News and Commentary
The COVID-19 outbreak makes getting physical books from the library difficult, and the need to keep people distracted at home all the more important. That’s why Internet Archive has taken the risky legal move of making 1.4 million books free to borrow without joining a waiting list. Previously, you could “borrow” a book just like you would at a physical library, but if someone already had “checked out” a book you wanted, you went on a waiting list.
Over at EFF, Alex Moss and Elliot Harmon advocate for the federal government to use Section 1498, which would allow the U.S. government to freely use or license any patented invention. The threat of 1498 induced Bayer to lower the price of its anthrax treatment, cipro, in the wake of 9/11 and the same measures (either the actual use of 1498 or threatening to employ it) may be necessary to ensure coronavirus treatments are accessible and affordable to deal with the pandemic.
Some good news emerging from silly litigation: Solid Oak Sketches, which holds the rights to several tattoos featured on NBA players (yes, you can copyright a tattoo) failed in its suit against 2K games for the depictions of the tattoos in the NBA 2K games. The court found that the use of the designs was not infringing because the use of the work in the video game was transformative, the degree of copying was not substantial, and that the game makers had a non-exclusive (albeit non-implied) license to the use of the tattoos when they were using the likeness of the NBA players depicted.
The FTC has sent over $1 million in refund checks to the victim of the World Patent Marketing, Inc. scam, which promised success and patents to unsuspecting “inventors.” Former Acting Attorney General Matthew Whitaker was involved in this scam a number of years ago.
The Bayh-Dole apologists over at IPWatchdog are raising concerns about the government “seiz[ing] business assets” by making any COVID-19 vaccine available through cheap, nonexclusive licenses. Of course, this language is deeply misleading, if not wrong, as requiring licensing is not seizing–they can still make the patented invention.
Jason Koebler at Vice has an excellent article on why the ventilator shortage is exasperated by a lack of right-to-repair laws, which prevent unauthorized repairs to this life-saving equipment.
Walter Olson has a great roundup of intellectual property developments at Overlawyered, including the problems of 3D printing ventilators, churches holding online services, and an eight-year old movie’s alleged infringement by showing a map in the background.
The Department of Justice has filed an amicus brief in favor of Softbank-owned Fortress Investment (a foreign company) in an antitrust case brought by Apple and Intel claiming Fortress has engaged in anticompetitive practices due to extensive trolling by its many subsidiaries with their large patent portfolios.
New Research
A new paper from NBER finds that scientific grants, relative to prizes, patents, and other innovation policy instruments, are the most effective way to support early phase scientific research (the “R” in R&D). Policymakers should be willing to accept a relatively high failure rate as a feature, not a bug, of a successful grant program.
Another NBER paper examines the effects of copyright law on the development of Italian operas. They found that the existence of copyright law increased the quantity and quality of operas, but term extensions produced no measurable effects.
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