LuminousVoid

Update
The IPblog has responded. In an update inside a blockquote, he gives us a link to a previous post here on price discrimination.

Update: LV [that’s us -ed] has discovered price discrimination. Hint to LV: Even a Big Mac sells for different prices in different neighborhoods. That’s price discrimination. And the biggest beneficiaries of price discrimination are low incomers. If a commodity were for some arbitrary reason only allowed to be sold for a uniform price, the lowest income groups would pay more, and in some cases would be cut off from access.

Price discrimination is a complicated topic in privacy, and sometimes in IP. We can see that it is complicated when we have a free market type guy like the IPblog call it an “arbitrary reason” for a product to only be “allowed to be sold for a uniform price” when actually the situation is that a competitive market is reaching an equilbrium. If there are different prices it is because there are some barriers — man made or natural — to reaching this equilibrium, which effectively makes for separate markets reaching separate equilibria.

In IP the main way to talk about price discrimination is with the idea of first sale exhaustion. This is the idea that after a product is sold, like a drug, or a trademarked good, or a music CD, the buyer can turn around and sell the item and not run afoul of intellectual property laws, since the owner has already gotten paid for the product. So there’s a policy discussion as to how extensive this exhaustion ought to be, and is gets complicated once people want to import things which may compete with a domestic trademark or other IP rights. In general though, its a question about what barriers to markets should be created — man made barriers — with some people preferring free secondary market trade in goods, and others preferring to have the law set up protectionist barriers to the creation of this secondary market.

This decision gets complicated when people like IPblog talk about having a country pay a price that is “appropriate” to it. That is what we are discussing! What the appropriate market and price is. We’re discussing whether we should be setting that price for Brazil, or the US, or wether we should let a world market decide.

All of this makes it quite odd that the example picked is the Big Mac: something which clearly there is no secondary market for. Thus any price discrimination is enforced by geography and the nature of the product: even if Big Macs are cheaper outside of, say, Manhattan, I’m not going to be buying Big Macs from a third party importer who buys them in New Jersey. That’s just nasty. This is if we ignore that laws against McDonald’s charging different prices throughout the country might exist. Big Mac’s may tell us about what happens when price discrimination exists, but it does not really tell us about what options there are when the discrimination is due to laws, not nature.

Original Post

Urban Dictionary gives us as a definition for n00b:

1. n00b
A inexperienced and/or ignorant or unskilled person. Especially used in computer games.

Another good one is:

6. n00b
An insult describing a person who is not only lacking in knowledge of something, but also blatantly refuses to learn about it and even berates those who would benefit him with experience. Often used in computer game circles.

Sure. Its a term from internet youth/gaming culture. But I think its a pretty apt term for a phenomenon I’ve recently observed.

I happen to have run across what appears to be a nice IP n00b: Tom Giovanetti’s IPblog.org, promising News, Notes and Opinions on Intellectual Property Policy from a Market-Oriented Perspective. Its a blog run by the Institute for Policy Innovation, a Texas based policy outfit that, from its website, looks mostly like its still trying to privatize social security.

What I found particularly n00bish in their IP blog is that I could tell how wrong they were with either a very basic knowledge of the IP doctrine at play or a cursory familiarity with the policy discussion. And that they seem to, from their lack of knowledge, berate people who have knowledge.

Trade Agreements

Let’s take the first example: Policymaking via trade agreements. According to the IPBlog:

Some of our IP-skeptic friends are really big on international agreements, declarations, and treaties.

In my cynical view, the IP-skeptic community has decided that they can’t get what they want in terms of their anti-capitalist, anti-corporate agenda through the legislative process in the U.S., so they’ve focused their attention on doing an end-run around the U.S. system and are hoping to impose their agenda through international bodies and international agreements.

The problem with this newfound “cynical view” is that policymaking in IP has been occuring in the multinational field for a while now. If anything, the “IP-skeptic” groups (he’s referring to people like the Free Software Foundation and the Consumer Project on Technology) are playing catch-up to the idea of introducing substantive IP in trade agreements. NAFTA contained protectionist IP provisions favorable to rights owners. CAFTA now has it too. There’s the WTO/TRIPs agreement, which people are having to comply with in a way favorable to rights-holders.

And I know this not from taking a course in multinational IP. I mostly know it from having an acquaintance who works on IP who forwards me emails and news, and has for years. Which is why its so odd to have someone who is paid to work on this stuff be so clueless about it.

Trademarks

The other example is a failure to understand something quite basic about trademarks: Let´s see your open source tee shirts.

All the IP sceptic folks showed up on the last day of the meeting wearing their adorable black “A2K Now” tee shirts.

Well, as I was sitting in close proximity to the commies with the Free Software Foundation, I got a close look at the tee shirts in question. You can imagine my glee as I pointed out to them that the tee shirts they were wearing actually carried not one but TWO different forms of IP protection. On the tag there were both brand and style registered trademarks.

“Where are your open source tee shirts?” I asked. “Show me your Creative Commons commemorative gear!” I taunted. This resulted in a rather heated discussion, as you might imagine, but I got a huge kick out of it.

The problem with this is that there’s really no one arguing about trademark protection here. Trademarks basically signify source, and you can’t confuse people as to the source of your product. Its really hard to think of a creative commons or open source analogue — even given that Creative Commons and some open source regimes depend on IP protection.

Its hard to see the connection unless you see IP as a uniform blob — missing out on what actually is going on. It also takes a bit of missing out on the fact that both the creative commons and some forms of open source rely on copyright laws to exist. This isn’t really about missing a nuance of trademarks or other IP. It’s about missing something quite fundamental to what trademarks and copyrights are.

I know these fundamental things not because I am a law student, but because I’m interested in these topics and have followed them casually for a bit of time. If I, a casual observer, am not making these mistakes, then someone who is being paid to be a part of the policy discussion should definately not be making these mistakes. They certainly have no place picking on the people who seem to know what they are talking about.

Hacks?

Whats to make of all of this? How can someone that participates in this policy dialog be so clueless about what is going on? How can someone get funded to be this clueless? I can not think of a rational reason for it, other than plain old misfeasence. Maybe the entire point is to confuse, to rewrite basic, foundational facts of the debate. Maybe they’re just dupes of their paymasters, and seriously don’t know any better. I hope this is not it, because multinational IP policy is real important and worth debating. The presence of hacks and flunkies is not a good sign.

The World Intellectual Property Organization (WIPO) has put online a searcheable database of decisions from its Uniform Domain Name Dispute Resolution Policy (UDRP). Try searching for some (in)famous marks, such as “walmart.”

They’ve also drafted an overview of the UDRP decisions. This overview highlights key questions faced by the UDRP panels. According them:

This overview is created in recognition of the need that has been expressed to identify, as much as possible, consensus among UDRP decisions, so as to maximize the consistency of the UDRP system.

It should also serve as a handy guide to researchers who would be interested in the consensus outcomes of the UDRP. For example, researchers would be interested in knowing that:

Evidence of offers to sell the domain name in settlement discussions is admissible under the UDRP, and is often used to show bad faith. This is because many cybersquatters often wait until a trademark owner launches a complaint before asking for payment and because panels are competent to decide whether settlement discussions represent a good faith effort to compromise or a bad faith effort to extort.

UPDATE ERROR.However, in American Law, under the Federal Rule of Evidence no. 408, evidence of conduct or statements made in compromise negotiations is not admissible.)

Under the Anti-Cybersquatting and Consumer Protection Act, these sorts of statements are permitted into evidence.

Another interesting feature is the ability to search by domain name. Searching for “walmart” brought me this interesting case: Wal-Mart Stores, Inc. v. Walsucks and Walmarket Puerto Rico:

Respondent has appended the term “-sucks” to domain names that are, in the absence of that term, confusingly similar to Complainant’s mark. The addition of the pejorative verb “sucks” is tantamount to creating the phrase “Wal-Mart Canada sucks” (and comparable phrases with Respondent’s other “-sucks” formative domain names)

…

In the present case, two factors . . . compel a determination that Respondent’s disputed domain names are confusingly similar to Complainant’s mark – that is, that there is a likelihood of confusion on the part of Internet users.

…

Internet users with search engine results listing Respondent’s domains are likely to be puzzled or surprised by the coupling of Complainant’s mark with the pejorative verb “sucks”. Such users, including potential customers of Complainant, are not likely to conclude that Complainant is the sponsor of the identified websites. However, it is likely (given the relative ease by which websites can be entered) that such users will choose to visit the sites, if only to satisfy their curiosity. Respondent will have accomplished his objective of diverting potential customers of Complainant to his websites by the use of domain names that are similar to Complainant’s trademark.

How they can be confusingly similar, when “users are not likely to conclude that [Walmart] is the sponsor,” I don’t know.

In the end though, it was determined that the registration was in bad faith, and it looks like with good reason.

Respondent’s claim to a “freedom of expression” interest in establishing the “walmartcanadasucks.com” and “walmartuksucks.com” websites is contradicted by his own words. A demand for payment from the potential and actual subject of critical sites is fundamentally inconsistent with the right of free expression. It is as if a newspaper were to approach the potential subject of an adverse investigative report to propose that for an appropriate fee the report could be avoided. This would not be characterized as “free speech” activity. It would rather be characterized as “extortion”.

But think of the poor, puzzled, Walmart shopper attracted to walmartsucks.com!

Cory Doctorow, European Affairs Coordinator of the Electronic Frontier Foundation, has recently posted online his paper on DRM in the developing world. Digital Rights Management: A failure in the developed world, a danger to the developing world.

Cory argues that DRM systems upset copyright policies of developing countries; may harm consumer and other vulnerable interests; don’t recognize technological realities in developing countries; and don’t even work at protecting content. Cory speaks generally about DRM schemes, and about the harms on economic and cultural development that it can cause due to strong control of content by rightsowners against the accessing public. I want to add two other points about DRM that are outside the domain of the owners/accessors balance.

DRM can allow authoritarian regimes to keep tabs on their population. Some DRM allows a central location — be it a content owner, licensing group, or even a government entity to collect information about what works are accessed and passed on. This has serious privacy implications: someone tracks what we read and when. Everytime there is access, there is a transaction, and possibly a record. There is also a neat centralized source for that information: the rights-clearing mechanism.

In countries that don’t have a strong commitment to freedom of speech, this centralization could be problematic. It could facilitate censorship, such that the government can go to a single entity: the permission granter, and find a way to disable the accessibility of the entire public.

While helping a friend brainstorm a paper for our Multinational IP class, he mentioned to me his bright idea: Iraqi IP law. But it didn’t quite have the multinational angle. So then we had the idea to compare it to our bilateral treaties. The way I understand things, there is a world minimum for protection of IP: the TRIPS standard. However, when the US negotiates a trade agreement with someone, the US usually demands something more than TRIPS. They demand TRIPS+ or ‘TRIPS-plus’. But we have to bargain to get that, people don’t give it up, and aren’t jumping to impose it.

You can guess not just the question but also the answer: Which way is Iraqi IP law going? TRIPS or TRIPS+? I think we can safely guess the latter. I wonder if you could even do some economics and come up with a ‘valuation’ for TRIPS+ (from the treaties) and see what it comes out to in Iraq. What it is that we’re getting for free. Well. Not free, but in exchange for running their country.

Wish I had thought of it myself. Right now I’m between the database treaty and the broadcasting treaty. From cursory google searches, it looks like the database treaty is dead, with Europe protecting DB’s and the US not. I guess the paper topic would be to compare these two and look for a multinational solution.