Archive
Copyright in the Digital Era: Building Evidence for Policy
Copyright in the Digital Era: Building Evidence for Policy
Source: National Research Council
Over the course of several decades, copyright protection has been expanded and extended through legislative changes occasioned by national and international developments. The content and technology industries affected by copyright and its exceptions, and in some cases balancing the two, have become increasingly important as sources of economic growth, relatively high-paying jobs, and exports. Since the expansion of digital technology in the mid-1990s, they have undergone a technological revolution that has disrupted long-established modes of creating, distributing, and using works ranging from literature and news to film and music to scientific publications and computer software.
In the United States and internationally, these disruptive changes have given rise to a strident debate over copyright’s proper scope and terms and means of its enforcement–a debate between those who believe the digital revolution is progressively undermining the copyright protection essential to encourage the funding, creation, and distribution of new works and those who believe that enhancements to copyright are inhibiting technological innovation and free expression.
Copyright in the Digital Era: Building Evidence for Policy examines a range of questions regarding copyright policy by using a variety of methods, such as case studies, international and sectoral comparisons, and experiments and surveys. This report is especially critical in light of digital age developments that may, for example, change the incentive calculus for various actors in the copyright system, impact the costs of voluntary copyright transactions, pose new enforcement challenges, and change the optimal balance between copyright protection and exceptions.
The 2013 Data Breach Investigations Report
The 2013 Data Breach Investigations Report
Source: Verizon
From press release:
The ‘Verizon 2013 Data Breach Investigations Report’ reveals that large-scale financial cybercrime and state-affiliated espionage dominated the security landscape in 2012. Taking the top spot for all breaches in the 2013 report is financially motived cybercrime (75 percent), with state-affiliated espionage campaigns claiming the No. 2 spot (20 percent). Breaches in the No. 2 spot include cyberthreats aimed at stealing intellectual property — such as classified information, trade secrets and technical resources — to further national and economic interests.
The 2013 DBIR also found that the proportion of incidents involving hacktivists — who act out of ideological motivations or even just for fun — held steady; but the amount of data stolen decreased, as many hacktivists shifted to other methods such as distributed denial of service (DDoS) attacks. These attacks, aimed at paralyzing or disrupting systems, also have significant costs because they impair business and operations.
CRS — The Trans-Pacific Partnership Negotiations and Issues for Congress
The Trans-Pacific Partnership Negotiations and Issues for Congress (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
The Trans-Pacific Partnership (TPP) is a proposed regional free trade agreement (FTA) being negotiated among the United States, Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. On March 15, 2013, Japanese Prime Minister Shinzo Abe announced that Japan would seek to participate in the TPP negotiations. U.S. negotiators and others describe and envision the TPP as a “comprehensive and high-standard” FTA that aims to liberalize trade in nearly all goods and services and include commitments beyond those currently established in the World Trade Organization (WTO). The broad outline of an agreement was announced on the sidelines of the Asia-Pacific Economic Cooperation (APEC) ministerial in November 2011, in Honolulu, HI. If concluded as envisioned, the TPP potentially could eliminate tariff and non-tariff barriers to trade and investment among the parties and could serve as a template for a future trade pact among APEC members and potentially other countries. Congress has a direct interest in the negotiations, both through influencing U.S. negotiating positions with the executive branch, and by passing legislation to implement any resulting agreement.
The 16th round of negotiations concluded in Singapore on March 14, 2013, and the 17th round is scheduled to be held in Lima, Peru in May 2013. The current goal is to reach an agreement in time for the October 2013 APEC summit in Indonesia. For this deadline to be achieved, outstanding negotiating positions may need to be tabled soon in order for political decisions to be made. The negotiating dynamic itself is complex: decisions on key market access issues such as dairy, sugar, and textiles and apparel may be dependent on the outcome of controversial rules negotiations such as intellectual property rights or state-owned enterprises.
Twenty-nine chapters in the agreement are under discussion. The United States is negotiating market access for goods, services, and agriculture with countries with which it does not currently have FTAs: Brunei, Malaysia, New Zealand, and Vietnam. Negotiations are also being conducted on disciplines to intellectual property rights, trade in services, government procurement, investment, rules of origin, competition, labor, and environmental standards and other issues. In many cases, the rules being negotiated are intended to be more rigorous than comparable rules found in the WTO. Some topics, such as state-owned enterprises, regulatory coherence, and supply chain competitiveness, break new ground in FTA negotiations. As the countries that make up the TPP negotiating partners include advanced industrialized, middle income, and developing economies, the TPP, if implemented, may involve substantial restructuring of the economies of some participants.
The TPP serves several strategic goals in U.S. trade policy. First, it is the leading trade policy initiative of the Obama Administration, and is a manifestation of the Administration’s “pivot” to Asia. If concluded, it may serve to shape the economic architecture of the Asia-Pacific region by harmonizing existing agreements with U.S. FTA partners, attracting new participants, and establishing regional rules on new policy issues facing the global economy—possibly providing impetus to future multilateral liberalization under the WTO.
As the negotiations proceed, a number of issues important to Congress are emerging. One is whether the United States can balance its vision of creating a “comprehensive and high standard” agreement with a large and expanding group of countries, while not insisting on terms that other countries will reject. Another issue is how Congress will consider the TPP, if concluded. The present negotiations are not being conducted under the auspices of formal trade promotion authority (TPA)—the latest TPA expired on July 1, 2007—although the Administration informally
Gone in 60 Seconds: The Impact of the Megaupload Shutdown on Movie Sales
Gone in 60 Seconds: The Impact of the Megaupload Shutdown on Movie Sales
Source: Social Science Research Network
The growth of Internet-based piracy has led to a wide-ranging debate over how copyright policy should be enforced in the digital era. While some enforcement approaches involve policies designed to deter consumers from filesharing though incentives or penalties, other approaches target the supply of piracy by shutting down Internet sites that serve as major conduits for pirated content. In this paper we analyze how one such anti-piracy intervention, the shutdown of the popular Megaupload site, affected the digital sales of movies for two major studios.
Simply examining changes in sales after the shutdown would produce an inaccurate measure of its actual effect as sales are changing over time for a variety of reasons. Instead we exploit cross-country variation in pre-shutdown usage of Megaupload as a measure of treatment intensity. Controlling for country-specific trends and the Christmas holiday, we find no statistical relationship between Megaupload penetration and changes in digital sales prior to the shutdown. However, we find a statistically significant positive relationship between a country’s Megaupload penetration and its sales change after the shutdown, such that for each additional 1% pre-shutdown Megaupload penetration, the post-shutdown sales unit change was 2.5% to 3.8% higher, suggesting that these increases are a causal effect of the shutdown.
Aggregating these increases, our analysis across 12 countries suggests that, in the 18 weeks following the shutdown, digital revenues for these two studio’s movies were 6-10% higher than they would have been if not for the shutdown. Thus our findings show that the closing of a major online piracy site can increase digital media sales, and by extension we provide evidence that Internet movie piracy displaces digital film sales.
Invention and the Mobile Economy
Invention and the Mobile Economy
Source: Brookings Institution
In this paper released in conjunction with a Mobile Economy Project panel discussion, Darrell West argues the importance of invention to mobile communications and demonstrates that the mobile industry is one of our most vibrant drivers of economic development.
Highlights include:
• Examples of key inventors: West seeks to understand how to sustain invention and draws lessons for encouraging the critical innovation needed for future development.
• How different countries handle invention: In comparing and contrasting other countries as well as the United States, West adds perspective and paints a global invention landscape.
• Ways to facilitate invention: A number of factors affect the quantity and quality of invention (including but not limited to research and development, the quality of STEM (Science, Technology, Engineering and Mathematics) education, the nature of immigration, and the patent system. West emphasizes how we should maintain a culture of invention to encourage future prosperity.
CRS — Pharmaceutical Patent Settlements: Issues in Innovation and Competitiveness
Pharmaceutical Patent Settlements: Issues in Innovation and Competitiveness (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
Although brand-name pharmaceutical companies routinely procure patents on their innovative medications, such rights are not self-enforcing. Brand-name firms that wish to enforce their patents against generic competitors must therefore commence litigation in the federal courts. Such litigation ordinarily terminates in either a judgment of infringement, which typically blocks generic competition until such time as the patent expires, or a judgment that the patent is invalid or not infringed, which typically opens the market to generic entry.
As with other sorts of commercial litigation, however, the parties to pharmaceutical patent litigation may choose to settle their case. Certain of these settlements have called for the generic firm to neither challenge the brand-name company’s patents nor sell a generic version of the patented drug for a period of time. In exchange, the brand-name drug company agrees to compensate the generic firm, often with substantial monetary payments over a number of years. Because the payment flows counterintuitively, from the patent owner to the accused infringer, this compensation has been termed a “reverse” payment.
Commentators have differed markedly in their views of reverse payment settlements. Some observers believe that they are a consequence of the specialized patent litigation procedures established by the Hatch-Waxman Act. Others have concluded that when one competitor pays another not to market its product, such a settlement is anti-competitive and a violation of the antitrust laws.
Since 2003, Congress has required that litigants notify federal antitrust authorities of their pharmaceutical patent settlements. That legislation did not dictate substantive standards for assessing the validity of these agreements under the antitrust law, however. That determination was left to judicial application of general antitrust principles. Facing different factual patterns, some courts have concluded that a particular reverse payment settlement constituted an antitrust violation, while others have upheld the agreement. The Supreme Court agreed to hear a reverse payment settlement case, Federal Trade Commission v. Watson Pharmaceuticals, Inc., on December 7, 2012, and may possibly issue a ruling that provides a nationally uniform judicial approach to these agreements.
Congress possesses a number of alternatives for addressing reverse payment settlements. One possibility is to await further judicial developments. Another option is to regulate the settlement of pharmaceutical patent litigation in some manner. For example, one unenacted proposal from the 112 th Congress, H.R. 3995, would have declared that certain reverse payment settlements violate the antitrust laws. Another possibility, proposed by S. 27 in the 112 th Congress but not enacted, would establish a presumption of either legality or illegality under the antitrust laws, along with consideration of relevant factors to be weighed by the courts. Still another unenacted proposal from the 112 th Congress, S. 1882, would have introduced reforms to the food and drug laws that would have reduced incentives for generic firms to settle with brand-name companies. Any of these, or other proposals, may be revisited by policymakers during the 113 th Congress.
Mandiant Exposes APT1 – One of China’s Cyber Espionage Units & Releases 3,000 Indicators
Mandiant Exposes APT1 – One of China’s Cyber Espionage Units & Releases 3,000 Indicators
Source: Mandiant
Today, The Mandiant® Intelligence Center™ released an unprecedented report exposing APT1′s multi-year, enterprise-scale computer espionage campaign. APT1 is one of dozens of threat groups Mandiant tracks around the world and we consider it to be one of the most prolific in terms of the sheer quantity of information it has stolen.
Highlights of the report include:
- Evidence linking APT1 to China’s 2nd Bureau of the People’s Liberation Army (PLA) General Staff Department’s (GSD) 3rd Department (Military Cover Designator 61398).
- A timeline of APT1 economic espionage conducted since 2006 against 141 victims across multiple industries.
- APT1′s modus operandi (tools, tactics, procedures) including a compilation of videos showing actual APT1 activity.
- The timeline and details of over 40 APT1 malware families.
- The timeline and details of APT1′s extensive attack infrastructure.
Mandiant is also releasing a digital appendix with more than 3,000 indicators to bolster defenses against APT1 operations.
Intellectual Property Rights: Fiscal Year 2012 Seizure Statistics
Intellectual Property Rights: Fiscal Year 2012 Seizure Statistics
Source: U.S. Customs and Border Protection
In Fiscal Year (FY) 2012, DHS and its agencies, CBP and ICE, remained vigilant in their commitment to protect American consumers from intellectual property theft as well as enforce the rights of intellectual property rights holders by expanding their efforts to seize infringing goods, leading to 691 arrests, 423 indictments and 334 prosecutions. Counterfeit and pirated goods pose a serious threat to America’s economic vitality, the health and safety of American consumers, and our critical infrastructure and national security. Through coordinated efforts to interdict infringing merchandise, including joint operations, DHS enforced intellectual property rights while facilitating the secure flow of legitimate trade and travel.
In recent years, the internet has fueled explosive growth in the numbers of small packages of counterfeit and pirated goods shipped through express carriers and mail. In FY 2012, we heightened our efforts against the sources of these small shipments: the websites involved in the trafficking of counterfeit and pirated goods. In FY 2012, 697 such sites were taken down by ICE, with CBP handling the forfeitures. The number of IPR seizures remained somewhat consistent from 24,792 in FY 2011 to 22,848 in FY 2012. We believe the strategy of pursuing the sources of counterfeit goods will provide long-term results in decreasing the flow of counterfeit merchandise into commerce.
The MSRP of seized goods increased from $1.11 billion in FY 2011 to $1.26 billion in FY 2012, with an average seizure value of more than $10,450. At the same time, CBP and ICE made valuable advances to enhance their ability to combat IP theft in the future, including:
• Nearly 60 sessions of Integrated IPR Field Training were conducted at high-risk ports of entry to improve frontline enforcement efforts;
• The National Defense Authorization Act of 2012 was implemented, allowing for enhanced information-sharing between CBP and trademark holders to identify counterfeits;
• Numerous new authentication tools were procured and deployed to modernize infringement determination efforts and expedite release of authentic shipments;
• IPR Strike Units were created to provide a deterrent effect, aiding the enforcement process;
• The European Police Office (Europol) and the Nuclear Regulatory Commission joined the National Intellectual Property Rights Coordination Center (IPR Center). The IPR Center now has 21 domestic and international partner agencies working together to combat IP theft.
Patenting Prosperity: Invention and Economic Performance in the United States and its Metropolitan Areas
Source: Brookings Institution
“Patenting Prosperity: Invention and Economic Performance in the United States and its Metropolitan Areas” is the first analysis of its kind to present patenting trends on a regional level from 1980 to 2012. The report ranks all of the nation’s roughly 360 metropolitan areas on patenting levels and growth, while noting the firms and organizations responsible. It also analyzes how patenting has affected productivity levels in each region, comparing patents—which embody novel inventions—to other sources of economic dynamism, such as educational attainment.
This report examines the importance of patents as a measure of invention to economic growth and explores why some areas are more inventive than others. Why should we expect there to be a relationship between patenting and urban economic development? As economist Paul Romer has written, the defining nature of ideas, in contrast to other economic goods, is that they are non-rival: their use by any one individual does not preclude others from using them. Although useful ideas can be freely transmitted and copied, the patent system guarantees, in principle, temporary protection from would-be competitors in the marketplace (i.e. excludability). Thus, one would expect regions to realize at least some of the value of invention, as has been shown for individual inventors and companies that patent. Yet there is no guarantee that patents generated in a specific location will generate wealth in that same location—a set of conditions (the presence of a skilled and diverse labor force, an “ecosystem” of businesses providing complementary goods and services, financing and marketing capabilities among them) have to be met for invention to be commercialized. Research has established that patents are correlated with economic growth across and within the same country over time. Yet, metropolitan areas play a uniquely important role in patenting, and the study of metropolitan areas within a single large country—the United States—allows one to isolate the role of patents from other potentially confounding factors like population size, industry concentration, and workforce characteristics.
CRS — Follow-On Biologics: The Law and Intellectual Property Issues
Follow-On Biologics: The Law and Intellectual Property Issues (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
The term “biologics” refers to a category of medical preparations derived from a living organism. These medicines have added notable therapeutic options for many diseases and impacted fields such as oncology and rheumatology. The biologics industry invests extensively in R&D and contributes to a rapidly expanding market for these treatments. Biologics are often costly, however, in part due to the sophistication of the technologies and the manufacturing techniques needed to make them.
Some commentators have also observed that, in contrast to the generic drugs available in traditional pharmaceutical markets, few “follow-on” biologics compete with the original, brandname product. The lack of competition in the biologics markets is perceived to be a consequence of the complexity of biologics in comparison with small-molecule, chemical-based pharmaceuticals. As a result, previously existing accelerated marketing provisions for traditional generic drugs provided under the Federal Food, Drug, and Cosmetic Act do not comfortably apply to biologics.
Congress turned to these concerns when it enacted the Biologics Price Competition and Innovation Act (BPCIA) of 2009. The BPCIA was incorporated into Title VII of the Patient Protection and Affordable Care Act. The BPCIA included three significant components. First, the BPCIA established a licensure pathway for competing versions of previously marketed biologics.
In particular, the legislation established a regulatory regime for two sorts of follow-on biologics, termed “biosimilar” and “interchangeable” biologics. The Food and Drug Administration (FDA) was afforded a prominent role in determining the particular standards for biosimilarity and interchangeability for individual products. Second, the BPCIA created FDA-administered periods of regulatory exclusivity for certain brandname drugs and follow-on products. The BPCIA also provides for a term of regulatory exclusivity for the applicant that is the first to establish that its product is interchangeable with the brandname product. Finally, the BPCIA created a patent dispute resolution procedure for use by brandname and follow-on biologic manufacturers.
A core issue concerning the BPCIA is its ability to preserve innovation while also stimulating competition in the biologics market. Some observers believe that due to the unique nature of biologics and their manufacture, the follow-on biologics market may not yield the same level of savings seen with small-molecule generic drugs. In contrast with traditional generic drugs, more clinical trials may be required, manufacturing methods may be more difficult to replicate in distinct facilities, and follow-on firms may be exposed to higher marketing costs. Whether industry will make extensive use of the BPCIA’s follow-on approval pathway also is not yet certain.
Resolution of the scientific and legal issues that the BPCIA raises will likely engage the courts and the FDA for many years to come. It may also take some time for members of the biologics industry to develop a working familiarity and appropriate strategies within the BPCIA framework. As a result, marketplace availability of significant numbers of follow-on biologics may not be a short-term proposition.
CRS — The Bayh-Dole Act: Selected Issues in Patent Policy and the Commercialization of Technology
The Bayh-Dole Act: Selected Issues in Patent Policy and the Commercialization of Technology (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
Congressional interest in facilitating U.S. technological innovation led to the passage of P.L. 96- 517, Amendments to the Patent and Trademark Act (commonly referred to as the Bayh-Dole Act after its two main sponsors). The act provides patent rights to certain inventions arising out of government-sponsored research and development (R&D) to non-profit institutions and small businesses with the expressed purpose of encouraging the commercialization of new technologies through cooperative ventures between and among the research community, small firms, and industry.
Patents provide an economic incentive for companies to pursue further development and commercialization. Studies indicate that research funding accounts for approximately one-quarter of the costs associated with bringing a new product to market. Patent ownership is seen as a way to encourage the additional, and often substantial investment necessary for generating new goods and services in the private sector. In an academic setting, the possession of title to inventions is expected to provide motivation for the university to license the technology to companies for commercialization in expectation of royalty payments.
The Bayh-Dole Act has been seen as particularly successful in meeting its objectives. However, while the legislation provides a general framework to promote expanded utilization of the results of federally funded research and development, questions have been raised as to the adequacy of current arrangements. Most agree that closer cooperation among industry, government, and academia can augment funding sources (both in the private and public sectors), increase technology transfer, stimulate more innovation (beyond invention), lead to new products and processes, and expand markets. However, others point out that collaboration may provide increased opportunities for conflicts of interest, redirection of research, less openness in sharing of scientific discovery, and a greater emphasis on applied rather than basic research. Additional concerns have been expressed, particularly in relation to the pharmaceutical and biotechnology industries, that the government and the public are not receiving benefits commensurate with the federal contribution to the initial research and development.
Actual experience and cited studies suggest that companies which do not control the results of their investments—either through ownership of patent title, exclusive license, or pricing decisions—tend to be less likely to engage in related R&D. The importance of control over intellectual property is reinforced by the positive effect P.L. 96-517 has had on the emergence of new technologies and techniques generated by U.S. companies.
CRS — Intellectual Property Rights Violations: Federal Civil Remedies and Criminal Penalties Related to Copyrights, Trademarks, and Patents
Source: Congressional Research Service (via Federation of American Scientists)
This report provides information describing the federal civil remedies and criminal penalties that may be available as a consequence of violations of the federal intellectual property laws: the Copyright Act of 1976, the Patent Act of 1952, and the Trademark Act of 1946 (conventionally known as the Lanham Act). The report explains the remedies and penalties for the following intellectual property offenses:
• 17 U.S.C. § 501 (copyright infringement);
• 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b) (criminal copyright infringement for profit);
• 17 U.S.C. § 506(1)(B) and 18 U.S.C. § 2319(c) (criminal copyright infringement without a profit motive);
• 17 U.S.C. § 506(a)(1)(c) and 18 U.S.C. § 2319(d) (pre-release distribution of a copyrighted work over a computer network);
• 17 U.S.C. § 1309 (infringement of a vessel hull or deck design);
• 17 U.S.C. § 1326 (falsely marking an unprotected vessel hull or deck design with a protected design notice);
• 17 U.S.C. §§ 1203, 1204 (circumvention of copyright protection);
• 18 U.S.C. § 2319A (bootleg recordings of live musical performances);
• 18 U.S.C. § 2319B (unauthorized recording of motion pictures in movie theaters);
• 15 U.S.C. § 1114(1) (unauthorized use in commerce of a reproduction, counterfeit, or colorable imitation of a federally registered trademark);
• 15 U.S.C. § 1125(a) (trademark infringement due to false designation, origin, or sponsorship);
• 15 U.S.C. § 1125(c) (dilution of famous trademarks);
• 15 U.S.C. §§ 1125(d) and 1129 (cybersquatting and cyberpiracy in connection with Internet domain names);
• 18 U.S.C. § 2318 (counterfeit/illicit labels and counterfeit documentation and packaging for copyrighted works);
• 35 U.S.C. § 271 (patent infringement);
• 35 U.S.C. § 289 (infringement of a design patent);
• 35 U.S.C. § 292 (false marking of patent-related information in connection with articles sold to the public);
• 28 U.S.C. § 1498 (unauthorized use of a patented invention by or for the United States, or copyright infringement by the United States);
• 19 U.S.C. § 1337 (unfair practices in import trade); • 18 U.S.C. § 2320 (trafficking in counterfeit trademarks);
• 19 U.S.C. § 1526(e), 15 U.S.C. § 1124 (importing merchandise bearing counterfeit marks),18 U.S.C. § 2320(h) (transshipment and exportation of counterfeit goods);
• 18 U.S.C. § 1831 (trade secret theft to benefit a foreign entity); and
• 18 U.S.C. § 1832 (theft of trade secrets for commercial advantage).
CRS — Mayo v. Prometheus: Implications for Patents, Biotechnology, and Personalized Medicine
Mayo v. Prometheus: Implications for Patents, Biotechnology, and Personalized Medicine (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
The recent enactment of the Leahy-Smith America Invents Act (AIA), P.L. 112-29, suggests congressional interest in patents on diagnostic methods. In particular, section 27 of the AIA required the U.S. Patent and Trademark Office to conduct a study on the patenting of genetic diagnostic tests. The 2012 decision of the Supreme Court in Mayo Collaborative Services v. Prometheus Laboratories, Inc. also addressed these sorts of patents. The Court’s decision arguably placed severe limitations on the ability of inventors to obtain diagnostic method patents.
Some observers have welcomed Mayo v. Prometheus, asserting that patents on diagnostic methods are harmful to healthcare and medical research. On the other hand, detractors of the opinion state that patents provide powerful incentives for innovation and public disclosure of new technologies. They believe that the Supreme Court’s decision will negatively impact medical research in the areas of biotechnology and personalized medicine.
The holding in Mayo v. Prometheus may impact another well-publicized litigation, Association for Molecular Pathology v. U.S. Patent & Trademark Office. More commonly known as Myriad—after the name of the patent holder—this litigation may determine whether patents may appropriately issue on human genes.
Congressional policymakers may contend that current circumstances with respect to patentable subject matter are satisfactory and therefore may advocate that no further legislative action need be taken. Should Congress choose to take action, however, a number of options exist. One possibility is an amendment to the Patent Act stipulating that certain subject matter is or is not patentable. Another is to allow patents on particular inventions to issue, but to limit the remedies available to proprietors of such patents.
Secret Scrooges: Holiday Shoppers, Beware Rogue Online Retailers
Secret Scrooges: Holiday Shoppers, Beware Rogue Online Retailers
Source: Nielsen
With Black Friday and Cyber Monday right around the corner, the U.S. holiday shopping season is set to officially kick off in just a few days and many consumers will be looking online to find the best deals for gifts on their shopping lists. But the hunt for holiday shopping deals can have a “bah humbug” side: about one in five bargain-hunting, online shoppers in the U.S. and Europe has mistakenly shopped counterfeit goods online. Nielsen collaborated with MarkMonitor– an online brand protection company–on their new MarkMonitor Shopping Report, released today, and found that many consumers shopping for knock-offs may only be looking for the best deals on legitimate products.
An analysis of anonymized panelists’ search terms and referral traffic to rogue websites shows that for every shopper searching for counterfeit goods on the web, 20 more were merely bargain hunters looking up the best deals, using terms like “discount” and “clearance.” As consumers surf for bargains, counterfeit goods sold at steep discounts may not be as easily distinguishable from end-of-season sales across the web. And if a deal seems too good to be true, it probably is. Many websites selling counterfeit goods can look legitimate – even using official product images.
In fact, consumers visiting sites that sell counterfeit goods are demographically similar to those visiting trusted online retailers, further demonstrating that consumers may not be able to distinguish between legitimate and black-market, online retailers. An anonymized demographic analysis of Nielsen’s permissioned panel showed that online shoppers who browse rogue sites are nearly identical to visitors to more mainstream retailers.
Is your Region … Creative, Innovative, Productive, … or Just Populated?
Is your Region … Creative, Innovative, Productive, … or Just Populated? (PDF)
Source: Martin Prosperity Institute
Previous Martin Prosperity Institute Insights have looked at the relationship between the population and GDP share for U.S. metropolitan areas. This Insight will look deeper into these findings, by looking at metros in relation to two additional variables-awarded patents and Creative Class occupations. While previous Insights have looked at metro population and GDP shares in relation to U.S. totals, this Insight will examine the percentage shares of each of these four variables relation to the U.S. metro total.
The top 5 metros that contribute the most to the U.S Metro Creative Class are New York, Los Angeles, Chicago, Washington and Boston. These 5 metros contribute to 23.33% of the total U.S. metro Creative Class occupation total. The top 10 largest Creative Class metros contribute to 35.04% of the total share and the top 25 contribute to 53.09%. These metros contribute a higher percentage to the total Creative Class metro total than the top 25 most populated metros contribute to total population (49.19%), but less of a percentage than the top 25 GDP metros contribute to total GDP (57.09%).
The top 5 metros with the most awarded patents are San Jose, San Francisco, New York, Los Angeles and Seattle. These top 5 metros contribute to 31.83% of the total awarded patents in U.S. metros (top 10: 47.03%, top 25: 68.39%!). This percentage is much higher than the percentages that the top Creative, populated and GDP metros account for. Established tech centers like Seattle, San Jose and San Francisco have much higher shares of awarded patents than they do GDP, population or Creative Class. Found on this list was also that metros such as Detroit, and Austin contribute more to the total patents, than much higher populated and GDP generating metros such as Houston and Dallas.
When looking at Creative Class share and awarded patents, it is once again apparent that the larger metros generally punch above their weight. This is especially true when looking at patents, as a small number of metros account for an astonishingly large percentage of the total U.S. metropolitan share.
Copyright Infringement and Enforcement in the US
Copyright Infringement and Enforcement in the US (PDF)
Source: American Assembly (Columbia University)
This research note is an effort to bring American public opinion to bear on this vital conversation. The note excerpts a forthcoming survey-based study called Copy Culture in the U.S. and Germany. Drawing on results from the U.S. portion of the survey, it explores what Americans do with digital media, what they want to do, and how they reconcile their attitudes and values with different policies and proposals to enforce copyright online.
The Copy Culture survey was sponsored by The American Assembly, with support from a research award from Google. The content of the survey and its findings are solely the responsibility of the researchers. The U.S. survey was conducted by Princeton Survey Research Associates International. The results are based on interviews on landline and cellular telephones conducted in English with 2,303 adults age 18 or older living in the continental United States from August 1-31, 2011. For results based on the entire sample, the margin of error is plus or minus 2 percentage points.
CRS — An Overview of the “Patent Trolls” Debate
An Overview of the "Patent Trolls" Debate (PDF)
Source: Congressional Research Service (via Federation of American Scientists)
Congress has recently demonstrated significant ongoing interest in litigation by “patent assertion entities” (PAEs), which are colloquially known as “patent trolls” and sometimes referred to as “non-practicing entities” (NPEs). The PAE business model focuses not on developing or commercializing patented inventions but on buying and asserting patents, often against firms that have already begun using the claimed technology after developing it independently, unaware of the PAE patent. PAEs include not only freestanding businesses but patent holding subsidiaries, affiliates, and shells of operating companies that want to participate in the PAE industry and/or a new means of countering competitors. The proliferation of PAEs was among the central factors raised in support of the most recent patent reform legislation, the Leahy-Smith America Invents Act of 2011 (AIA). However, the AIA contains relatively few provisions that arguably might impact PAEs, apparently because of lively debate over what, if anything, should be done about them. Recently, the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act of 2012 (H.R. 6245) was introduced in an effort to affect the number of lawsuits filed by PAEs.
PAEs emerged alongside the burgeoning tech industry around the turn of the 21st century and gained notoriety with lawsuits claiming exclusive ownership of such ubiquitous technologies as wireless email, digital video streaming, and the interactive Web. They have had the attention of Congress, the press, and the public since at least 2006, when a successful PAE suit almost caused the shutdown of BlackBerry wireless service. Such victories in court are rare for PAEs; they lose 92 percent of merits judgments. But few cases make it that far. The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits; and many PAEs set royalty demands strategically well below litigation costs to make the business decision to settle an obvious one. For most PAEs, the costs of litigating and losing are more than offset by the licensing fees they can gain by demonstrating their tenacity to future defendants.
PAEs generated $29 billion in revenues from defendants and licensees in 2011, a 400 percent increase over $7 billion in 2005, and some researchers suggest these costs are primarily deadweight, with less than 25 percent flowing to support innovation and at least that much going towards legal fees. Critics assert that they undermine the purposes of patent law—promoting innovation by providing incentives to invest in development and commercialization of inventions—and injure companies that play a vital role in the American economy. However, defenders of PAEs argue that they actually promote invention by adding liquidity options, managing risk, and compensating small inventors. The Federal Trade Commission and several leading scholars suggest that these benefits exist but are significantly less than the costs they impose. What remains unclear is the extent of imbalance between costs and benefits and whether Congress could recalibrate it to advance the goals of patent law while avoiding unintended consequences.
This report reviews the current debate and controversy surrounding PAEs and their effect on innovation, examines the reasons for the rise in PAE litigation, and explores the legislative options available to Congress if it decides that these are issues that should be addressed.
EU — Customs action to tackle fakes – Frequently Asked Questions
Customs action to tackle fakes – Frequently Asked Questions
Source: European Commission
What measures are in place at EU level to protect IPR?
Customs enforcement: in May 2011 the Commission proposed a new regulation that strengthens the provisions concerning the customs enforcement of IPR. This proposal was part of a comprehensive package of IPR measures aimed at modernising the legal framework in which IPR operate today (see IP 11/630, MEMO 11/327).
Patent protection: the Commission already launched proposals in April for a unitary patent protection under enhanced cooperation (see IP/11/470), so that innovators can protect their inventions at an affordable cost with a single patent covering the entire EU territory with minimum translation costs and without needing to validate that patent at a national level as they currently have to do. Today, obtaining a patent in Europe costs ten times more than one in the US. This situation discourages research, development and innovation, and undermines Europe’s competitiveness. Meanwhile, work continues on the creation of a unified and specialised patent court for the classical European patents and the future European patents with unitary effect. This would considerably reduce litigation costs and the time it takes to resolve patent disputes. It would also increase legal certainty for business. At the European Council, the issue of the seat of the central division of the patent court was finally agreed, but the terms of the informal trialogue agreement with the EP were unfortunately altered. The Commission hopes that a deal can finally be reached early in the autumn.
Trade marks: trade mark registration in the EU has been harmonised in Member States for almost 20 years and the Community trade mark was established 15 years ago. However, there is an increasing demand for more streamlined, effective and consistent registration systems. The Commission intends to present proposals in 2012 to modernise the trade mark system both at EU and national levels and adapt it to the internet era.
IPR violations: the Commission is set to intensify its efforts in this area. Firstly, the Commission has reinforced the European Observatory on Counterfeiting and Piracy, which it launched in 2009, by entrusting its tasks to the Office for Harmonisation in the Internal Market (OHIM). This allows the Observatory to benefit from OHIM’s intellectual property expertise and strong record of delivery in trademarks and designs. Secondly, there is an on-going assessment of the IPR Enforcement Directive (see IP/04/540), to help improve the current enforcement system in the EU. The Directive provides for civil law measures allowing right holders to enforce their intellectual property rights.
In addition to these measures, the Commission supports businesses in the protection and enforcement of their IPR: With projects like the Transatlantic IPR Portal or support offered directly to EU SMEs so they know about IPR challenges before they expand their business (China IPR SME Helpdesk, EU IPR Helpdesk).
A Quick Guide to Software Licensing for the Scientist-Programmer
A Quick Guide to Software Licensing for the Scientist-Programmer
Source: PLoS Computational Biology
Computing is ubiquitous in every domain of scientific research. Software is the means by which scientists harness the power of computers, and much scientific computing relies on software conceived and developed by other practicing researchers. The task of creating scientific software, however, does not end with the publication of computed results. Making the developed software available for inspection and use by other scientists is essential to reproducibility, peer-review, and the ability to build upon others’ work. In fulfilling expectations to distribute and disseminate their software, scientist-programmers are required to be not only proficient scientists and coders, but also knowledgeable in legal strategies for licensing their software. Navigating the often complex legal landscape of software licensing can be overwhelming, even for sophisticated programmers. Institutional technology transfer offices (TTOs) exist to help address this need, but due to mismatches in expectations or specific domain knowledge, interactions between scientists and TTO staff can result in suboptimal outcomes.
As practitioners in the scientific computing and technology law fields, we have witnessed firsthand the confusion and difficulties associated with licensing scientifically generated software. SBGrid.org is a consortium of scientific software developers and users in hundreds of biomedical research laboratories worldwide. As facilitator and middleman between developers and end-users, we commonly assist in the dissemination and use of scientifically generated software. Through research and advocacy, the Samuelson Law, Technology and Public Policy Clinic works with software developers and other creators on licensing issues, particularly issues related to facilitating “open access” to scientific, technical, or creative materials. Together, we offer a primer on software licensing with a focus on the particular needs of the scientist software developer. The aim of this guide is to help scientists better engage with their institutional TTO when choosing software licenses.
Copyright and Innovation: The Untold Story
Copyright and Innovation: The Untold Story
Source: Social Science Research Network
Copyright has an innovation problem. Judicial decisions, private enforcement, and public dialogue ignore innovation and overemphasize the harms of copyright infringement. Just to pick one example, “piracy,” “theft,” and “rogue websites” were the focus of debate in connection with the PROTECT IP Act (PIPA) and Stop Online Piracy Act (SOPA). But such a debate ignores the effect of copyright law and enforcement on innovation. Even though innovation is the most important factor in economic growth, it is difficult to observe, especially in comparison to copyright infringement.
This article addresses this problem. It presents the results of a groundbreaking study of 31 CEOs, company founders, and vice-presidents from technology companies, the recording industry, and venture capital firms. Based on in-depth interviews, the article offers original insights on the relationship between copyright law and innovation. It also analyzes the behavior of the record labels when confronted with the digital music revolution. And it traces innovators’ and investors’ reactions to the district court’s injunction in the case involving peer-to-peer (p2p) service Napster.
The Napster ruling presents an ideal setting for a natural experiment. As the first decision to enjoin a p2p service, it presents a crucial data point from which we can trace effects on innovation and investment. This article concludes that the Napster decision reduced innovation and that it led to a venture capital “wasteland.” The article also explains why the record labels reacted so sluggishly to the distribution of digital music. It points to retailers, lawyers, bonuses, and (consistent with the “Innovator’s Dilemma”) an emphasis on the short term and preservation of existing business models.
The article also steps back to look at copyright litigation more generally. It demonstrates the debilitating effects of lawsuits and statutory damages. It gives numerous examples, in the innovators’ own words, of the effects of personal liability. It traces the possibilities of what we have lost from the Napster decision and from copyright litigation generally. And it points to losses to innovation, venture capital, markets, licensing, and the “magic” of music.
The story of innovation in digital music is a fascinating one that has been ignored for too long. This article aims to fill this gap, ensuring that innovation plays a role in today’s copyright debates.
