Tag: IP

Someone Gets It

Only a few years ago, it would have been unthinkable for someone at a major political publication, even a liberal one like The Nation, to suggest that IP protections need to be relaxed for the good of society, and now we are seeing this.

IP law is literally for the public interest, in the US at least, as is explicitly stated in Article 1, Section 8 of the US Constitution, “To promote the progress of science and useful arts.”

IP is not property, it is a way to benefit society, not a way to allow rent-seeking to dominate our society:

The explosion of inequality over the past four decades is appropriately a major focus of the political agenda for progressives. Unfortunately, policy prescriptions usually turn to various taxes directed at the wealthy and very wealthy. While making our tax structure more progressive is important, most of the increase in inequality comes from greater inequality in before-tax income, not from reductions in taxes paid by the rich. And, if we’re serious about reversing that trend, it is easier, as a practical matter, to keep people from getting ridiculously rich in the first place than to tax the money after they have it.

While the Reagan, George W. Bush, and Trump tax cuts all gave more money to the rich, policy changes in other areas, especially intellectual property have done far more to redistribute income upward. In the past four decades, a wide array of changes—under both Democratic and Republican presidents—made patent and copyright protection both longer and stronger.

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The effect of these changes was to transfer money from the bulk of the population to the relatively small group of people in a position to benefit from them, either because of their skills in software, biotechnology, and other areas, or because of their ownership of stock in companies that benefit from these rules.

The upward redistribution of wealth arising from intellectual property (IP) is typically disguised in public debates as being the result of “technology.” But blaming technology attributes it to an impersonal force. When we point out that it is due to intellectual property, we make it clear that inequality is a policy choice.

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By my calculations, the amount of money transferred from the rest of us to those in a position to benefit from IP comes to more than $1 trillion annually. This transfer comes in the form of higher prices for prescription drugs, medical equipment, software, and many other products. This amount is almost half the size of all before-tax corporate profits, and roughly one-third larger than the current military budget. In other words, it is real money.

Intellectual property does serve an important economic purpose in providing an incentive for innovation and creative work. But we can make patent and copyright monopolies shorter and weaker while still supporting innovation and creativity, instead of going the route of longer and stronger, as we have actually done over the past four decades.

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Most of the public money goes to finance basic research, but sometimes the government supports the actual development process, as was the case with Moderna’s coronavirus vaccine. The government paid Moderna $483 million for its research and Phase 1 and 2 trials. It then coughed up another $472 million to cover the cost of Phase 3 trials. Incredibly, the Trump administration still allowed Moderna to have patent monopolies on its vaccine, even though the government had covered the development costs and taken the investment risk. If the vaccine had proven to be ineffective, the government would have borne the cost, while Moderna still would have been paid.

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We need to keep this example in mind as the Biden administration develops its foreign policy agenda, especially its relationship with China. Biden has already complained about China’s stealing “our” intellectual property. This sets the stage for potential conflicts that are not at all in the interest of the vast majority of the American people.

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While there may be cases where the failure to honor intellectual property can cost some middle-income jobs (for example, if China uses technology to which Boeing has patent rights), the impact is likely to be comparatively small. Arguing that we should protect Boeing’s IP on this basis would be like arguing that we should not tax Jeff Bezos because reducing his income could lead him to lay off some well-paid servants. The benefits that the relatively affluent and very wealthy get from IP protections are vastly greater than the higher wages that some workers may get as a result of working for Boeing or another company with large IP claims.

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The rules on intellectual property are a major part of the story of upward redistribution of the past four decades. Contrary to what is typically claimed, they have likely been a major obstacle to technological progress, especially in the areas of health and climate technologies. It would be tragic if the protection of IP was a major cause of a cold war with China. It would be even more tragic if progressives were leading the charge.

The author, Dean Baker, has been saying this for years, and now he is getting a real hearing on this in the court of public opinion.  Huzzah.

What a Surprise


Countries that May Manufacture or Buy Sputnik V

In a world* where Covid-19 ravages the world, and no one can see a way out beyond giving taxpayer funded research to rent-seeking pharmaceutical companies, one nuclear armed nation’s vaccing manages to turn in good numbers without looting by private actors.

By, “One nuclear armed nation,” I do not mean the United States.  The idea of creation and distribution of medications without government subsidies is completely beyond the pale in this country.

I am referring to Russia, where the Sputnik vaccine is not showing effectiveness in excess of 90%, at a lower cost and without the handling issues of the mRNA vaccines being rolled out in the United States.

There is a precedent, the widespread popularity of the AK-47, which occurred because anyone could make it without IP concerns:

President Vladimir Putin’s announcement in August that Russia had cleared the world’s first Covid-19 vaccine for use before it even completed safety trials sparked skepticism worldwide. Now he may reap diplomatic dividends as Russia basks in arguably its biggest scientific breakthrough since the Soviet era.

Countries are lining up for supplies of Sputnik V after peer-reviewed results published in The Lancet medical journal this week showed the Russian vaccine protects against the deadly virus about as well as U.S. and European shots, and far more effectively than Chinese rivals.

At least 20 countries have approved the inoculation for use, including European Union member-state Hungary, while key markets such as Brazil and India are close to authorizing it. Now Russia is setting its sights on the prized EU market as the bloc struggles with its vaccination program amid supply shortages.

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Its decision to name Sputnik V after the world’s first satellite whose 1957 launch gave the Soviet Union a stunning triumph against the U.S. to start the space race only underlined the scale of the significance Moscow attached to the achievement. Results from the late-stage trials of 20,000 participants reviewed in The Lancet showed that the vaccine has a 91.6% success rate.

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Sputnik V uses a platform based on the adenovirus, which causes the common cold, and has been studied in vaccine development for decades, though its effectiveness is yet to be proven. AstroZeneca’s is similar, while drugs developed by Moderna and Pfizer and BioNTech rely on a new technology, which uses genetic instructions in a nucleic acid molecule called mRNA to program a person’s cells to make the viral protein itself, triggering an immune response.

Unlike the Pfizer/BioNTech vaccine, Sputnik V can be stored in a fridge rather than a freezer, making it easier to transport and distribute in poorer and hotter countries. At around $20 for a two-shot vaccination, it’s also cheaper than most Western alternatives. While more expensive than AstraZeneca, the Russian inoculation has shown higher efficacy than the U.K. vaccine.

The take-away here is not that Russia is some sort of biotech super-power, it clearly is not.

The take-away here is, or at least should be, that the US model, taxpayer financed research leading to private profits through additional government subsidies (patents) is not necessarily the best model to develop medical treatments.

*To quote Don LaFontaine.

Bill Gates is now a Mass Murderer

Oxford promised to make their vaccine open source, and then Bill Gates strong-armed them into selling exclusive rights to AstraZeneca, because Bill Gates is philosophically opposed to the free exchange of information.

There will be tens of thousands of people will die of Covid-19, particularly in poor countries, because open source gives him butt-hurt.

Next time you see Bill Gates, ask him why he decided to kill thousands.

More chilling is that the Bill and Melinda Gates foundation is dedicated to promulgating his twisted view of public health on the rest of the world:

In a business driven by profit, vaccines have a problem. They’re not very profitable — at least not without government subsidies. Pharma companies favor expensive medicines that must be taken repeatedly and generate revenue for years or decades. Vaccines are often given only once or twice. In many parts of the world, established vaccines cost a few dollars per dose or less.

Last year only four companies were making vaccines for the U.S. market, down from more than 20 in the 1970s. As recently as Feb. 11, Dr. Anthony Fauci, the government’s top infectious disease expert, complained that no major drug company had committed to “step up” to make a coronavirus vaccine, calling the situation “very difficult and frustrating.”

Oxford University surprised and pleased advocates of overhauling the vaccine business in April by promising to donate the rights to its promising coronavirus vaccine to any drugmaker.

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A few weeks later, Oxford—urged on by the Bill & Melinda Gates Foundation—reversed course. It signed an exclusive vaccine deal with AstraZeneca that gave the pharmaceutical giant sole rights and no guarantee of low prices—with the less-publicized potential for Oxford to eventually make millions from the deal and win plenty of prestige.

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Even as governments shower money on an industry that has not made vaccines a priority in the past, critics say, failure to alter the basic model means drug industry executives and their shareholders will get rich with no assurance that future vaccines will be inexpensively available to all.

“If there were ever an opportunity” to change the economics of vaccine development, “this would have been it,” said Ameet Sarpatwari, an epidemiologist and lawyer at Harvard Medical School who studies drug-pricing regulation. Instead, “it is business as usual, where the manufacturers are getting exclusive rights and we are hoping on the basis of public sentiment that they will price their products responsibly.”

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Oxford backed off from its open-license pledge after the Gates Foundation urged it to find a big-company partner to get its vaccine to market.

“We went to Oxford and said, Hey, you’re doing brilliant work,” Bill Gates told reporters on June 3, a transcript shows. “But … you really need to team up.” The comments were first reported by Bloomberg.

AstraZeneca, one of the U.K.’s two major pharma companies, may have demanded an exclusive license in return for doing a deal, said Ken Shadlen, a professor at the London School of Economics and an authority on pharma patents—a theory supported by comments from CEO Soriot.

“I think IP [intellectual property, or exclusive patents] is a fundamental part of our industry and if you don’t protect IP, then essentially there is no incentive for anybody to innovate,” Soriot told the newspaper The Telegraphin May.

Some see the Gates Foundation, a heavy funder of Gavi, CEPI and many other vaccine projects, as supporting traditional patent rights for pharma companies.

“[Bill] Gates has staked out this outsized role in the vaccine world,” Love said. “He has an ideological belief that the intellectual property system is a wonderful mechanism that is necessary for innovation and prosperity.”

In just the next year, it is clear Bill Gates will ultimately be responsible for more deaths than Osama bin Laden was on 9/11.

Tweet of the Day

William Greenbladt, a photojournalist, who took this photo of the McCloskey’s pointing guns at protestors sent them a $1500 bill because they lifted the photo and used it as a Christmas card. pic.twitter.com/EpdRSp19Hx

— Michael Cali (@cali_photo) November 5, 2020

Not generally a fan of expansive IP protections, but sending an invoice to the S. Louis Ken and Karen for their use of his photograph of them brandishing their weapons epic.

Inmates Running the Asylum

In what might the most extreme example of Stockholm Syndrome ever, USPTO chief Andrei Iancu has declared that patents are in no way slowing the emergence of new Covid-19 treatments.

Less than a week later, major pharma manufacturers were sued for ……… wait for it ……… patent infringement:

A week or so ago, the head of the US Patent and Trademark Office, Andrei Iancu, who has been an extreme patent maximalist over the years, insisted that there was simply no evidence that patents hold back COVID treatments. This is a debate we’ve been having over the past few months. We’ve seen some aggressive actions by patent holders, and the usual crew of patent system supporters claiming, without evidence that no one would create a vaccine without much longer patent terms.

Iancu was questioned about how patents might hold back life-saving innovation and he brushed it off like this was a crazy question:

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Iancu also shot down the idea that patents might be used to limit access to a vaccine:

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But just to highlight how ridiculous Iancu’s statements were, just days later, Pfizer, Regeneron, and BioNTech — all working on COVID treatments (including the antibody cocktail that President Trump took from Regeneron) — were all sued for patent infringement for their COVID treatments.

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And then to make an even stronger point, pharma company Moderna — which had been facing a ton of questions about how its patents might delay COVID-19 treatment — has announced that it will voluntarily agree not to enforce the patents during the pandemic.

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The key point: even if Iancu pretends otherwise, people actually in the space know that patents can and will get in the way of life-saving innovation, rather than acting as an important incentive.

It’s long past the time we recognized how damaging patents are for innovation in many different industries, including pharma, and having a Patent Office boss who simply denies reality is fundamentally unhelpful and anti-innovation.

As I have noted many times, IP law is at its core public interest law.

As it says in the US Constitution, copyright and patent are created to, “To promote the progress of science and useful arts,” not to reward maniacal rent-seeking, which is what it has become.

Today in IP Law Abuse

The posted a video of their new “Truck” driving down the road, but it turned out that there was no propulsion system.

They just let it roll down hill and made it look like it was powered with camera angles:

Nikola has issued copyright-takedown notices targeting critics on YouTube who used clips of the promotional video in which a Nikola prototype truck was seen rolling down a hill.

Nikola last month admitted that the promotional video of a supposedly functional Nikola One electric truck moving along a highway actually consisted of the company’s vehicle rolling downhill. This week, Nikola “forced the removal of several critical videos from YouTube, saying they infringed its copyright by using footage from the company,” including the truck-rolling-downhill video, the Financial Times reported yesterday.

Sam Alexander is one of at least two financial commentators who had videos removed by Google subsidiary YouTube at Nikola’s request. He says that four of his videos were taken down.

“The claim is from when I showed 30 seconds of their Nikola One in Motion footage, which is what they put on Twitter and it’s of their Nikola One rolling down the hill,” Alexander said in a YouTube video he posted Wednesday.

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“Right now my main concern is that Nikola is using copyright strikes to silence their critics,” Alexander told the Financial Times. Another YouTuber named Tom Nash “was required to take down three videos that featured criticism of Nikola,” including one that used footage of the moving truck, and has appealed YouTube’s decision, the Financial Times article said.

Meanwhile, both Nikola and Youtube are pointing fingers at each other, but my money is on Nikola

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A Nikola statement sent to Ars and other media outlets tries to portray YouTube as the party that initiated the video-removal process. “YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us,” a Nikola spokesperson told Ars. “Based on YouTube’s information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis.”

YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that’s available to people in the YouTube Partner Program.

“Nikola has access to our copyright match tool, which does not automatically remove any videos,” YouTube told the FT. “Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice.”

This is why there should be real, and severe, penalties for misuse of the take-down process in law.

This is Batsh%$ Insane

As you may, or may not, be aware, there is a segment of fan-fiction called “The Omegaverse”, which is one part Supernatural fandom, and two (or maybe three) parts bad wolf science.

What you may not be aware of, unless you read the rather incomplete New York Times story, which tended to focus on a genre of literature that features, estrus, involuntary impregnation, involuntary sex, male pregnancy, and a lot of other stuff that makes Furries look like Mike Pence.

I understand why the Times focused on this, it’s salacious, and salacious sells.

It’s also kind of dull, unless it’s your thing, at least to me.

I am a cat person, thank you very much.*

What I find interesting is the use, and in this case abuse, of the DMCA (Digital Millenium Copyright Act) take-down provisions for a clearly unlawful purpose.

Well, that, and one the principals in the dispute committing perjury and lying to her fans, but again that is simply salacious, and does not address the larger issues here.

As many of you (OK, both of you) are are aware, the DMCA contains a safe harbor provision which says that so long as a platform responds promptly in response to a take down notice to material posted by a user, they cannot be held liable, much in the same way that you cannot sue a bookstore for a book that is defamatory, just the author and publisher.

What the process means is that there is very little upside for platforms to investigate whether or not an actual copyright violation occurs.  They will simply take the material down when a DMCA complaint, and if the complaint is in error, or maliciously wrong, it is no skin off of their nose.

What this has resulted in is DMCA take down notices being issued to coverup evidence of anti-union activity, corrupt politicians covering up their behavior, to extort YouTube channels, for profit academic journals moving against professors who posting their own research, and, of course, Dr. Who fan Ood Knitters.

What happened in this case was that the author, whose innovation appears to be bringing heterosexual relationships into the Omgaverse, and her publisher, went after another author for literary features of the genre, rather than any actual plagiarism, and sent out dozens of DMCA take-down notices to attack a rival in the genre.

It’s a classic case of misusing the DMCA for non-IP purposes.

Well, Lindsay Ellis gives a hysterically funny description of what went down here, and why what happened was wrong, and why the DMCA needs to be fixed.

It’s an hour long, but it’s well worth the watch.

*No, not THAT sort of cat person, NOT THAT THERE’S ANYTHING WRONG WITH THAT, at least not from a literary perspective.

Yes

Is the Staggeringly Profitable Business of Scientific Publishing Bad for Science?

This has been another episode of simple answers to simple questions.

The story is, of course, about ferociously corrupt scientific journal publisher Elsevier, which interestingly enough was founded by the ferociously corrupt media baron Robert Maxwell, who is ironically enough the father of Ghislane Maxwell, who is alleged to have some serious ethical issues as well.

The reveal here is that monster that is Elsevier was nurtured by British intelligence.

GNOME Foundation: 1 — Patent Troll: 0

Patent Troll Rothschild Patent Imaging decided to sue the GNOME Foundation claiming that their patents have been violated.

The GNOME Foundation decided to fight back, and lawyered up, large with pro bono counsels, filed a counter-suit, and kicked the troll’s slimy ass.

While the specifics have not been revealed, we do know that the Patent Troll agreed never to sue again, and that GNOME paid them nothing:

Updated The GNOME Foundation has settled a US lawsuit brought against it by Rothschild Patent Imaging, complete with an undertaking by the patent assertion entity that it will not sue GNOME for IP infringment again.

In a so-called “walk away” settlement, Rothschild Patent Imaging (RPI) and the open-source body are discontinuing their legal battle that began in October last year. RPI sued for alleged IP infringement of one of its patents by the GNOME photo-organising tool Shotwell, marking the first time a free software project had been targeted in that way.

In a statement at the time, the GNOME Foundation said RPI “offered to let us settle for a high five-figure amount, for which they would drop the case”, something it said would be “wrong” to do. The open-sourcers thus countersued RPI, aided by lawyers from New York law firm Shearman Sterling who agreed to work on the case for free.

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Not only did GNOME score a settlement with RPI that halted the lawsuit altogether, it also received an undertaking to prevent it being sued again for patent infringement by RPI (with the caveat that the software in question is open source). That settlement covers a bundle of around 100 patents, we are told.

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[GNOME Executive Director Neil] McGovern also told Brock that the open-source community “managed to raise over $150,000 from over 4,000 individual donors” to fight the case, adding: “One of the strengths of the community is how passionately we care about what we do, and how we rally around each other when there’s trouble.”

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Updated to add

In an article comment on this story, McGovern said: “For those asking about payment, I can confirm we paid RPI and Leigh Rothschild a grand total of $0.00 for the settlement.”

The Perverse Incentives of Big Pharma

It turns out that, in addition to remdesivir, Gilead has a drug with is less toxic, probably more effective, and easier to make, but they are refusing to test it because it has less life on its patent.

Once again, we see how rent-seeking through patents is the problem, and not the solution for developing new drugs.

Here is the money quote on all of this to my mind, “The attractive profile of GS-441524 from both manufacturing and clinical perspectives raises this question: Why hasn’t Gilead opted to advance this compound to the clinic? We would be remiss for not mentioning patents, and thus profits. The first patent on GS-441524 was issued in 2009, while the first patent for remdesivir was issued in 2017.

Gilead has a long history of sacrificing the public health to the altar of profits, so this should be no surprise.

As for the potential of GS-441524, there is significant evidence that it is at least as good, if notbetter than, remdesivir:

In the midst of a pandemic like Covid-19, for which there are no FDA-approved drug treatments, hope is important. That’s one reason why remdesivir, an antiviral drug that Gilead Sciences originally made to fight Ebola, has been propelled into the spotlight with the hope that it can stop, or at least curtail, the ravages of SARS-CoV-2, the virus that causes Covid-19.

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As chemists, we are troubled by the challenges to mass producing remdesivir. We aren’t alone. On the day that results from the two trials emerged, Gilead CEO Daniel O’Day praised the chemists behind the drug, saying he is “proud of the team because this is a complicated chemical process. It takes many, many steps.”

But does it really have to be that complicated? O’Day’s admission is interesting given that Gilead has another compound in its pipeline that is easier to make, has been shown to be effective against coronavirus in animal models, and is potentially as effective as remdesivir, if not more so.

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Some background: Remdesivir works by interfering with the cellular machinery that allows viruses to replicate inside a human host. It is a pro-drug, meaning it must be metabolized and undergo a sequence of five bioactivation steps before it becomes GS-441524 triphosphate, the active compound that impedes viral replication.

Remdesivir isn’t Gilead’s only antiviral nucleoside analogue. The company has also developed GS-441524, another pro-drug that, as its name suggests, the body also converts into GS-441524 triphosphate, but in just in three steps. GS-441524 is easier to synthesize than remdesivir, requiring three steps instead of the seven needed for remdesivir.

Researchers initially thought that remdesivir would be activated more quickly than GS-441524 in human cells infected with the SARS and MERS coronaviruses. Yet data from primary human airway epithelial cells — one of the most clinically relevant cell-based models of the human lung — showed no statistically significant difference in potency between the two compounds. These data align with previous reports on the similar effectiveness of remdesivir and GS-441524 in coronavirus-infected cat cells. When GS-441524 was used to treat cats with feline infectious peritonitis, a progressive and usually fatal disease caused by a coronavirus, it displayed remarkable safety and therapeutic efficacy, with 96% of cats recovering after treatment.

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Data in cats and primates have pointed to GS-441524’s safety. In the study using GS-441524 to treat feline coronavirus, the researchers noted its “impressive” safety profile when administered at high doses, and reported that no systemic signs of toxicity were observed over 12 to 30 weeks of treatment. In primates, GS-441524 was found to be present at high concentrations in the blood (1,000-times higher than remdesivir) with no apparent adverse effects.

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When viewed through a different lens, the initial results from the NIAID-sponsored trial are more encouraging than they would seem. The active agent, GS-441524 triphosphate, clearly exerts antiviral activity against SARS-CoV-2 in humans, as supported by the accelerated recovery rates in advanced Covid-19 patients enrolled in the trial. Our analysis of preclinical and clinical trial data strongly suggests that early and direct administration of GS-441524 should be considered as a synthetically simpler and potentially more effective alternative to remdesivir, especially as GS-441524’s remarkable safety would enable higher dosing.

An Elegant Solution

Dean Baker, an economist who not only predicted the housing meltdown, but put his money where his mouth was, and sold his home and moved into rental housing in the early 2000s, has a solution to the “problem” of the Chinese “stealing” US vaccine research.

He suggest that all research be released as free and public information, which would mean that there is nothing to “steal”.

What’s more if all this information were publicly exchanged, we would have a vaccine that much sooner (assuming that a vaccine is possible, but that is another blog post).

The only people who would lose, would be the big pharma guys who want to charge thousands of dollars a dose.

To them, I say, “Go Cheney yourself.”

In the last couple of weeks both the New York Times and National Public Radio have warned that China could steal a vaccine against the coronavirus, or at least steal work in the U.S. done towards developing a vaccine. Both outlets obviously thought their audiences should view this as a serious concern.

As I wrote previously, it is not clear why those of us who don’t either own large amounts of stock in drug companies, or give a damn about Donald Trump’s ego, should be upset about the prospect of China “stealing” a vaccine. Concretely, if China gained knowledge from labs in the United States that allowed it to develop and produce a vaccine more quickly, this would mean that hundreds of millions of people might be protected against a deadly disease more quickly than would otherwise be the case. If China made this vaccine available to people in the developing world, then the numbers could be in the billions.

Sounds pretty scary, right?

It is amazing that neither the reporters writing these stories nor their editors apparently gave much thought to the implications of China “stealing” a vaccine. Or perhaps, even worse, maybe they did. Anyhow, I suspect that most of the audiences of these outlets would not consider it a terrible thing if people in China or other countries could get vaccinated more quickly against the coronavirus.

But the issue of this potential theft is just the beginning of the story. If China can in principle develop a vaccine more quickly if it has access to data from labs in the United States then it must also be the case that researchers in the United States could develop a vaccine more quickly if they had data from labs in China and elsewhere. This raises the question of why we are not researching a vaccine collectively, with researchers all over the world posting their findings as quickly as practical so that teams of researchers everywhere can benefit from them?

There is a bad answer and somewhat less bad answer to this question. The bad answer is that the goal of the researchers is to get a government-granted patent monopoly so that they can charge lots of money for a vaccine and get very rich. The less bad answer is that we rely on grants of patent monopolies to finance research. If companies didn’t have the hope of getting a patent monopoly, they would have no way to recoup the costs they are incurring paying researchers and undertaking the trials necessary to establish the safety and effectiveness of a vaccine.

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However, in a context where the whole world is struggling to deal with a pandemic that is killing hundreds of thousands of people, it might be reasonable to just do the research and worry about the cost-sharing later. It would make sense for governments to fund their own research to the extent practical and require that everything be fully public as soon as possible.

If we went this route, our leading news outlets could put aside their fears that China would steal the vaccine. If they take advantage of U.S. research and rush ahead and develop an effective vaccine before our own researchers, then the whole world will benefit from having a vaccine sooner than would otherwise be the case.

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We have a huge amount of potential gain from going the route of open research and very little to lose. And our leading news outlets would be able to stop worrying about China stealing our vaccine.

Now, is the absolutely worst time to allow big pharma to loot the rest of us though thoroughly undeserved patent rights.

Good News in Copyright

It was a 5-4 decision, with the votes nearly evenly distributed between the liberal and the conservative wings of the court, which shows that IP maximalism is a bipartisan endeavor:

A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. The state claimed to own the copyright for the Official Code of Georgia, Annotated, and sued a nonprofit called Public.Resource.Org for publishing it online. Monday’s ruling is not only a victory for the open-government group, it’s an important precedent that will help secure the right to publish other legally significant public documents.

“Officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties,” wrote Chief Justice John Roberts in an opinion that was joined by four other justices on the nine-member court.

Everyone involved in the case agreed that the text of state statutes could not be copyrighted. But the state of Georgia argued that it could copyright annotations that are distributed with the official code. These annotations provide supplemental information about the law, including summaries of judicial opinions, information about legislative history, and citations to relevant law review articles. The annotations are produced by a division of legal publishing giant LexisNexis under a work-for-hire contract with the state.

The copyright status of the annotated code matters because the state doesn’t publish any other official version. You can get an unofficial version of state law for free from LexisNexis’ website, but LexisNexis’ terms of service explicitly warned users that it might be inaccurate. The company also prohibits users from scraping the site’s content or using it commercially. If you need the official, up-to-date version of Georgia state law, you have to pay LexisNexis hundreds of dollars for a copy of the official version—which includes annotations.

Public.Resource.Org defied Georgia’s rules and published the entire code, including annotations, on its website. The group argued that as an official document of the state legislature, it couldn’t be protected by copyright. The state sued and won at the trial court level. The 11th Circuit Court of Appeals reversed that ruling and sided with the non-profit. In an unorthodox move, the people at PRO urged the Supreme Court to review the case, even though doing so could reverse their appellate win, because they wanted to set a nationwide precedent.

The group’s gamble paid off—but just barely. Five justices bought PRO’s argument that Georgia’s official code was in the public domain. Four justices dissented and would have allowed the Peach State to copyright portions of its official legal code.

IP, both copyright and patent, are a cancer on our economic system, encouraging and extending rent-seeking behaviors (The Sonny Bono Copyright Act*) which interfere with economic efficiency and exacerbates inequality.

When vetting the next SCOTUS nominee, their record on IP needs to be under a microscope.

*It’s literally Mickey Mouse legislation.

Yes

David Sirota asks, “Will Big Pharma Fleece Us On A COVID Treatment That We Helped Fund?

This has been another episode of simple answers to simple questions.

On a more serious notes, extreme rent seeking is arguably the central tenet of the US economy these days.

If Remdesivir proves to be a good treatment for Covid-19, it will be sold for tens, if not hundreds, of times the cost of manufacture, and most of the development of the drug was paid for by the taxpayers.

Today in Boneheaded Rent Seeking

The EU Court of Justice has ruled that rental car companies do not have to pay a license fee for the public performance of music when they rent a car, even though every car made today has a radio, and the drivers could theoretically play music on the radio.

These sort of outrageous claims are the rule, not the exception, because there are no penalties for attempting to promulgate this bullsh%$:

Performance Rights Organizations (PROs), sometimes known as “Collection Societies,” have a long history of demanding licensing for just about every damn thing. That’s why there was just some confusion about whether or not those with musical talents would even be allowed to perform from their balconies while in COVID-19 lockdown. And if you thought that it was crazy that anyone would even worry about things like that, it’s because you haven’t spent years following the crazy demands made by PROs, including demanding a license for a woman in a grocery store singing while stocking the shelves, a public performance license for having the radio on in a horse stable (for the horses), or claiming that your ringtone needs a separate “public performance” license, or saying that hotels that have radios in their rooms should pay a public performance license.

Five years ago, we wrote about another such crazy demand — a PRO in Sweden demanding that rental car companies pay a performance license because their cars had radios, and since “the public” could rent their cards and listen to the radio, that constituted “a communication to the public” that required a separate license. The case has bounced around the courts, and finally up to the Court of Justice for the EU which has now, finally, ruled that merely renting cars does not constitute “communication to the public.”

A reevaluation, and a roll-back of implicit and explicit subsidies related to IP needs to happen sooner, rather than later.

Today in Bullsh%$ IP Lawsuits

AM General just had a lawsuit it filed against Activision thrown out.

The lawsuit claimed that the Call of Duty game violated AM General’s trademark on its Humvee truck:
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A federal judge ruled this week that Activision has a first amendment right to include Humvees in its Call of Duty titles, despite vehicle manufacturer AM General’s claims of trademark infringement and false advertising for the in-game use of the military vehicles.

The ruling stems from a lawsuit first filed by AMG in 2017, which suggested that Call of Duty players were being “deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.” That’s not a completely ridiculous idea, since Activision and other major game manufacturers generally arranged licenses for their in-game guns until 2013.

In his ruling this week, though, District Judge George B. Daniels dismissed AM General’s claim. That decision hinged in part on a 1989 precedent that established that artistic works could make reference to outside trademarks as long as the usage was relevant to the work and did not “explicitly mislead as to the source of the content or work.”

We really need to reign in excessive IP protections.

They do not serve the needs of society.

Not Enough Bullets

Publisher lobbyists and their author lackeys, hoping to capitalize on increased book sales resulting from Covid-19 pandemic driven library shut-downs, has attacked the national emergency library project.

This is yet another case where the rent seeking from IP serves no public good:

Last week, when the Internet Archive announced its “National Emergency Library,” expanding access to more than a million digitized works, the group explained the move as a goodwill gesture in the time of coronavirus.

With so many brick-and-mortar libraries forced to close their doors, in other words, the group was opening up its lending program: Now, instead of its usual policy of just one digital copy per reader for a 14-day period, many frustrated readers could borrow copies of the same book during the same time — and could do so through the end of June or the end of the global pandemic, whichever came sooner.

But there’s one major issue that several media outlets, including NPR, failed to mention in covering the decision: Many writers and publishers say the website, even before the creation of this National Emergency Library, has been sharing full digital copies of their books without their permission.

………

“We’re librarians. We’re not social media gladiators,” Brewster Kahle of the Internet Archive told NPR over the phone Monday. “The best I can tell, [the critics of the system] just think what they see on social media, and they retweet it.”

Kahle said the group uses the same controls limiting access to these works as the publishers themselves, with encrypted files that are meant to disappear from the user’s computer after a brief period. The copies the group lends, Kahle said, are owned by the Internet Archive — either through donations, straight-up purchases or collaborations with brick-and-mortar libraries.

As the cost of publishing and distributing creative works has dropped by over a factor of 100, copyright subsidized industries have invested these profits in lobbying congress to increase those subsidies.

The purpose of IP is public benefit, but the current level of rent seeking provides none.

Rule 1 of Monsanto, Monsanto is Evil

Rule 2 of Monsanto is SEE RULE 1.

After creating a plague of Roundup resistant weeds, Monsanto decided to double down on Dicamba, which had the effect of KNOWINGLY poisoning neighboring farmers’ crops, if they did not pay for Monsanto’s own genetically modified crops:

The US agriculture giant Monsanto and the German chemical giant BASF were aware for years that their plan to introduce a new agricultural seed and chemical system would probably lead to damage on many US farms, internal documents seen by the Guardian show.

Risks were downplayed even while they planned how to profit off farmers who would buy Monsanto’s new seeds just to avoid damage, according to documents unearthed during a recent successful $265m lawsuit brought against both firms by a Missouri farmer.

The documents, some of which date back more than a decade, also reveal how Monsanto opposed some third-party product testing in order to curtail the generation of data that might have worried regulators.

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The new crop system developed by Monsanto and BASF was designed to address the fact that millions of acres of US farmland have become overrun with weeds resistant to Monsanto’s glyphosate-based weedkillers, best known as Roundup. The collaboration between the two companies was built around a different herbicide called dicamba.

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The companies said they would make new dicamba formulations that would stay where they were sprayed and would not volatilize as older versions of dicamba were believed to do. With good training, special nozzles, buffer zones and other “stewardship” practices, the companies assured regulators and farmers that the new system would bring “really good farmer-friendly formulations to the marketplace”.

But in private meetings dating back to 2009, records show agricultural experts warned that the plan to develop a dicamba-tolerant system could have catastrophic consequences. The experts told Monsanto that farmers were likely to spray old volatile versions of dicamba on the new dicamba-tolerant crops and even new versions were still likely to be volatile enough to move away from the special cotton and soybean fields on to crops growing on other farms.

Why did Monsanto do something so evil, beyond the fact that they are one step away from having a white Persian cat?

Because we allow companies to patent crops, and prevent farmers from replanting crops, and so we create an incentive to sabotage people into buying their (very) pricey seed.

This sh%$ is criminogenic, and for the life of me I do not understand how this does not constitute a criminal conspiracy under the RICO statutes.

Today in IP Insanity

In Italy, hospitals could not operate ventilators to treat severely ill coronvirus patients, because a crucial, and very expensive, valve was not available from the manufacturer.

A group of local tech types took a valve, and figured out how to 3D print the valve for a fraction of the cost.

They were promptly threatened with a lawsuit by the manufacturer.

We need to massively reduce the scope of IP:

Update: One of the people who helped 3D-print the valve in Brescia says that they didn’t receive a legal threat from the original manufacturer, Intersurgical, according to a new report in The Verge. Another person who helped make things happen, Massimo Temporelli, who earlier said they received legal threats for alleged patent infringement, is quoted as saying: “The group we asked for the files refused and said it was illegal”. Intersurgical also denies threatening to sue. It states that it could not supply details for the valve because of “medical manufacturing regulations”. Another news item says the official list price was not as high as the original Italian report suggested, but without giving a revised figure. Whatever the details, the episode underlines why the 3D files of these kind of devices should be made available routinely to hospitals. That would allow them print in cases of urgent need, regardless of any claimed patents, so that this kind of situation doesn’t arise at all, and lives are not put at risk. Original story follows:

Techdirt has just written about the extraordinary legal action taken against a company producing Covid-19 tests. Sadly, it’s not the only example of some individuals putting profits before people. Here’s a story from Italy, which is currently seeing more new coronavirus cases and deaths than anywhere else in the world. Last Thursday, a hospital in Brescia, in the north of Italy, needed supplies of special valves in order to use breathing equipment to help keep Covid-19 patients alive in intensive care (original in Italian). The manufacturer was unable to provide them because of the demand for this particular valve. The Metro site explains what happened next:

With the help of the editor of a local newspaper Giornale di Brescia and tech expert Massimo Temporelli, doctors launched a search for a 3D printer — a devise that produces three dimensional objects from computer designs.

Word soon reached Fracassi, a pharmaceutical company boss in possession of the coveted machine. He immediately brought his device to the hospital and, in just a few hours, redesigned and then produced the missing piece.

Actually, it wasn’t quite as simple as that suggests. Business Insider Italia explains that even though the original manufacturer was unable to supply the part, it refused to share the relevant 3D file with Fracassi to help him print the valve. It even went so far as to threaten him for patent infringement if he tried to do so on his own. Since lives were at stake, he went ahead anyway, creating the 3D file from scratch. According to the Metro article, he produced an initial batch of ten, and then 100 more, all for free. Fracassi admits that his 3D-printed versions might not be very durable or re-usable. But when it’s possible to make replacements so cheaply — each 3D-printed part costs just one euro, or roughly a dollar — that isn’t a problem. At least it wouldn’t be, except for that threat of legal action, which is also why Fracassi doesn’t dare share his 3D file with other hospitals, despite their desperate need for these valves.

This sort of IP related bullsh%$ does not, as the Constitution demands, “Promote the progress of science and useful arts.”

It is an anchor dragging down our society.

No Jury in the World Will Convict Them

Yes, this is an actual lawsuit, and the fact that the judge has not thrown this out, and imposed sanctions on the plaintiffs is a miscarriage of justice.

From a more pragmatic perspective, trying to convince a jury to find in favor of the cable companies’ mot egregious rip-offs is just not going to happen. Ever.

Broadcom is suing Netflix for being so successful that people have cut their cable subscriptions and ditched the set-top boxes that make the chip designer a huge profit.

In a lawsuit [PDF] filed late last week in California, the San Jose-based Broadcom – which designs and sells chipsets used in millions of set-top boxes – argued that “Netflix has caused, and continues to cause, substantial and irreparable harm to the Broadcom Entities [that] sell semiconductor chips used in the set top boxes that enable traditional cable television services.

“Upon information and belief, as a direct result of the on-demand streaming services provided by Netflix, the market for traditional cable services that require set top boxes has declined, and continues to decline, thereby substantially reducing Broadcom’s set top box business.”

It’s a ridiculous claim: that because one business changes the market that you can then sue it for the impact of the changes. But there is, of course, an underlying legal case and that is that Broadcom claims Netflix is infringing its patents.

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It’s hard to have sympathy for a company claiming about a loss of business from cable set-tops: the clunky outdated boxes are notoriously overpriced. Cable companies insist that they have to be “rented” by consumers and charge dozens of times their real value. The average American pays $231 a year for their box, resulting in $20bn a year in almost pure profit for the cable industry.

Seriously, if this goes to trial, I expect the jury to beat the Broadcom’s lawyers to death with sticks.