Over The Counter Culture

A paragraph taken from a letter written by (or on behalf of) the Rt Hon Jeremy Hunt MP, Secretary of State for Culture, Olympics, Media and Sport, to a Member of the UK Parliament, who had expressed their voters’ concerns over the government’s moves to encourage ISPs to block websites aimed ‘primarily’ at copyright infringement:

“Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available.”

Just… wow. Orwell would be proud of such a literary creation. I thought previous New Labour governments were Big Nanny, but this is just absurd. A website owner does not have full rights to the words on the website. Please, Mr ISP, take an active and detailed concern in what websites I visit, and save me from the commercial horror!

Full letter available from its eventual recipient, Matthew Temple (http://www.mattytemple.com/)

Commentary on the recent case of Schutz (UK) Ltd v Werit UK Ltd [2011] EWCA Civ 303, which held that replacing a tired (unpatented) component out of a patented item constituted patent infringement (making a patented item without a licence from the patent-holder). The anti-competitive aspect of the ruling was considered and dismissed as unimportant to the Court. The implications for repurposing the items we own – especially as the age of 3D printing is soon upon us – is considered by way of conclusion.

Wowzers. Patent law has just given common sense, competition, and sound principles of living a serious left hook. Lord Justice Jacob, who retired earlier this month, has left England & Wales with a stinker. To be fair to Jacob LJ, his fellow judges on the Court of Appeal bench nodded his decision through. And they were applying, as judges should, the law (through precedent cases, specifically, United Wire and Canon v Green Cartridges [1]).

Patent law prevents you from making something that is patented, unless you have the patent-owner’s permission.

This case was about what ‘making’ means. Specifically: if, without seeking permission from the patentholder, you replace bits of something you have already bought, are you making a new object? If yes, you are potentially infringing their patents, having made an unlicensed manifestation of their invention.

The invention in question is a metal cage with a plastic bottle inside. There’s a photo in the judgement. The cage is estimated to last five times as long as the bottle, so once the plastic perishes or is contaminated, you’re going to replace the bottle rather than throw the whole thing out to buy a new one. Reconditioning is as straightforward as putting new plastic bottles in, and scrapping or recycling the old ones. In this industry’s lingo, replacing the plastic bottle from the cage manufacturer (who is the rightsholder to the patent) is “re-bottling”, whilst doing it from a third party is “cross-bottling”.

The straightforward competition between cross-bottlers and re-bottlers drives the cost of repurposing these containers down for businesses in England & Wales. What do businesses do when they don’t want to engage in tiring and potentially expensive free-market competition with others, striving to be the most value for money provider on the market? They turn to intellectual property (or they engage in directly anti-competitive practices, or lobby governments into building regulatory moats around their commercial castle). Holding a patent (a state-granted monopoly) on bottles in metal cages of this design, they sued.

The verdict? Infringement.

And yet Jacob LJ recognised the result of this verdict:

“78. (…) (it) was obviously a concern of the Judge in the present case – that if there was infringement Schütz would, as a commercial matter, have a monopoly in unpatented replacement bottles for their cages.

79.  This essentially economic concern is not really an apt matter for patent law. (…)

80. Does it really matter if Schütz has a monopoly in replacing bottles for its cages?  One cannot really say whether there is any public interest in the nature of freedom of competition seriously involved. (…)”

Sadly, the Court of Appeal decided to ignore what this leads to, what the parties called the ‘re-stringing problem’. If a tennis racket is patented, does re-stringing it infringe the patent? Or even more absurdly, do I infringe a patent on a photocopier if I re-fill it with Asda-brand paper?

The Court also ignored German law’s approach to the problem, specifically, “whether ultimate consumers of the patentee’s product could, by replacing parts, prolong the life of the product.  The German approach is clearly not the same as here”.

Come on. This is the dawn of the 3D printing age: easy reconditioning of everyday items we have spent our hard-earned money on, or bought second-hand, will soon be within our grasp. We also have an ailing manufacturing sector that the efficient and competitive Germans can laugh at. It is simply not acceptable now that neither our courts nor Parliament roll up their sleeves and clip back the barbs of intellectual monopoly to within common sense, economic, environmentally friendly or competitive bounds!

For consideration of the IP implications of 3D printing, see this post over at Technollama.

[1] United Wire v Screen Repair Services [2001] RPC 24; Canon v Green Cartridge  [1997] AC 728

The use of viruses to deliver beneficial genes to upgrade your brain is very much a reality: check out this article from Nature this week:

read here: http://www.nature.com/news/2011/110317/full/news.2011.167.html

Last week saw the news that it is now possible to create superblood by taking it out of the body and using very clever, targeted gene therapy to upgrade the DNA. It’s currently being trialled in AIDS patients, making a subtle mutation to their white blood cells so that they’re more like the HIV-immune cells of so-called HIV controllers – people that can resist HIV attacks because of different ‘flags’ on their cells. Once upgraded, you infuse the blood cells back into the patients where they can start taking on HIV with newfound immunity.

read here: http://www.nature.com/news/2011/110301/full/471016a.html

The usage is therapeutic so far, but each year sees new approaches to blood doping in the Tour de France. How long until this becomes one? How long until someone creates a safe virus capable of boosting your brain functions, and sells it on the Internet? What happens when not just your organs are modified, but also the DNA capable of being passed on to your children (“germ line” modification) – would you leave them with a trust fund, or spend the money permanently making your progeny handsome geniuses?

So humans can now be patched and bugfixed. How long until we have open-source humans? Jokingly, the time is apparently already upon us – a user of popular software source code sharing, review and editing site GitHub uploaded his genome for ‘patching’. We don’t yet have widespread technology to implement the patches that are being written and suggested, but as gene therapy progresses and gets commercialised (and maybe even amateurised), we one day doubtless will.

What a bizarre feeling it must be, knowing that the open-source crowd can pore over the very blueprints to you and start imagining and coding “You, version 2.0“…

(I’m posting what should be a comment on this blogpost by @legalbrat (Tim Bratton, legal in-house at the Financial Times) but for some reason won’t go through). Tim knows his stuff and bats hard and well for his employers, but has a fair and intelligent approach to digital content issues. It’s well worth reading his blog and following him on Twitter.

On this issue, we disagree.

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Tim – I feel this misses Google’s point almost entirely. How does cheaper dispute resolution help a business that argues that it the reason it could build a billion-dollar business based on creating value for users is that the US doesn’t grant as far-reaching intellectual monopolies as the UK does. It thrives, and employs tens of thousands of people, without relying so heavily on monopoly-backed scarcity, whereas the harder our industries try to do so (no videos on YouTube, unfair, draconian DRM, paywalls, even rootkits), the harder the market has punished them.

I’ll return to this, but I feel it’s only fair to address your suggestion more head-on, first.

If ADR is the solution, we already (post Woolf reforms) have CPR costs biases in favour of parties that want to pursue cheaper alternatives to lawsuits (see this important bit of our litigation rules, the Civil Procedure Rules’ Pre-Action Protocol). So far as I know, this includes copyright, so what can be added? Why is it not working (if indeed it isn’t?)

Would a singular ADR mechanism be better than the free choice of ADR given to parties at the moment? I don’t think it will.

The copyright industries have so far proven themselves to be tremendously capable and ardent lobbyists. A single ADR ‘choke point’ is a wonderful opportunity for focused and (cost-) effective lobbying – especially when, as you suggested, it should be staffed by industry practitioners (and where are the representatives of institutions, academics and other noncommercial/non-market users?). This allows the straightforward corrupting influence of the ‘revolving door’ effect into an ADR process, whereas other ADR is usually overseen by barristers or off-duty judges. I can’t help but allege that other forms of corruption would also find purchase in this suggested system, all the more so because (presumably) the RCP would be protected from legal liability from its decisions, so systematic misrepresentations of the law would go unpunished.

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Now, to return to the part about the UK’s overstrong copyright system. As I said, Google built a billion-dollar, 20,000-staff-strong business because it wasn’t overly restricted by intellectual monopoly. So pointing them to ADR doesn’t really help, when it says that such monopolies / IP rights are too strong in the UK.

But what ADR suggestions also totally, totally miss is the fact that the once-professional copyright arena is now swamped with millions upon millions of non-market participants. The digital era has made everyone with an email account or an iPhone a publisher. Copyright law *has* to evolve to match the revolution in who it binds. And only block exemption and DRM, not ADR, can meet that need.

I am not going to pay hundreds of pounds to ask a Pearson-staffed panel whether I can send my mum one paragraph or two of an FT article that talks about me. WhatDoTheyKnow is not a business – so it has no business model into which in can fit/attenuate the cost of ADR when a council relies on copyright to prevent WDTK from publishing/publicising FOI returns.

There is no conceivable way in which non-market copyright actors can stomach the cost of either ADR or full-on litigation. Either nonmarket uses are granted appropriate block exemption, or they must be asked to remove themselves from the copyright arena – hand in any device capable of copying text, images, sound or video (or have it taken from you after three strikes).