S. to obtain a copyright, I think you had to put a copyright notice on your work. And maybe you had to even actively register it with the copyright office. I can't remember if it was active registration. I think it was active registration was required to have a copyright. Similar to the patent system where you don't get a patent unless you apply for it. But since the, I think of the 80s when we exceeded to Byrne, if I remember my timing right, we changed the copyright law to comply with it. And we got rid of those requirements.   Why don't you just make your work public domain? Well, first of all, I don't copyright anything. No one copyrights anything. People receive a copyright or they have a copyright automatically just by writing, you know, just by publishing an article or writing on paper, the government grants you a copyright. You can't stop it. You can't even get rid of it. There's no way to make it public domain. You can't just put a notice on it saying I hereby make this public domain. That's just, it doesn't, it's not true. It's not public domain. So even if we wanted to modify our copyright law and to say require active registration, which I think we should, we couldn't do it without violating international law. So, so I was talking with Carl Fogle, who's the head of a question copyright or not too long ago. And, you know, we were discussing this how even if we could somehow get a movement in Congress to make the copyright system registration, active registration, which would solve the orphan works problem. There's an orphan works problem now. Well, there's tons of works out there that in the last 50 years and no one knows who the author is or you can't find them or no one knows who the owner is. And you can't give permission to make it so they're just dying or these books are not being republished because of the orphan work problem. If you require active registration, you could go to some registry, you could see who the author was, whether it was a copyrighted or not, and then you would know. Anyway, we actually couldn't do that. In other words, it would be better to make copyright opt in instead of opt out. But as I mentioned to Carl, it's not even opt out because you can opt out of it. I mean, there is no way to get rid of copyright that I'm aware of, no reliable way. Creative Commons licenses can help somewhat, but it still doesn't get rid of the copyright. And I'm not quite sure that they're completely enforceable. The CC0 would be the closest to public domain, but there's doubt about whether that was legally enforceable because of these treaties and because of local laws. Jock asks, what is this about author asserts his moral rights? I'm not sure where you read that from or what you're talking about. I think that word is used a little bit ambiguously or in different ways. Moral rights refers primarily, okay, he said it's on the front matter of books. I don't remember seeing it that much before, but I think it's more of a European thing. I know like in France, for example, there's a moral right, which is the right, it's sort of like an adjunct to copyright. It's the right to be attributed as the author of a work. And if I understand how the law works in countries that have this, I don't think we have the same thing in the U.S. I think the moral right is said to be an inalienable right. I mean, literally they call it inalienable. So you cannot contract out of it. You cannot get rid of it. I seem to recall studying some cases a long time ago where, for example, I think it also has to do with preventing your work from being defaced. So I think there was a case where some artist had a, I want to say he had a refrigerator and he had painted something on the refrigerator and then he left his apartment and someone else moved in. And they were going to throw the refrigerator away and he got an injunction to stop them from doing it. Or there may be cases where like you have a mural on a building and the artist doesn't own the building anymore, but he gets an injunction from the court to stop the current owner from painting over it or demolishing the house because it would deface his work. I think that's a type of moral right, too. So I'm actually not sure if it means anything other than that. So I'm assuming that the authors are doing that. They're saying I have to be attributed as the author that's no matter what, something like that. Gwen asks, am I familiar with some of the open source characters like Ginny everywhere that have a permissive license and then you have a link here? No, I never heard of that. I do know there's a movement among a lot of open source types to have open licenses and things, but a lot of them do non-commercial, which I think is terrible. I mean Nina Paley is an artist and she explains, I mean she does copy left, which I understand why. I don't like copy left because it still imposes a requirement on the user to impose another copy left on any derivative work they make. I tend to prefer Creative Commons attribution only. I figure that's the closest enforceable license to public domain because all you're requiring them to do is put your name on it, which they would do in most cases anyway. I mean attribution is commonly done anyway, so I figure you're not imposing any really onerous requirement on people. I mean I would love to do CC0 on my stuff, but I'm afraid it won't work. And that's to the detriment of the user. If they can't rely on it, then maybe I change my mind and we'll try to sue them someday. They need to be able to count on the license. Oh, Gwynn says it's all rights reversed. Yeah, I think that's one of these cutesy, artsy things that's supposed to mean something like copy left, which is, I don't know if it's legally enforceable because it's not really that carefully defined. Maybe it is somewhere. It might be interpreted to be like copy left or CCBY Creative Commons by its attribution only. It's 9 p.m. my time here. Why don't we do this? Let's take a five minute break. It's 902. We'll resume at 907 and maybe I'll talk for 15 more minutes and then I'll stop and see if there's any more questions. Someone asks, I thought I saw another question. Oh, Donald says, are there countries that are resisting or partially resisting current patent and copyright agreements? Well, I mean, I think there are some countries that have never signed up, but I mean, I think they're regarded as not very important countries. You know, what happens is the Western countries are always twisting the arms of the holdouts that are significant like Russia and, I don't know, China and India. They finally all come along, but now they're working on getting them to actually comply with the laws. I mean, you know, outside of the U.S., my general impression is outside of maybe Canada and the U.S., well, I was going to say piracy is widespread. IP is respected here. And I think that probably used to be the case until the Internet and Pirate Bay type of stuff. So now that's not even the case. But you're not going to find it, you know, a bazaar, some guy on the street selling bootleg CDs over here. I mean, I've never seen that.  And generally the poorer and the more developing the country is, the more you see that, you know, Italy and Turkey and China, I'm sure. So piracy is more rampant over there. So I think right now they're just trying to get China and Russia, primarily China and India, to really comply and to enforce these laws and have a better court system for lawsuits to actually stop piracy, not just have it on the books, but enforce the law. Oh, Jock is putting a link up to some report on international piracy. This is one that came up just the other day. It's something like huge report by some group, I forgot the group. Yeah, there was actually an interchange between him and Mike Maznik on TechDirt, between the guy that was behind that study. He was kind of fussing at them for charging like, I don't know, $8 to get the report if you're from the U.S. or some rich country, but it was free in other countries and had some kind of copyright warning on there. And he kind of fussed at them. The guy said, well, it was tongue-in-cheek and we're not really going to enforce it. If you want a bootlegged, it's okay with us. But I mean, yeah, you can find it if you look. I mean, it was kind of weird, the interchange. Any case, let's continue on here. I'm not going to finish tonight. Everything I planned, but that's okay. You can spill over the next time, which is fine. But I would like to finish the overview of the legal system. On treaties, there's a Madrid system, too. The Madrid system is based in Madrid, Spain, just like the European Patent Office is in Munich. I mean, and the United Nations is in New York. I mean, all these countries lobby for these huge new bureaucracies to be centered there, so create jobs and business and spending, et cetera. So this permits international registration of trademarks. It's administered by WIPO. Now, there's also a treaty called GATT, the General Agreement on Terrorism Trade, and a 1994 so-called Uruguay Round covers IP. Finally, the trips, the agreement on trade-related aspects of intellectual property rights are called trips. This is an international agreement administered by the WTO. I told you earlier, it's two of the big agencies of the WIPO and the WTO, and this sets men on the standards. Okay. There is also this ACTA. Well, I think I have it on the next slide. Let's go to the next slide. Now, what about laws coming down the pike? Pending laws. So we had this ACTA, Anti-Counterfeiting Trade Agreement. I actually haven't followed it in the last month or two, so I'm not sure where it is right now, but I assume it's still pending. So this is a proposed international agreement that would provide copyright and patent standards, and maybe even trademark. I've read through it, and it's a little bit unclear. The problem is it would have a lot of the provisions that are in the DMCA, so I'm really worried about this one. It probably won't affect America too much, but it will make other countries have more American-style law. Now, what was sneaky about this is, let me explain how international negotiations work on these types of things. Usually, when you have the things like these previous treaties we've talked about, they're negotiated between a large number of countries as a treaty, okay? And traditionally, those negotiations are done pretty much publicly. So everyone's aware of what's going on, and there's just like when a law is pending in Congress, some people oppose it, some can give their input, and they can try to stop it if they don't like it, whatever. Well, trade agreements used there between two countries sometimes are multilateral, but trade agreements are typically negotiated in secret between countries, okay? But when you do an intellectual property treaty, it's usually done as a treaty because that's what it is. Trade agreements is about how we're going to impose tariffs on each other, like the NAFTA or bilateral trade agreements between countries, or multilateral trade agreements. Trade agreements affect how countries trade with each other. So they wanted to impose these more rigorous standards, patent and copyright standards on a worldwide basis, but they didn't want to impose, they didn't want to negotiate it in public because they knew that it would be controversial. So instead of doing it the normal way, they just try to sneak it in as a trade agreement. That's what they call it, the Inter-Canadian Trade Agreement. And this law professor in Canada, Michael Geist, G-E-I-S-T, someone leaked to him the draft of it, and it got leaked. And so now it kind of, from what last I read, some of the offensive provisions have been taken from it. So if it does get passed, it will have been partially defanged, which is good, although it's still probably going to be bad. Another one that's coming, which I'm really worried about, is the COICA, Combating Online Infringement and Counterfeits Act. This would allow domain names accused of piracy to be blocked. So what we did is what's called in-rem, like that's an action against a piece of property in-rem instead of in-personum, instead of against the person. So they wouldn't even have to know who owns it or who the person running it is. They just will go in and seize that one. And then there's also talk about adding IP for fashion and database rights. Some chefs want copyright for food recipes. Some bartenders want copyright for their drink mixes.  It's terrible. I don't know if I have it on this page. Okay, this is the end of this part. So let me just stop for a second. I don't have it on the slides, but I did a post on it. I think a week or two ago, Mises blog and on C4SIF, you might want to look it up. It's a post about pending patent reform. Patent reform has been pending for, I don't know, 10 years, and it never passes. It's never a good idea, in my opinion, because they never do anything radical. They just change a few things. But it looks like the timing is right. And there was a bill, Senate 32 or something? Anyway, it's on my site. There's a bill pending and it passed the Senate 95 to 5. And sadly, Rand Paul voted for it. Maybe they don't understand. So most of the changes are neutral, some are negative, none are horribly negative that I recall. But it's just moving deck chairs on the Titanic. It's not really... The main significant substantive change is they would change our American system from what's called a first to invent to first to file. My understanding is most countries in the world have a first to file system. That is, if two people have a similar invention and they both file a patent application for it, the one who filed first will win the battle and he'll get the patent and the other guy will not. In the U.S., we've always had a first to invent system where if two guys file for patents and then it turns out they're very similar, then they have an actually called an interference proceeding, interference proceeding, which is sort of an administrative lawsuit before the PTO or some court. Anyway, they will decide who was the first one to conceive of the idea. I mean, it's an arcane doctrine. In most cases, it wouldn't make a difference. Anyway, they want to change it. I don't know why they want to change it. I think they think it has a greater legal certainty or something, or it's more like what other countries do. Of course, a lot of people are up in arms about it, but honestly, I don't think it makes a difference. It only makes a difference to patent lawyers because it makes them nervous that now they might have a greater chance of malpractice liability because under the current law, it doesn't matter if I file the patent a month late because it matters a little bit, but it doesn't matter too much because I could still win. I could beat someone in an interference proceeding if I could just show my client invented it first, and that's not going to change basically when I file it. But if they change the first to file, if I'm a week late and someone else filed a week, two days before me, then my one-week delay could cause my client his patent rights, and so I might get sued for malpractice.  They don't want to learn the new law. I mean, law is changing all the time. I really think none of it matters. So I'm against it because, well, first of all, anything Orrin, Hatch, and Leahy are for, they're the horrible IP whores of the Senate. Horrible. Horrible. They're always bad on IP. So anything they're in favor, I'm against it. Anyway, I have a little summary on the C4SIF blog about that patent form law. I think it's called the America Invent Act.  So that's kind of an overview of the legal landscape that we're dealing with here. Let me just, I won't go on to, let's see, I'm going to slide 17, 18. I will stop at slide 19. I won't go there. I'll say that for next time. But let me just quickly mention all the monopoly thing. I just want to make clear, I think I mentioned this already. The reason, Senate 23, I had it wrong, it's not 32, it's 23. First of all, some IP proponents get upset if you call patent incorporated monopolies. Well, I mean, of course they are monopolies. They might not give you monopoly power in every case. That would count as monopoly power under the antitrust law. But there are little monopolies, privileges. I mean, they were called the statute of monopolies originally. This was never originally called intellectual property. And it wasn't regarded as intellectual property. It was regarded as a policy tool by the state to reach a certain, you know, desire to encourage innovation or, you know, whatever. It was called property later on when people started attacking it. So they're saying, oh, no, this is a property right. So they were trying to lump it in with other property rights that people respected.  He said that those who started using the word property in connection with inventions had a very definite purpose in mind. They wanted to substitute a word with a respectable connotation or property for a word that had an unpleasant ring privilege or monopoly as well. Let me go to slide 18 now. Anyway, that's just more of the same from Maklop. So I could go on further. I'll tell you what. I will pause here and see if anyone has any questions. I'd be happy to answer questions for the remainder of the time. And if there are no questions, I could cover another slide or two. Any questions? Any comments? Anyone want to discuss anything? Jock's reading Bolger and Levine. It's a great book. I mean, the pharmaceutical chapter is really good because it just has tons of great empirical analysis of the traditional arguments for pharmaceutical patents. Now, I just, Bolger and Levine, by the way, they're great. The book is wonderful. But, you know, they're not actually, they've become more libertarian and even more anti-AP since this book has been out. I've been blogging on his blog against monopoly.org on Levine's blog. And, but there's a part in there where they say something like they would prefer, you know, instead of patent, they would prefer the government to subsidize, you know, federal research or something like that.  Jock says, I don't know how the world still functions. I don't, you mean with all these laws, I think it gums up the works. I've done estimates. I think, I think that, you know, the patent system alone in the U.S. alone has got a cost at least $40-50 billion of just pure damage, pure dead weight. I think it's really more than that. This whole IP mentality affects everything. In fact, if you think about it, I know these guys, some libertarians like Alex Tabarak and also Bernie Sanders, who's a socialist senator for Vermont, I think. And Joseph Stiglitz, a Nobel Prize winner, and I think James Madison, way back in 1789, they proposed a system where you take tax dollars, put it into a big pot, you appoint a panel of government and industry experts, and they pick winners, the most innovative designs of the year, and they grant, they give them rewards to incentivize innovation. Tabarak and others have pushed for a $30-80 billion pot of money just for medical innovation. And now, to their credit, they want to replace the patent system, and I think this might be an improvement. It might be a more honest improvement. But my point here is that they want to have $80 billion of tax dollars, $80 billion of tax money every year go to just medical innovators. Now, if you expand that to all patents, I don't know what would it have to be, $500 billion a year. So that would be the surface cost of the system. Now, presumably, you'd get some innovation out of it. What's it worth? Is it worth a trillion? Is it worth $200 million? I don't know. But that's some idea of the cost of the system. To my mind, that's a proxy for the cost of the patent system, and I think it's clearly enough in the tens or hundreds of billions of dollars every year. Matt says, I was thinking after its expiration date, an item that was considered property is property no longer. Well, this is why I think it's actually not correct to call these property. The originators of the system, the founding fathers, did not think of it as property. It was just a policy tool. Even John Locke, who was somewhat in favor of this idea, he didn't regard it as property. Yeah, of course, it's not a natural right. It's not natural property if it expires. I mean, that's not what natural rights do. To the contrary, natural rights tend to be inalienable, right? Carl says, incenting innovation is like the scientific grants for pure research. I agree. We actually already have the system in place in a way. We have federal intervention and research, and I would encourage anyone interested in that. Look up the work of Terrence Kealy, K-E-A-L-E-Y. In fact, he's on the advisory panel of my C4S-I-F, so just look on C4S-I-F.org. And yeah, he's got a book called Sex, Science, and Profit. It's wonderful. He's got a great chapter. He spoke at the Hoppe Property and Freedom Society last year right after I did. He spoke on patents, and he spoke on government intervention and research, and it was a perfectly complementary talk. It was great. And yeah, he shows how they totally perverted and distorted. Danny says, Danny Gagney. By the way, Danny, where do you just curious? I used to know a guy named Paul Gagney. He was a patent lawyer. Well, actually he wasn't a patent lawyer. He was a trademark lawyer in Philadelphia, Paul Gagney. I don't know if you were related to him or know him. Anyway, okay. Is the anti-dilution clause in trademark law the reason so many films, videos, and photographs were out the logos of other companies, so they don't be smirked the reputation of the company? You know what? I actually do not know. I've wondered that myself. I'm not really an entertainment lawyer, so I haven't really gotten into the nitty gritty of that. I've had theories about why they do it, but I'm actually not sure. The theory I was thinking was these companies wouldn't pay for product placement, so basically they go to all these companies, they say, we'll place your product in our movie, but you've got to pay us $500,000 or whatever, and if you don't do it, we're going to blur your logo out. It will not show. That's our policy. So are you laughing at me, baby, or the book? Okay, so I think that's probably why they do it. I don't think that, so here's the way trademark works. The dilution thing would have more to do with a similar mark, okay, that is too close, or if you use the mark in association with something that tarnishes it, I don't think it's any dilution, and I don't think it's a trademark violation either. It's like, for example, in the U.S. anyway, the U.S. law is a little bit different. My understanding is in most European countries, it's a violation of trademark right for a competitor to show his competitor's trademark, whereas in the U.S., so-called comparison ads are perfectly permissible because, so let's say you could have a Coca-Cola ad could say, we did a taste test between Pepsi and Coke, and the results show that people prefer Coca-Cola to Pepsi-Cola, and they could even have a, you know, show the Pepsi can, because they're not pretending that they are Pepsi, they're not confusingly one about the source of goods. They do that, they sometimes say brand X, but they don't have to in the U.S., but I believe they have to in Europe. Also, it's a patent and copyright are different than trademark, trademark, for example, it is not a violation of trademark to use someone's trademark in a truthful way. So for example, take the game trivial pursuit, okay? I think this is a good example. There's a trademark on trivial pursuit, I'm sure. There's probably a little R by it. By the way, you'll see TM and R in parentheses or in a circle. TM means you're claiming trademark in it, which you don't have to do to claim trademark, but it helps to put people on notice. If you file an application to register it as a federal trademark, then it's finally issued, which takes, I don't know, six months, then it's registered, so you put the R. It means registered trademark. If it's a service mark, you might put SM instead of TM. It means it's a service mark, but it's the same idea. Anyway, I'll wrap up in two minutes here. I do want to end close to one time because I know it's late for some people. But let me finish my comment, which was if I made a set of cards with my own questions that could work with trivial pursuit, I can sell them and I could put on the box, here's a set of cards that are compatible with trivial pursuit. As long as I don't, like, use their sort of design and try to fool people into thinking that I am authorized by that maker. I mean, I might put my company's name on there and say, you know, can sell enterprises, here's a set of improved trivial pursuit cards. So you can mention a trademark and you're telling the truth. And if it's, you know, in such a case. Any more, when you posted a link to Greekings, let me see what that, I don't know what Greeking is. Is this the brand X idea? Let's see what this is here. Oh, I don't know if that is. Obscuring portions of the, okay, blurring out things, blurring of logos. Oh, one more thing. They also, you'll notice in movies and TV shows, they blur out, well, they use fake phone numbers, like it's always 555 or, you know, if they show on a 60 minutes or a new show, if they show someone's a court document or something with names or quite often blur the names. I think that's just out of general respect for children or for people's privacy. You don't want people with social security numbers giving out there or things like that or their address or their phone number, and they choose fake phone numbers because they don't want to accidentally choose someone's phone number and have that person be harassed and maybe sue the company and, you know, whatever, be pestered. So I think they do those for other reasons, but I think they blur the logos out just so they don't advertise for someone who's not paying for it. I mean, that's my guess. But I don't know if you need permission to show, like if you wanted to show the logo, I don't know if you need permission. Now, copyright is a different story. There are some outrageous cases where you'll take a photograph and someone is standing, you know, of your friend and they're standing in front of a building that or an architectural work or a sculpture or even a painting and then the owner of that artwork or that building even will say that you can't publish this photograph without permission because, you know, this big building in the middle of the square here, the federal building or whatever, is copyrighted. So copyright can cause problems with documentaries and with photographs and things like that, but trademark I'm actually not sure about, sorry. Well, why don't we end here? Unless anyone has any more questions, I'd be happy to ask a few more, but I know that 90 Minutes is pushing it for some people, especially the listeners in their cars. Any more final short questions? Otherwise, we can pick it up next Tuesday. Okay, good. Well, good night, everybody. Jock, congrats on staying up late again. Impressive. Enjoy it guys and enjoy the questions and I will see you next Tuesday. Feel free to email questions or post them on the forum in the meantime.