Tag: Intellectual Property

Intellectual Property and the COVID Vaccines


The number of COVID-related deaths continues to rise, especially in developing countries like Brazil, where deaths have topped 400,000, while India recently saw 400,000 new COVID cases in a single day. These grim statistics are due to new mutant strains, which have spread rapidly in areas where residents are both poor and in poor health, and where sanitary conditions and local infrastructure are underdeveloped. Major actions are required to slow down and reverse the deadly cycle of death and destruction in these and other places. But what course to take?

To make an appropriate response, it is first necessary to understand how the crisis in developing countries arose. Part of the problem lies in a chronic shortage of vaccine supplies, but much of that shortfall is due to the slow and archaic government systems of distribution, which are often broken (if not corrupt) at every level. The odds that any government can overcome the problematic vaccine shortage by relying on the same officials, programs, and techniques that created the shortage in the first place are slim indeed. A total revision of national programs, preferably with a healthy dose of privatization, is the first priority.

However, many commentators are demanding another approach, calling on wealthy countries like the United States to ease the current vaccine shortage by removing patent protections that private firms have on their vaccines. Thus, Georgetown’s Matthew Kavanagh and Madhavi Sunder, writing for Bloomberg Law, have recently insisted that President Biden “must push drug firms to share science with the world.” Their argument starts with the tragic summary from the WHO that speaks to a colossal failure in the current distribution system: “More than 700 million vaccine doses have been administered globally, but over 87 percent have gone to high-income or upper-middle-income countries, while low income countries have received just 0.2 percent.”

Altered Images: Colorization


About thirty-five years ago the top bosses of my then-employer, the American Film Institute, got us into a real jam with our funders. Taking a stiff-necked, self-righteous pose, AFI impulsively issued strong statements and held an urgent press conference in support of a new artists’ rights movement headed by longtime board members and all-around AFI pals Steven Spielberg and George Lucas. Saying yes to them must have seemed like a no-brainer. What, after all, could be controversial in 1980’s Hollywood about backing Steven and George? And they had allies; the film directors’ guild, as well as groups of film critics and other intellectuals, were coming out in force against a new media technology that they sternly called a mortal threat to America’s film heritage.

The new technique, supposedly so dangerous to preserving American culture on screen, was called colorization, using video technology to allow hand-coloring of black-and-white films and TV shows. In retrospect, it was one of the most overblown film controversies of the mid-Eighties. But the way it worked out set business precedents that still guide media law to this day, and shape the battleground over censorship and online cancel culture. Withdrawing Song of the South from general circulation, or turning police guns into walkie-talkies in E.T., cutting a Donald Trump cameo appearance out of Home Alone 2 or removing Kevin Spacey from All the Money in the World, —they were all affected by what happened in courtrooms and offices in the nearly-forgotten Colorization War of now-distant 1986.

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Article I Section VIII of the Constitution lays out the Powers of Congress, among them is: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” * The temporary monopolies we grant to drug companies is a balancing […]

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On Copyright and Using Photos You Found on the Internet


Use of this copyrighted photo is covered by fair use. So there.

A Federal court recently ruled that the use of a photo some guy found on the Internet was covered by fair use. The newsworthy bit isn’t that you can now go grabbing photos willy-nilly, it’s that anyone at all got off by claiming fair use on an Internet photo. It makes for a pretty good vehicle for considering what fair use means and what it ought to mean. One quick note before I get into it: this article is really excellent and I scalped most of my links off of them.

Jim Geraghty of National Review and Greg Corombos of Radio America are glad to see China made some minor concessions on auto tariffs and intellectual property issues in the wake of tariff battles with the U.S.  They also discuss the FBI raid on Trump lawyer Michael Cohen and what it means, if anything, for the larger Mueller probe.  And Jim discusses his new column, which reveals that former FBI personnel who once thought well of former director James Comey are now very critical of Comey’s embrace of a political role that casts him as a hero and a martyr.

Richard Epstein opines on whether Donald Trump or Barack Obama deserves more credit for the current economic expansion, then tackles the policy agenda the president laid out in his State of the Union address.

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Can you bequeath a “license” to digital content — an mp3 music album, a movie, video game, or computer software — when you die? For now, you cannot… legally.  Eurogamer’s Chris Bratt explains why this might be likely to change in the next decade or two. Preview Open

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It’s a threat the likes of which America has never faced: the theft of intellectual property, lifestyle disruptions, and attacks tailored to degrade or destroy the nation’s military capabilities. Amy Zegart, the Hoover Institution’s Davies Family Senior Fellow and codirector and senior fellow at Stanford University’s Center for International Security and Cooperation, outlines a strategy for how the United States can gain the upper hand in the global cyber war.

Richard Epstein responds to the recent controversy over sharp increases in the price of EpiPens and explains the economic dynamics underpinning the larger debate about prescription drug costs.

India, Intellectual Property, and Innovation


Article72Our conversation about Martin Shkreli and Indian pharmaceuticals reminded me that I’ve been having a mental debate with myself for a while. Where better to air my confusion than Ricochet?

As I argued, the case for importing generic medications from India is open-and-shut. I strongly suspect our failure to permit this is more owed to pharma-company rent-seeking and protectionism than to concern for public safety. American consumers are discerning enough to make their own decisions about whether they trust drugs from overseas. If we allowed them to come into the country, rigorous and trustworthy private mechanisms for inspecting overseas drug manufacturing facilities would quickly emerge, just as they have for awarding Michelin stars to restaurants around the world.

But I’m confused about the ideal regulatory regime for medication under patent, and indeed, for intellectual property generally. It’s a challenging problem if you think markets allocate scarce resources more efficiently than central planners do. The legitimate fight between the US and Indian pharma — “legitimate,” in the sense of, “I’m not sure who’s right” — is a case in point.

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Thursday’s news cycle blessed us with a prime illustration of a particularly tasty flavor of media bias: A left-leaning commentator spread misinformation without consequences, while, elsewhere, someone with an opposing view was being pilloried. The topic in question was the Redskins nickname, a subject about which I’ve written at length.  As most of you know, a […]

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The “Blurred Lines” Trial as Redistribution of Wealth


The “Ick” Factor

Since I do Los Angeles radio show on entertainment law, I’ve been asked by a few news outlets to voice my opinion on the copyright infringement case pitting the Marvin Gaye Estate against Pharrell Williams and Robin Thicke. But who cares about my opinion when we have Richard Epstein and John Yoo? I was thrilled when I heard Troy Senik introduce the topic on the most recent episode of Ricochet’s Law Talk podcast, but who got it right? Richard seems to be close to the age of the jurors in the case. This is the generation of “all this music sounds the same.” (Full disclosure: I’m close to joining that generation myself). John expressed the view that jurors shouldn’t even be allowed to decide these cases.

Should an Artist’s Wishes be Honored Posthumously?


Unknown When I heard that Harper Lee planned to publish a second novel, I got to thinking about whether or not artists should have a say in what happens to their unpublished works after they die. Harper Lee is still with us, of course, but how “with us” she may be is a matter of some dispute: she suffered a stoke in 2007, and has not been the same since.

I first pondered this question years ago when I read that Frédéric Chopin had requested on his deathbed that his unpublished manuscripts be burned. His mother and his sisters ultimately declined to honor this request, and went on to publish 23 of his piano works. Among them is one of his most famous compositions, the Fantasie-Impromptu in C-sharp minor.

My instinct is to honor the artist’s wishes. While the Fantasie-Impomptu certainly seems like a fully realized work, only the composer can know if a work is actually complete. Another good example is Mahler’s 10th Symphony, which he was composing when he died in 1911. With the exception of the Adagio — which was almost certainly completed by the composer — conductors like Leonard Bernstein, Bruno Walter, and Claudio Abbado refused to perform what was left of the work. Mahler was a meticulous composer, often making adjustments to his symphonies long after their premier. For this reason, it is a fairly safe assumption that he would not have wanted any part of the 10th Symphony to be performed. The same applies to “Blumine,” the movement Mahler dropped after the premier of his First symphony.

What’s the Proper Conservative Position on Copyright Duration?


Newspaper_advert_copyright_patent_and_trade_mark-318x330Who should conservatives side with in the battle between those who favor extended governmental protection for copyrights as the promotion of private property vs. those who believe that too much protection hurts consumers? Steven Tapp makes a strong argument in National Review that we should favor the former:

From the words and deeds of the Founders to the rulings of the Rehnquist and Roberts Courts, it is clear that the American free-market system is designed to promote private-property rights, including copyright, as the best engine of economic growth and freedom of expression.The public domain has its place as a venerable and valuable aspect of copyright law and reasonable people can and do disagree about the best way to write copyright law. But proposals to slash the duration of copyright to expand “public property” simply aren’t conservative.

Tapp is writing in response to a recent proposal by Derek Khanna, self-professed spokesman for conservatives on copyright issues:

Supreme Court Should Avoid Overhaul of Patent Protections


In the newest installment of my column for the Hoover Institution’s Defining Ideas, I look at Alice Corporation vs. CLS Bank International, a case that went before the Supreme Court for oral argument yesterday.

The case turns on the question of whether a computing method used in electronic funds transfers is patentable, a query ripe for a clear answer, given that a 10-judge panel on the Federal Circuit produced seven different opinions on the matter. Critics such as Professor Robin Feldman and the New York Times editorial board have argued that the practice is too abstract to deserve intellectual property protection. I have a different take, as I note in the piece: