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Some Thoughts on Dharma Decline

Many of these blog entries have concerned my main research in political philosophy, intellectual property and technology. Now for something a little different, I thought I would write up some thoughts on another area of interest: Buddhism. For those who don't know, I've taught courses in Buddhism since I began teaching, having learned a great deal from my undergraduate advisor, Donald Hanks, and Ashok Aklujkar, a now-retired professor of Indian languages, literature and philosophy for whom I served as teaching assistant during my time at UBC. Thanks to their instruction, I developed a solid knowledge of the Indian Buddhist tradition, and I've used what they taught me to deepen and develop that knowledge to improve my teaching and my personal meditation practice.
While I don't want to write a full tutorial on Buddhist thought, I would like to discuss a notion that prevails in some traditions, and that discussion will require one to know a few basic ideas. At its core, Bu…

If Money Equals Speech, Both Must Be Distributed

Given the recent Occupation evictions (and returns!) and the associated reports of police brutality (UC Davis, I'm looking at you), a few thoughts about rights and liberal democracy have been steeping in my mind. There is some symbolic merit in the rights to religious freedom, free speech, a free press, and free associated being collected at the beginning of the Bill of Rights. While I'm no Constitutional scholar, I cannot readily explain the historical reasons behind the composition and ordering of the first ten amendments to the US Constitution. I do recall that the Bill of Rights formed a package of compromises, things that the colonies demanded be added to the Constitution before ratifying it. As that is the case, one could be forgiven for thinking that the Bill of Rights consists of some non-organizational necessary conditions for a liberal democracy. Let me give an example using the First Amendment rights.
The freedom from state religion or “religious tests” is crucial fo…

The Intellectual Property Arms Race

Among the many hot news items is this week is Congress's consideration of the Stop Online Piracy Act, a bill that would give private copyright holders sweeping enforcement powers. The details of the bill can be found in a variety of places (Wikipedia, as usual, has an excellent summary: http://en.wikipedia.org/wiki/Stop_Online_Piracy_Act ). Since I've written a dissertation around the argument for copyright reform in exactly the opposite direction of current trends in Intellectual Property law, I thought long and hard about exactly how to weigh in on this issue. Before providing my own opinion, let's be clear about some of the more problematic provisions of the bill.
For one, SOPA would make websites responsible for enforcing copyright infringements on user-uploaded content. In effect, social websites would then be liable for failure to enforce, so those sites that have become the backbone of the internet for many people will either have to institute draconian content-regul…

New Orleans: Occupied

Today, I spent my lunch hour at the local Occupy New Orleans encampment. The movement has established their tent city, perhaps more like a village, at Duncan Plaza, across the street from city hall. As a political philosopher and a sympathizer, I wanted to finally make way out to the front line as it has manifested here, to talk to some folks, find out what has motivated them, what they are doing, and talk about what challenges they are facing.
I was only there for an hour, but I walked through the entire camp. Being New Orleans, a city that we locals know for its apathy and cynicism, I didn't find myself surprised at the low turnout. In addition to the ones directly involved in the action, many homeless have camped out there since the NOPD cleared the homeless encampment from their camp under the overpass at Oretha Castle Haley and Calliope. I spoke to a few groups of people, some making signs, some picking up stakes to join the occupation on Wall Street, and some digging in and…

Patent Part 1: The Basics

To wrap up this tutorial series on intellectual property, I will need to spend a few installments talking about patents. In short, patents are to inventions what copyright is to creative media. Nevertheless, patent has its own hornet's nest of issues, and ethical concerns, to discuss. This installment will cover the basics, providing a general look at patent law. The following installments will detail some of the thornier problems with biological patents, pharmaceutical patents, software patents, design patents, and business method patents.
Like copyright, a patent is a limited monopoly granted to an inventor for the purposes of controlling and securing a living from her intellectual labor. The invention must be something new, non-obvious, and useful, and the monopoly lasts twenty years. The holder of the patent can control the duplication, distribution, or implementation of the invention, so she can sell licenses to firms, granting access to the invention in exchange for some mo…

Trade Secrets

Now, we come to an even more obscure for of intellectual property: trade secrets. Trade secrets can be any innovation, a process or technique of manufacture, that a firm uses in its business. The most famous example is likely the formula for Coca-Cola. To be a trade secret, a firm must simply treat it as secret, limiting the number of people who know, requiring those who must be privy to the secret to sign non-disclosure or non-compete agreements. Trade secrets require no registration, and trade secret protection never expires. On the other hand, trade secrets also receive no substantial protection from the government, except in cases of corporate espionage. If a trade secret is obtained through illegal means, the victim firm can seek compensation and can get injunctions against the offender using the stolen information. Nevertheless, a firm has no such recourse in cases of reverse engineering.
Some scholars have claimed that trade secrets serve as a counterexample to Utilitarian or in…

The Paradox of Trademark

Much of this tutorial has concerned intellectual property issues as they relate to copyright. Copyright is, in many ways, the form of intellectual property that we discuss the most. After all, we live in a very connected media culture, so creative media is really part of our environment. Nevertheless, no discussion of intellectual property, and certainly no tutorial series on intellectual property, would be complete without at least some detailed discussion of the other major forms, namely patent, trademark, and trade secret. As such, I'll finish this series with at least one installment on each of these, beginning with trademark.
Again, we discuss copyright perhaps more often than any other form of intellectual property, but trademark may well saturate our environment even more thoroughly than copyright. We just don't seem to discuss it quite as often, and in some ways trademark isn't as fascinating as debates about file-sharing, fair use, or derivative works. Nevertheless…

Justifications for Intellectual Property Part 3: Self-Expression Justifications

The third dominant justifying theory for intellectual property rights is often called the Self-Expression justification. Most scholars attribute it to Hegel, but it ultimately has roots in Kant. While few philosophers even addressed intellectual property, Immanuel Kant discusses the sale of pirated books in Metaphysics of Morals. Kant argues that reprinting a book after first publication is a violation of the author's right to entrust his communication to a particular publisher. Viewing books as importantly communicative, not material, in nature, Kant claims that a publisher is essentially a spokesperson, someone designated by an author to communicate his ideas to others. Reprinters interrupt this process by taking it on themselves to communicate the author's idea, without his consent. Reprinting is then akin to removing the author's control over the communication of his ideas. While Kant's argument does not get you an entire system of intellectual property, he does dr…

Justifications for Intellectual Property Part 2: Labor-Desert Theories

I know it's been a little while, but I want to finish this tutorial series rather than abandoning it and moving on to other topics. Of course, I would have liked to have finished it by now, but various research and teaching-related obstacles have kept me nose down in the Real rather than preparing content to be released into the internet. Nevertheless, I'm returning to routine, so I'm going to release this installment today, rather than wait for my usual MWF release schedule.
At any rate, let's pick up where we left off and talk about justifications for intellectual property rights. While the utilitarian justification discussed in the last post enjoys the status of having been enshrined in law, scholars and jurists have often brought in other property-justifying theories. Perhaps the most popular of these are Labor-Desert justifications, best exemplified by John Locke (the philosopher, not the character on Lost).
In his Second Treatise on Civil Government, Locke const…

Absence

I have to extend apologies for my absence. I've returned to teaching, so I have been inundated with work. Rest assured that i will complete the tutorial series soon, and then move on to other topics. Hang in there for new content in just another day or so.

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial.
There are three main ways of justifying intellectual property rights: the Utilitarian theory, the Lab…

Fair Use Part 3: Parody and Scholarship

I alluded to this problem in the initial fair use post, but it deserves a bit more attention. While Weird Al has indeed made a fortune on parody, not all aspiring satirists are so lucky. The Air Pirates certainly did not get away with their parodies of Disney characters. While the courts have been reluctant to hear fair use cases, the cost of litigation makes the possibility of losing any challenge risky. As a result, parody, and other instances of what would appear to be fair use, is not as protected as you might think. If a copyright-holder takes exception to the material and decides to sue for infringement, the defendant must weigh his or her own resources against those of the plaintiff. For the most part, settlement often looks like a rational decision. James Boyle's The Public Domain contains an excellent example of such calculations. I won't reproduce the story in full (Boyle has released the book under a Creative Commons license, so feel free to look it up yourself), b…

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.
Fair Use is not a right While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: http://www.uspto.g…

Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.
Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words…

A Taxonomy of Intellectual Property

In the interest of adding some more substantial content to this blog, I thought I would present a tutorial series. I have already made reference to issues in intellectual property law, but some of my readers might not be familiar with the basics (let along the intricacies) of intellectual property in the US. To that end, this post will be the first in a series of tutorials on intellectual property. Let's begin with a taxonomy of intellectual property.
US intellectual property law recognizes four types of intellectual property.
Copyright Copyright concerns creative works fixed in a tangible medium of expression, including musical works, novels, poems, paintings, sculptures, etc. Since it concerns creative media, copyright is likely the form of intellectual property that people have encountered most. Copyright originated as a way to censor seditious or heretical publishers. Once enshrined in British law, from which the American statutes take their original form, copyright allowed p…

Digital Distribution

Continuing on this week's topic of first sale and digital distribution, I thought I would discuss emerging distribution strategies for digital media. The outline below comes from my observations on new media technologies, some of which can be found in an earlier entry here. As far as I can tell, digital distribution strategies can be divided into three categories according to salient features.
Access-Based distribution (“cloud” based services) the customer subscribes to a service the subscription entitles the customer to access content stored on the provider's servers content is remotely stored, though some items may be remotely cached for offline use when the subscription is terminated, the customer loses access to all content the content provider can exercise a great deal of control over what content is offered; the selection of content may vary over time, meaning that the customer is only guaranteed access to the cloud, not any particular item in the cloud typifie…