Obama campaign sues third party vendor. Should political campaigns be able to copyright?

Not sure how many of my readers are particularly interested in copyright law as it pertains to political campaigns, but I found this article from the First Amendment Center interesting:

A federal judge in Washington issued a preliminary injunction barring Washington-based from selling merchandise with the “O” logo. But the judge reserved judgment on whether the website should also be barred from selling merchandise with a logo that uses the distinctive “O” as part of the year 2012.

U.S. District Judge Emmet Sullivan said lawyers for the campaign had shown the campaign owns the trademark on the so-called “rising sun” logo, a blue “O” with red and white stripes at the bottom. The campaign has also applied for a trademark on the 2012 logo, but it has not been granted. Sullivan ordered both sides to provide more information.

This strikes me as odd for a couple of reasons, not the least of which is, as the article notes, that other Democratic campaigns have used the same company without incident. But the second reason is: why should a political campaign even be allowed to copyright its goods? Why should a group whose sole purpose is to elect a President of the United States even be allowed to have discrete intellectual property?

Imagine, for example, a White House that decided to file for intellectual property rights for some of the policies the Administration put into place? If the White House and the halls of Congress are (at least ceremonially) the property of our democracy, then surely so are our democratic processes and the tools that go into it?

Commie that I am, I’m not that big of a fan of intellectual property, of course. I’ve made that point clear enough. And commie that I am, I’m very-much in favour of publicly-funded elections. So, maybe this is just the confluence of those two beliefs. But why would an election campaign for office not for sale need intellectual property to sell? Does that not seem contradictory?


Finally? Some Patent Relief?

Readers of this site will know that I’m not a fan of intellectual property “rights” in the first place. But to the extent that we insist on honoring IP, the bill passed today in the Senate (its already been approved by the House) seems like a welcome change to the norm:

Patent reform bill gets Senate approval | Politics and Law – CNET News.

Among the major changes in the legislation is turning the U.S. patent system into a first-to-file patent system as opposed to a first-to-invent system. The U.S. Patent and Trademark Office’s current use of the first-to-invent system awards a patent based on the conception of the invention, not necessarily when it’s filed. The first-to-file system, as the name suggests, awards a patent to the first person who files for it.

The trick with current copyright law is that anything invented anywhere is considered an Intellectual Property in legal terms. This means that, even if you patented an invention today, if someone says they have the same invention and created it earlier, their IP trumps your IP. This is largely what ties copyright courts in knots.

The down side of this is that it *does*create a potential extra burden for small businesses. Instead of being able to claim an IP simply by having a working invention or schematic, businesses will need to file with the patent office in order for their IP to be legally-binding.

On balance, however, it is difficult to see how any inventor could possibly *not* register their patent with the US Patent Office if they’re serious about their inventions. In the meanwhile, I guess its best to keep your invention under wraps till its go time?


Imaginary Property: Only One Kid Can Hold the Star Wars Figure

“Possession,” she sneered, “is nine-tenths of the law!”

She was a mother, though like many in this neighborhood I spent some of my childhood inhabiting, June Cleaver would hardly have recognized her as such. There she stood at the doorstep of her apartment hovel, round and sagging like an overripe, watery grape in her sandals and unsettlingly-revealing house moo-moo. Her Coke bottle glasses slid down her face in the summer humidity. Her hair was a snarled concoction of stringy brown and grey hair, uneven and matted with perspiration. She closed the door on my confused and frustrated face with a huff, “Go on!”

Never fear, gentle readers: I eventually got my Star Wars figure back because, while possession may indeed be nine-tenths of the law as the phrase goes, payback is 100% a bitch. As the phrase goes. But as unpleasant as my first introduction to the rigors of property rights may have been, I bring it up to illustrate an important point: an object can only occupy a single location at a single time, therefore only one person can possess a Star Wars figure. If someone has stolen your property, the thing to do is prove it was yours in the first place, because without that proof, the rest is folly.

But what if you could possess an object while someone else simultaneously held it? If neither copy of the object was degraded in any way – if the monetary and emotional value of said object was in no way diminished by copying – could that fairly be called a sale or theft or.. really, anything other than sharing in its purest form?

That’s the case with information. Especially in our digital age, information can be copied and disseminated across the entire globe in seconds, either literal copies in the case of MP3s or PDF documents, or in the sort of Bush Telegraph mode of people tweeting and commenting and talking among one another. And when knowledge is transferred from one person to another, neither party is hurt and neither party loses anything.

Readers of my Twitter feed have long seen me commenting through gritted teeth about “Imaginary Property,” which is a popular turn of the phrase “Intellectual Property” in some quarters of the Internet. But I’ve never really gotten around to laying out my basic problem with the concept. Here it is in a nutshell: if “possession is nine-tenths of the law,” how does copyright law get enforced with a type of declared property that is not a physical object? One that is simply an easily-copied idea?

The answer is: badly, haphazardly, and with the extreme bias that comes from monied interests hiring expensive lawyers. When James Madison originally penned the Constitutional clauses that govern our modern system of copyright, the primary concern was not the exclusion of information from the public sphere so much as the protection of printed books from literal copying and reselling without the original author’s credit. And in that slow economy, books were the primary vector of human knowledge.

Fast forward to today and the precepts of Intellectual Property are being stretched to their uttermost, with companies like Rochester’s own Kodak hanging their hats not on their own innovations but rather on esoteric copyright lawsuits against competing companies. Microsoft and Google compete for users in the world of wireless handsets, but rather than compete on the basis of the attractive features and usability of each operating system, they instead find themselves embroiled in legal proxy wars over ideas.

Not concrete products, just the idea of a concept that someone copyrighted. Was the idea stolen from one to another? Or did the two ideas simply spring up separately as solutions to the same problems? The answers to these questions would be impossible in many cases to answer objectively. The objective facts of the case are irrelevant, anyway, because it is the ruling of a judge which will determine who gets the millions of dollars in reward. And the real pay-off is one less competing product to contend with.

Thus the poles have flipped. The copyright law that once encouraged content creators to sell their works in the public square now stands between the marketplace and the products that it might have sold. All of this even while the very concept of information as a privately-held, singular object is rapidly vanishing in the flicker of a fiber-optic signal. As it should, because it was always farce.

This is one good reason I support Open Source software. It begins with the premise that knowledge will necessarily be shared, and so avoids what are ultimately unenforceable rules of copyright protection. And those of us who work with Open Source software do not fear for our jobs, simple because we work with free software. That is because, while information is freely available anywhere online, that some people will choose to learn my trade and most will not is more than enough to get paid for our time and efforts. Knowledge is free, but time is finite.

Imagine if, rather than a Star Wars toy, it had been an Open Source project that had been “taken” from me those many years ago. I would still have had “possession” of my software and wouldn’t have been required to confront a sweaty-faced, over-worked mom in a low-rent apartment building. Better yet, I wouldn’t have had to tie up my own time and lots of taxpayer dollars to have a sweaty-faced judge bloviate about Imaginary Property.

I kind of like that idea, don’t you?


Patent Fights Are About Hearts and Minds

As much as I talk about Imaginary Property on the blog and on Twitter, I don’t often get a chance to really lay out the problem with Intellectual Property and copyright quite as nicely as this article does. Discussing the latest round of M$ / Google / Oracle / Samsung arguments over patents, the author gets into the really important bit for everybody else:

Google vs Microsoft Isn’t Just A Battle of Products, But A Battle of Ideas | Epicenter |

Don’t underestimate the reach of these caricatures. This spring, I was playing Angry Birds with a seven-year-old who patiently explained to me why he liked Apple more than Verizon, because Verizon’s Droid phones just stole all its ideas from Apple’s iPhone. (I still haven’t told him that I have a Verizon iPhone now.)

My young friend may have been mixed up on the details, but he was lucid, he was deliberate, and most importantly, he was absolutely convinced. That’s what Google’s fighting here, in public — and that’s why Microsoft and others will be fighting back.

The question of why copyrighting does or does not hurt innovation is a topic which I have yet to address on the blog. I’m thinking I should start doing better with that.