06 June 2011

Just Another Monday Batch of Link Sausages

  • The biggest barrier to ebookstores truly replacing brick-and-mortar bookstores is a simple one: "If it's on the 'net, it must be free", which isn't unique to music at all.
  • Chicken or egg? Cable news or collapse of newspapers? Public disdain or ideological propaganda? The key concern is this: Does knowing "which came first" matter, either in understanding the result or preventing similar results in the future? Or, to put it another way: Bread or circuses?
  • The Supreme Court is getting into its busy season, releasing end-of-term opinions. None of today's opinions will be particularly earth-shaking... except for one, and that only by implication. In Stanford v. Roche Pharmaceuticals, No. 09–1159 (06 June 2011) (PDF), six justices agreed that the Bayh-Dole Act does not automatically assign patents arising from US-government-funded research to the US government, regardless of what other agreements might (or might not) say. This seems a relatively uncontroversial proposition... until one delves into the who, the what, the why, and the how of the case. There are two critical reasons that the dissent has by far the better of the argument, particularly since it is dissenting due to an incomplete record. First, if one looks at the factual context, a maker of a tool demanded a patent assignment for anyone who didn't just improve that tool (which would be proper), but for anyone who used that tool in achieving another purpose (which is questionable under both the Patent Act itself and the Intellectual Property Clause). To say the least, that's inconsistent with the concept of fair use in copyright, with the research exception in patent law, and with the expression/idea dichotomy at the core of the Intellectual Property Clause. Second, there's a personnel issue... because the only two Justices with any real pre-judiciary expertise in intellectual property were the dissenters.

    Stanford is far from the end of the world doctrinally; it is, admittedly, very much at the edge. I do approve of one aspect of the majority's decision, though: The implicit disdain for Congressional drafting skills (slip op. at 8–9). I would have been much more explicit in that criticism; but then, I have much less problem with imagining that such criticism would not lead to a crisis between two branches of government, as it never has before.

  • Two descendants of Plessy and Ferguson can join to promote racial equality. Perhaps there's hope for humanity yet.