Capitol vs. Naxos Round Two: New York State Court Says Pre-1972 Recordings Protected

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Apr 28, 2005, 10:59:14 AM4/28/05

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The decision seemed soundly reasoned to me, but then so did the earlier
one. It looks like a legislative decision is needed, which is fine by me,
since I'm reluctant to get the courts into the legislation business. (This
can be for New York State--the major player in old recordings--as well as
the national government.

I'd like to contribute whatever skills I have as an economist to any
legislative proposals. I've already sent out an essay, "Copyright,
Congress, Due Diligence, and Coase," and append it here.

What I'd like to get at this time is some idea of what the potential
profit stream of these old recordings are and, most especially, what the
potential profits from classical 78 rpm recordings, my own area of
interest, are.

I'm thinking of suggesting re-registration of a copyright every five years
for $100, after an initial period of 20 years. My reasoning is that a
decision to reprint an old work is based on profit but that the projected
profit will generally have to be thousands of dollars or not at all. $100
is just noise in the estimate. (This is what an economist sees routinely,
but not everyone else.) $100 every five years is enough that a copyright
holder will not routinely re-register everything, as Yale University Press
apparently did after the 28-year expiry date. (See my piece below.)

Now that pressure groups, university and others, are forming to get works
into the public domain, the chances for a legislative compromise are
definitely growing. But we need reasonable and realistic figures.

There are many issues to be worked out. I think an entire album gets
copyrighted all at once, and so does a newspaper. But should a paper have
to pay $100 x 365 to renew a year's worth? Papers sell specific articles
for a price, but I very much doubt that any make $36,500 off any one year
of back articles. And certain groups, like Alcoholics Anonymous, make
money off their pamphlets in toto but not individually.

I remind you also of books being available in print-on-demand. It's a way
of keeping them "in print." This is very much the case with online music.

We should also think about anticipating newer technologies in making
legislative proposals.

One good feature about requiring periodic re-registration: if a work is
not re-registered, a copyright owner cannot come out of the woodworks and
sue, a problem I brought up in my piece.

Of course, the Capitol vs. Naxos suit is largely over turf and the
escalation of the contests of wills in typical mammalian fashion than it
is over money.

If we can't win in the legislature, a philanthropist can simply buy any
copyrights, along with a promise not to press any claims in the future. I
can't imagine Capitol valuing EMI classical 78s for more than $100,000,
which may be more than they have spent in litigation already.

Or the recordings can be hosted on a site in a country where the
copyright has definitely expired and the tracks sold online. This may be
criminal but not enforceable. I wonder why there is no foreign Napster,
though. I may have missed something.

Dollar estimates are what I'm looking for now, as well as always
corrections to my bad logic.

I think you'll find the entire decision, on link 41, interesting, as well
as the excerpts in the article immediately below.

Frank

--------------------

New York State Court Says Pre-1972 Recordings Protected
http://blogcritics.org/archives/2005/04/05/140248.php

Posted by [32]Eric Olsen on April 05, 2005 02:02 PM (See [33]all posts
by Eric Olsen) Filed under: [34]Politics, [35]Music: Business,
[36]Music: News, [37]Politics: Law - Scroll down to read [38]comments
on this story and/or add one of your own.
[39][LINK] [40]Music Copyright for the New MilleniumDavid J. MoserBook
from ArtistproRelease date: 01 May, 2001

Absorbing and potentially far-reaching copyright case decided by the
New York State Court of Appeals today, Capitol Records v. Naxos of
America. The state's highest court ruled common law in New York
"protects ownership interests in sound recordings made before 1972
that are not covered by the federal copyright act." As a result,
Capitol can continue to sue Naxos for copyright violation for records
made 40 years before the federal copyright law.

Key portions of [41]The opinion:
Sound recordings produced after February 15, 1972 can be protected
from infringement under federal copyright law but Congress did not
extend statutory protection to recordings created before that
date. In a certified question, the United States Court of Appeals
for the Second Circuit asks us whether there is common-law
copyright protection in New York for sound recordings made prior
to 1972.
This case involves a dispute between two music recording
companies. Capitol Records Inc. owns the rights to several
classical recordings made in the 1930s. Naxos of America Inc.
copied those recordings from the original shellac record format
and, using technological advances, remastered the recordings for
sale to the public as compact discs. Naxos did not request
permission from Capitol to use the recordings. The issue here is
whether Capitol may maintain a copyright infringement action
against Naxos premised on the common law of New York. Because the
answer to this question will have significant ramifications for
the music recording industry, as well as these litigants, we were
offered and accepted certification.
I. Factual and Procedural Background
During the 1930s, The Gramophone Company Limited, currently known
as EMI Records Limited -- the parent company of Capitol --
recorded classical musical performances of three world-renowned
artists: Yehudi Menuhin's July 1932 performance of Edward Elgar's
"Violin Concerto in B minor, Opus 61"; Pablo Casals' performances
of J.S. Bach's cello suites, recorded between November 1936 and
June 1939; and Edwin Fischer's performances of Bach's "The Well
Tempered Clavier, Book I," recorded between April 1933 and August
1934, and of Bach's "The Well Tempered Clavier, Book II," recorded
between February 1935 and June 1936. The artists' contracts
specified that Gramophone would have absolute, worldwide rights to
the performances, including the right to reproduce and sell copies
of the performances to the public.
Gramophone recorded all of the performances in England. At that
time, the United Kingdom provided statutory copyright protection
to sound recordings for 50 years. Thus, all of the Gramophone
recordings at issue had entered the public domain in the United
Kingdom by 1990.
In 1996, subsidiaries of EMI entered into a series of agreements
whereby Capitol was granted an exclusive license to exploit the
Gramophone recordings in the United States. Using modern
electronic methods, Capitol remastered the original recordings to
improve their audio quality and transferred them to
digital format for sale to the public.
Naxos also wished to preserve these important historical
recordings. It located copies of the original 1930s shellac
recordings and undertook its own multistep restoration process in
the United Kingdom. The remastered compact disc versions produced
by Naxos were distributed for sale in the United States beginning
in 1999, competing with the compact disc products marketed by
Capitol. Naxos never obtained a license from Capitol and rebuffed
Capitol's demand to cease and desist the sale of the Naxos compact
discs.
Capitol commenced an action against Naxos in the United States
District Court for the Southern District of New York in 2002. The
complaint set forth claims of common-law copyright infringement,
unfair competition, misappropriation and unjust enrichment, all of
which were premised on the law of the State of New York, the situs
of the alleged infringement. Naxos moved to dismiss for failure to
state a claim, arguing that the recordings had entered the public
domain in the United Kingdom and, hence, the United States as
well. Capitol moved for, among other relief, partial summary
judgment on liability.
The District Court granted summary judgment to Naxos. The court
characterized Capitol's cause of action as a "hybrid copyright,
unfair competition" claim and concluded that Capitol did not have
intellectual property rights in the original recordings because
its copyrights had expired in the United Kingdom. With respect to
the unfair competition cause of action, the District Court opined
that the Naxos recordings were not a "duplicate" or "imitation" of
the original recordings but "an entirely new and commercially
viable product" because the original shellac records were obsolete
and Naxos had removed "numerous sound imperfections" from the
records. Finding that public policy favored the preservation and
redissemination of classical performances, the court held that
Capitol failed to show that Naxos had engaged in the type of bad
faith required to sustain an unfair competition cause of action.
In a second written decision, the court adhered to its ruling.
On appeal, the Second Circuit determined that this case raises
several unsettled issues of New York law. After noting that, under
federal law, "it is entirely up to New York to determine the scope
of its common law copyright with respect to pre-1972 sound
recordings," the Second Circuit certified the following question
to this Court: "In view of the District Court's assessment of the
undisputed facts, but without regard to the issue of abandonment,
is Naxos entitled to defeat Capitol's claim for infringement of
common law copyrights in the original recordings?" We are also
asked to answer three questions:
(1) "Does the expiration of the term of a copyright in the country
of origin terminate a common law copyright in New York?";
(2) "Does a cause of action for common law copyright infringement
include some or all of the elements of unfair competition?"; and
(3) "Is a claim of common law copyright infringement defeated by a
defendant's showing that the plaintiff's work has slight if any
current market and that the defendant's work, although using
components of the plaintiff's work, is fairly to be regarded as a
'new product'?"
...With the 1971, 1976 and subsequent congressional amendments to
the federal copyright act, New York common-law protection of sound
recordings has been abrogated, but only in two respects. First,
the common law does not apply to any sound recording fixed, within
the meaning of the federal act, after February 15, 1972, because
recordings made after that date are eligible for federal statutory
copyright protection. Second, state common-law copyright
protection is no longer perpetual for sound recordings not covered
by the federal act (those fixed before February 15, 1972), because
the federal act mandates that any state common-law rights will
cease on February 15, 2067. The musical recordings at issue in
this case, created before February 15, 1972, are therefore
entitled to copyright protection under New York common law until
the effective date of federal preemption -- February 15, 2067.
...Having concluded that the musical recordings here are
presumptively entitled to common-law copyright protection in New
York, we proceed to address the three sub-questions posed by the
Second Circuit.
First: "Does the expiration of the term of a copyright in the
country of origin terminate a common law copyright in New York?"

When the recordings here were created in England, they received
statutory copyright protection in the United Kingdom for 50 years
after the date of creation. As a result, the UK copyrights for all
of the recordings expired by the 1990s -- years before Naxos's
allegedly infringing actions. Naxos argues, and the District Court
apparently agreed, that the expiration of the foreign copyrights
prevents the enforcement of copyright protections in other
jurisdictions, including the United States and New York.
We disagree and concur with the Second Circuit's observation that
"nothing in federal law denies Capitol enforceable rights in the
original recordings simply because the U.K. copyrights have
expired."
Under the Federal Constitution, treaties that the United States
enters with other countries have the force of federal law and must
be respected by the states. Although the Berne Convention and the
Universal Copyright Convention both recognize the "Rule of the
Shorter Term," which generally provides that the term of copyright
in the nation where a work is first published should be applied by
other nations that would grant a longer period of protection,
neither treaty applies this rule to sound recordings. Instead,
sound recordings fall within the ambit of the Phonograms
Convention but this treaty applies only to recordings fixed after
the date it became law (March 10, 1974 in the United States).
Furthermore, the Phonograms Convention does not contain a rule of
the shorter term. Nor does the statutory implementation of the
Uruguay Round Agreements Act, which appears in 17 USC § 104A,
alter the common law with respect to the recordings at issue.
That provision restores US copyright protection to certain public
domain works but does not apply to recordings, like those here,
that were in the public domain in the country of origin prior to
1996.
Thus, neither federal statutory nor constitutional law prohibits
the states from providing common-law protection to artistic works
that are in the public domain in the country of origin. Nothing in
the statutes of this state or in our jurisprudence suggests such a
prohibition is warranted. Indeed, there are indications that the
opposite is true, given that the copyright protection extended by
state common law to sound recordings not covered by the federal
copyright act is similar to the scope of common-law ownership
rights in other forms of property, which can exist indefinitely.
Until 2067, no federal or state statutory impediment constricts
this common-law durational component for pre-1972 sound
recordings. Applying the copyright law of the situs where the
infringement occurs, there is no justification under New York law
for substituting the British copyright term in place of New York's
common-law protection for these recordings, which continues until
federal preemption occurs. We therefore answer the first
subquestion in the negative because we conclude that New York
provides common-law copyright protection to sound recordings not
covered by the federal copyright act, regardless of the public
domain status in the country of origin, if the alleged act of
infringement occurred in New York.
Second: "Does a cause of action for common law copyright
infringement include some or all of the elements of unfair
competition?"
We understand this question to ask whether the District Court was
correct to assume that some type of malicious intent or bad faith
is a necessary element of a state common-law copyright
infringement claim. A copyright infringement cause of action in
New York consists of two elements: (1) the existence of a valid
copyright; and (2) unauthorized reproduction of the work protected
by the copyright. To the extent that any inference of deceptive or
fraudulent intent may have been referred to in early copyright
case law, it appears to have been the view that bad faith was
inherent in the act of copying and selling a work without
permission from a competitor because this would deprive the true
owner of the work's value. But fraud or bad faith is not an
element of an infringement action in modern New York law.
Copyright infringement is distinguishable from unfair competition,
which in addition to unauthorized copying and distribution
requires competition in the marketplace or similar actions
designed for commercial benefit, or deception of the public. In
response to the second sub-question, we hold that the causes of
action for copyright infringement and unfair competition are not
synonymous under New York law.
Third: "Is a claim of common law copyright infringement defeated
by a defendant's showing that the plaintiff's work has slight if
any current market and that the defendant's work, although using
components of the plaintiff's work, is fairly to be regarded as a
'new product'?"
We begin by noting that Naxos does not contend that "market size"
or "new product" issues are relevant to the existence of a
common-law copyright regarding sound recordings.
Its discussion of those terms is limited to the context of an
unfair competition cause of action. In any event, the ability to
enforce copyright protections provided by New York common law are
not diminished due to the size of the market and, therefore, the
popularity of a product does not affect a state common-law
copyright infringement claim.
Nor do we believe that a state common-law copyright claim can be
defeated under the so-called "new product" analysis. We note that
the Second Circuit has declared that the "[i]ndependent creation"
of a new product can "not consist of actual copying" of an entire
work. In the related area of the federal "fair use" doctrine, it
is a general rule that the reproduction of an entire copyrighted
work constitutes infringement. We see no justification for
adopting a different rule of state law. Thus, even assuming that
Naxos has created a "new product" due to its remastering efforts
that enhance sound quality, that product can be deemed to infringe
on Capitol's copyright to the extent that it utilizes the original
elements of the protected performances. We conclude that the third
sub-question should be answered in the negative.
VI. Conclusion
In light of our responses to these inquiries and our conclusion
that state common law protects ownership interests in sound
recordings made before 1972 that are not covered by the federal
copyright act, the answer to the main certified question is that,
without regard to the issue of abandonment, Naxos is not entitled
to defeat Capitol's claim for infringement of common-law copyright
in the original recordings. Accordingly, the certified question
should be answered in the negative.

"I hope the companies who have been inclined to copy older classical
recordings realize the New York court has spoken definitively on this
and end any unlicensed copying," Capitol attorney [42]Philip Allen
Lacovara told AP. "It does have enormous importance."

More fine reading at [43]Blogcritics.org. Scroll down to read
comments on this story and/or add one of your own. Support
Blogcritics.org by [44]shopping at Amazon.com from this page.

[45]Music Copyright for the New Millenium/David J. Moser [46]The
Common Law/Oliver Wendell Holmes [47]Imagining the Law: Common Law and
the Foundations of the American Legal System/Norman F. Cantor

Posted by [48]Eric Olsen on April 05, 2005 02:02 PM (See [49]all posts
by Eric Olsen) Filed under: [50]Politics, [51]Music: Business,
[52]Music: News, [53]Politics: Law

Comment on this post and/or leave a message for the author here.

Comment 1 posted by [54]RJ on April 6, 2005 03:51 AM:

I can't really disagree with the opinion of the Court, but where the
hell did the government come up with the date of 2067?

Comment 2 posted by [55]JR on April 6, 2005 10:03 AM:

I'd guess it's a grandfather clause - the Feds were trying to unify
the copyright laws without limiting the duration of any individual
state copyright limits currently in place when they passed the new
law. (?)
Best pick up all those bargain [56]JSP sets right now. I wonder how
they're going to keep those scofflaw imports out of our stores.
There was a Proust review in [57]Slate that touched on the effects of
the infinitely receding copyright limits.

Comment 3 posted by [58]Eric Olsen on April 6, 2005 10:32 AM:

this is really weird and expands copyright in New York state, anyway,
vastly - it may go to the Supreme Court

References

---------------

Copyright, Congress, Due Diligence, and Coase
COPYRIGHT, CONGRESS, DUE DILIGENCE, AND COASE
by Frank Forman
che...@panix.com

[I place this in the public domain, so use freely as you
see fit. I would like, however, suggestions about who to
send it to or where I might publish it. My main aim is
to get others to steal my ideas about a way of making
a compromise between academics and other scholars and
business interests.]

Congress should amend the copyright act to allow anyone
to reprint an old book if a decent effort to track down
the copyright holder turns up blank or to pay only a
nominal amount if the book hasn't been in print for a
long time. Once the book, or article, or sound
recording, or whatever, goes back into print in this
way, it should forever remain the public domain.

This should keep the big boys--Disney, Playboy, the big
publishers--reasonably happy, and all the little
people, like scholars, should be happy too. Article I,
Section 8, Clause 8 of the Constitution authorizes
Congress "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." You and I might naively
think that this means that a judicious balance will be
struck about just how long these limited times are, and
those of us with business calculators know that there
is very little difference between an annuity that pays
out for fifty, even twenty, years and one that pays out
forever. Copyrights should not last for very long,
twenty years being my somewhat educated guess.

But in a democracy (rule by rent-seeking pressure
groups), this judicious balance is not struck, and the
reason is that those who stand to gain, however
slightly, from long copyrights are concentrated, while
those who stand to benefit from shorter ones are
diffused. The only way to strike an actual balance is
to have experts rule or to change human nature so that
politicians follow an abstract public interest rather
than trying to get reelected. We've tried the both with
unhappy results.

I see no prospect that the big publishers are going to
start acting in the interests of scholars, but those
who would like to revive old, forgotten books are
getting organized. Politicians need their votes, too.
Hence, the compromise I have proposed. I can't work out
the details of what a decent effort (called "due
diligence" by regulators) to track down a copyright
holder would be, nor to specify what the other terms of
the compromise might mean. Spelling these out will be
the job, not so much for Congress as for the U.S.
Copyright Office, whose staff numbers over 400 but does
not include a single economist, so Marybeth Peters,
then and now the charming Register of Copyrights, told
me at a convention of the Association for Recorded
Sound Collections several years ago.

I *am* an economist, and I'm here to propose something
more than just a compromise. This takes us to the Coase
of my title, specifically to Ronald Coase and "The
Problem of Social Cost," which is the most widely cited
paper both in economics journals and in legal journals.
It came out in 1960 in a journal called, not very
surprisingly, the _Journal of Law *and* Economics_. It
is so well written that you do not need a single course
in either field to understand it. It is a pleasure to
read, too, and I recommend it. It has been reprinted in
a Coase anthology _The Firm, the Market, and the Law_.

Coase says, with the terribly important qualifier *in
the absence of transaction costs* (the whole point of
my writing here, but later), that it makes no
difference in behavior how property rights are drawn
up. Coase's famous illustration is the case of a
railroad scattering sparks along the tracks as it sped
through farmland, occasionally causing fires. Who's to
pay? If the railroad is liable, it can either pay for
the fires or put devices on its locomotives to prevent
the fires. Whether the fires are so rare that it
doesn't pay to install the devices is up to the folks
on the railroads to decide.

On the other hand, if the railroads are not liable and
if the safety devices are economical, then the farmers
should get together and pay the railroads to install
the devices. Coase's point is that the pure economics
of the situation, not where the liability lies, is all
that matters, though of course the railroads would
rather not be liable and the farmers wish they were.

The practical difficulties of protecting farms from
sparks, when there is no liability on the part of the
railroads, are immediately obvious: the farmers would
have to get organized so that they all paid and each
farmer didn't expect the other farmers to pay and not
he. In other words, what we economists call the
"transaction costs" involved in organizing the farmers
would be prohibitive. And so they often are, in finding
the copyright holders of a book that has long since
ceased to make anyone money but is still legally under
copyright protection. I know someone who wanted to put
Henry Veatch's _Intentional Logic_ up on her website.
It was copyrighted in 1952. She wanted to know if Yale
University Press had renewed its copyright, for
otherwise it would now be in the public domain. She
wrote the press, and they did not bother to reply. She
asked me to check at the Library of Congress. I hiked
up there, a mile or so up Capitol Hill on my lunch
hour, to a huge room in the Madison Building. It was
between Christmas and New Year's with hardly anyone
there, so I got immediate help and was taken over to
the correct bank of 3x5 file cabinets, which I could
never have found on my own, and shown what the markings
on those cards meant.

Anyone further afield would have had to pay the Library
of Congress to do the search, and you know that you
always have to pay for the minimum of an hour. It would
take the obligatory "six to eight weeks," too. As it
happened, Yale had sent in the forms and paid the fees
to get the copyright extended for the second term of
twenty-eight years. Apparently Yale did so for all its
books.

Most books did not get their copyrights renewed under
the old system of twenty-eight years plus twenty-eight
years renewable (it was fourteen plus fourteen in
1790), and this would still be true of most books
today.

Veatch's book was an easy case. Publishers go out of
business. Individual copyright owners die, oftentimes
without wills. Copyrights can be sold, with the Library
of Congress never finding out. All this can be
difficult to track down. And if Yale University Press
won't bother to answer a simple inquiry, you can bet on
the difficulties elsewhere.

Worse, and even if Yale did answer the inquiry, there
are a great many people in this world whose job it is
to say no. Or to charge you a minimum of $250 (like the
infamous Nieman-Marcus cookie recipe. Since the
Waldorf-Astoria hotel allegedly did the same thing in
the 1930s for its Red Velvet Cake, both stories are
likely bogus. Google nieman waldorf recipe). It was
just not worth it to her to pay out $250 for the
privilege of scanning in the book and putting it on her
site.

Apparently some people like this book. My friend did,
and one copy was recently offered on
http://www.bookfinder.com for $350. Personally, I'd
rather have the cookie recipe and $100 in change (one
old man's rant--the Veatch book to me--is another man's
freedom fighter). Not enough people thought the book
was worth even the cover price to keep it in print.
Yale, I am sure, has no intention of reprinting it.

The transaction costs for what is of little or no
economic value are too great. You have to find the
current copyright holder, who may not bother to
respond, or say no, or charge $250. The costs being too
great, the Coase theorem, which says it doesn't matter
who owns the copyright in the *absence* of these
transaction costs, does not hold. It does matter, and
it matters more than just the political transfer of a
rights from one pocket (the public with its stake in
having works enter the *public* domain) into another
(the publishers). It means that the "Progress of
Science and useful Arts" is being hampered and not
promoted, since books that would have are not getting a
second life.

What to do? Let anyone reprint an old book, old meaning
twenty years, provided he determines that the book is
no longer in print. If the book is younger than that
and not in print, he must conduct a "due diligence"
search to track down the current copyright owners. He
must ask the publisher, and the publisher must respond.
If the publisher has vanished, he must make a
"diligent" effort to find out who bought out the
publisher. He must not have to pay $200 to have someone
else do the search for him. If the book is younger than
twenty years and the copyright holder says no or wants
$250 and that's too much, it's just too bad. Our would-
be reprinter has to wait out the twenty years to see if
the book is still in print. And in print means selling
a certain number of copies, not just being printable on
demand for an outrageous sum. (We'd better get moving
here, before on-demand publishers start hiring
lobbyists.)

Finally, in the case of free-lance articles in
magazines and newspapers, I'd allow the editor to keep
the article on the website if he fails to track down
the author after a diligent search, after five years.
We've all got to keep moving. I might prefer that all
newspaper articles enter the public domain after ten
years, but that won't happen. Publishers are indeed too
organized, but they have transaction costs, too, and
should be allowed to keep free-lance articles on their
sites.

Lot's of controversy here: I myself don't want anyone
using the copyright laws to keep embarrassing things
out of the public domain. (I can't decide about J.D.
Salinger's letters.) Information does want to be free,
but it also has to be paid for, which is why there is a
copyright law in the first place. We all know how
organized publishers are, but academics and others are
getting organized too. The converse of the Coase
theorem--in the *presence* of heavy transaction costs,
it matters greatly how the copyrights are drawn up--
makes the case for letting low value books go back into
the public domain cheaply.

----------------------
Frank Forman is an economist at the U.S. Department of
Education, is speaking on his own, and is the author of
_The Metaphysics of Liberty_ (Dordrecht: Kluwer
Academic, 1989).

Allen

unread,

Apr 28, 2005, 12:47:33 PM4/28/05

to

Premise Checker wrote:
<snip>

> I'm thinking of suggesting re-registration of a copyright every five
> years for $100, after an initial period of 20 years. My reasoning is that a
> decision to reprint an old work is based on profit but that the
> projected profit will generally have to be thousands of dollars or not
> at all. $100 is just noise in the estimate. (This is what an economist
> sees routinely, but not everyone else.) $100 every five years is enough
> that a copyright holder will not routinely re-register everything, as
> Yale University Press apparently did after the 28-year expiry date. (See
> my piece below.)

This seems like a reasonable approach.

There are other bothersome issues in intellectual property. Consider
the ubiquitous JPEG file format used by almost everyone at some time or
other in graphics work. A company in Austin bought another company many
years ago, and later a consultant discovered a patent in the property of
that bought company that applied in some degree to the JPEG format.
They started demanding royalties from users of JPEG and have extracted
huge amounts of cash. I think that if any patent is violated openly and
publicly for some years without contest, it should be declared in the
public domain--just like the Bayer trademark of "Aspirin" a century ago.
"Use it or lose it" should apply here.
Allen

Matthew Fields

unread,

Apr 28, 2005, 1:26:27 PM4/28/05

to

In article <Fs8ce.31494$h6.1...@tornado.texas.rr.com>,

Allen <al...@nothere.net> wrote:
>
>
>Premise Checker wrote:
><snip>
>
>> I'm thinking of suggesting re-registration of a copyright every five
>> years for $100, after an initial period of 20 years. My reasoning is that a
>> decision to reprint an old work is based on profit but that the
>> projected profit will generally have to be thousands of dollars or not
>> at all. $100 is just noise in the estimate. (This is what an economist
>> sees routinely, but not everyone else.) $100 every five years is enough
>> that a copyright holder will not routinely re-register everything, as
>> Yale University Press apparently did after the 28-year expiry date. (See
>> my piece below.)
>
>This seems like a reasonable approach.

So you would begrudge e.g. Bartok his attempt to leave something--anything--
to his heirs.

>There are other bothersome issues in intellectual property. Consider
>the ubiquitous JPEG file format used by almost everyone at some time or
>other in graphics work. A company in Austin bought another company many
>years ago, and later a consultant discovered a patent in the property of
>that bought company that applied in some degree to the JPEG format.
>They started demanding royalties from users of JPEG and have extracted
>huge amounts of cash. I think that if any patent is violated openly and
>publicly for some years without contest, it should be declared in the
>public domain--just like the Bayer trademark of "Aspirin" a century ago.
> "Use it or lose it" should apply here.
>Allen

No. GIF. GIF includes technology patented by Compuserve. JPEG is a format
created by the Joint Photographer's Engineering Group and uses public-domain
technology throughout.

--
Matthew H. Fields http://personal.www.umich.edu/~fields
Music: Splendor in Sound
To be great, do things better and better. Don't wait for talent: no such thing.
Brights have a naturalistic world-view. http://www.the-brights.net/

Allen

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Matthew Fields

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Apr 29, 2005, 11:46:52 AM4/29/05

to

In article <42717F...@worldnet.att.net>,

USA federal law, same as international treaty, provides what you might
call "common-law" protection for works of creativity as soon as they
are first recorded in some fixed medium, without requiring any
paperwork or fees.

Peter T. Daniels

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Apr 29, 2005, 5:14:37 PM4/29/05

to

Matthew Fields wrote:
>
> In article <42717F...@worldnet.att.net>,
> Peter T. Daniels <gram...@worldnet.att.net> wrote:
> >I still don't see how there can be such a thing as "state common-law
> >copyright protection," given that copyrights and patents are some of the
> >few things the the Constitution explicitly puts in the Federal purview.
> >
> >I hope SCOTUS gets this soon.
> >--
> >Peter T. Daniels gram...@att.net
>
> USA federal law, same as international treaty, provides what you might
> call "common-law" protection for works of creativity as soon as they
> are first recorded in some fixed medium, without requiring any
> paperwork or fees.

But then enacted law sets limits on those protections.

Written-down law supersedes common law where they conflict (which is why
the Brits really ought to get around to providing themselves a
constitution, already).

Michael Haslam

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Apr 29, 2005, 5:25:34 PM4/29/05

to

Peter T. Daniels <gram...@worldnet.att.net> wrote:
>
> Written-down law supersedes common law where they conflict (which is why
> the Brits really ought to get around to providing themselves a
> constitution, already).

We won't get that till we get a representative government. Don't hold
your breath.
--
MJHaslam
Remove accidentals to obtain correct e-address
"Can't you show a little restraint?" - Dr. David Tholen

Matthew Fields

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Apr 29, 2005, 5:39:12 PM4/29/05

to

In article <4272A3...@worldnet.att.net>,

Peter T. Daniels <gram...@worldnet.att.net> wrote:
>Matthew Fields wrote:
>>
>> In article <42717F...@worldnet.att.net>,
>> Peter T. Daniels <gram...@worldnet.att.net> wrote:
>> >I still don't see how there can be such a thing as "state common-law
>> >copyright protection," given that copyrights and patents are some of the
>> >few things the the Constitution explicitly puts in the Federal purview.
>> >
>> >I hope SCOTUS gets this soon.
>> >--
>> >Peter T. Daniels gram...@att.net
>>
>> USA federal law, same as international treaty, provides what you might
>> call "common-law" protection for works of creativity as soon as they
>> are first recorded in some fixed medium, without requiring any
>> paperwork or fees.
>
>But then enacted law sets limits on those protections.

It's "common-law" only in the sense that it requires no formal
legalistic action on the part of the creator. But it's an explicit
part of Title 17 of the US Code (as well as Berne 1978 Rat.1988 and
WIPO).

>Written-down law supersedes common law where they conflict (which is why
>the Brits really ought to get around to providing themselves a
>constitution, already).
>--
>Peter T. Daniels gram...@att.net

Michael Haslam

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Apr 29, 2005, 5:53:43 PM4/29/05

to

Owen Hartnett <ow...@xids.xnet> wrote:
>
> I've been saying for years that *all* software patents should be
> declared null and void and no new ones issued.

So why would anyone want to develop software? Some music notation
software has been developed in universities and other non-profit
environments but the big players have been produced by capitalist
ventures.

Peter T. Daniels

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Apr 29, 2005, 6:53:39 PM4/29/05

to

Michael Haslam wrote:
>
> Peter T. Daniels <gram...@worldnet.att.net> wrote:
> >
> > Written-down law supersedes common law where they conflict (which is why
> > the Brits really ought to get around to providing themselves a
> > constitution, already).
>
> We won't get that till we get a representative government. Don't hold
> your breath.

But -- but -- you vote for one every five years max!!

Peter T. Daniels

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Apr 29, 2005, 6:54:57 PM4/29/05

to

Matthew Fields wrote:
>
> In article <4272A3...@worldnet.att.net>,
> Peter T. Daniels <gram...@worldnet.att.net> wrote:
> >Matthew Fields wrote:
> >>
> >> In article <42717F...@worldnet.att.net>,
> >> Peter T. Daniels <gram...@worldnet.att.net> wrote:
> >> >I still don't see how there can be such a thing as "state common-law
> >> >copyright protection," given that copyrights and patents are some of the
> >> >few things the the Constitution explicitly puts in the Federal purview.
> >> >
> >> >I hope SCOTUS gets this soon.
> >> >--
> >> >Peter T. Daniels gram...@att.net
> >>
> >> USA federal law, same as international treaty, provides what you might
> >> call "common-law" protection for works of creativity as soon as they
> >> are first recorded in some fixed medium, without requiring any
> >> paperwork or fees.
> >
> >But then enacted law sets limits on those protections.
>
> It's "common-law" only in the sense that it requires no formal
> legalistic action on the part of the creator. But it's an explicit
> part of Title 17 of the US Code (as well as Berne 1978 Rat.1988 and
> WIPO).

And Federal law supersedes (let's say trumps) state law, which is what
bothered me in the first place about the decision!

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Apr 30, 2005, 3:58:09 PM4/30/05

to

First I meant more than 50% of the votes cast, which, when there are
more than several parties in a firstpastthepost system is almost
impossible with the resulty that most people have voted for a party that
doesn't form the government.

Second, without checking the stats I can't be sure but I think more than
a few British general elections have been won by a party that has
secured fewer votes (but more seats) than the party that came second (by
seats).

In some forms of Proportional Representation each voter can, by a system
of first, second, third etc. preferences feel that their vote has
counted towards the final result. A system such as this was used to
elect the Burgesses (MPs) for the Universities of Oxford and Cambridge
(electorates comprised of all MAs of the universities) until the seats
were abolished in the 1945 Representation of the People Act.

alanwa...@aol.com

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Apr 30, 2005, 4:27:11 PM4/30/05

to

If pure PR had been used in the UK in 1997 when Mr Blair was first
elected the Liberal Democrat party would have had 106 seats, not the 46
they ended up with. They polled 16 per cent of the votes but obtained
only 10 per cent of the seats.

I think it was similar in 2001. I suspect it will be even more marked
in next week's General Election in Britain.

A form of PR has been used in the elections for the devolution
(separation) of Wales and Scotland and Northern Ireland and even for
the Mayor of London, I think.

In 1997 Mr Blair promised a national referendum on the issue of PR
(which I believe widely used in Europe) but for some reason which
eludes me this referendum has never taken place.

The only party who espouse PR in the UK are the Liberal Democrats, so
far as I know.

I am in a curious situation. I am an Irish citizen but because I have
residency in the UK I am entitled to vote in the UK election (as well
as Republic of Ireland elections, of course, as a national ex-pat). I
have not decided whether I am actually going to bother next week but in
the area where I live voting anything other than Conservative will make
no difference to the result.

Kind regards,
Alan M. Watkins

Peter T. Daniels

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Apr 30, 2005, 5:01:25 PM4/30/05

to

I thought you're a resident of Prague.

The UK allows non-citizen residents to vote in its elections?? Wait'll
Dumbya hears about that!

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May 4, 2005, 7:34:33 AM5/4/05

to

Matthew,

It is clear that you have not an independent business as a software writer.

A product like Windows nowadays will be covered by hundreds or thousands of
patents. And they are all about tiny little things. Like the form of an icon
or the order of a few things. There is nothing really innovative about them.
Anyone who would have to design a similar thing would come up with similar
solutions.

But the patent office accepts everything and even doesn't blink when it is
formulated very broad.

In our system of justice someone is not guilty unless he is proven to be
guilty. In patents it is the other way around. You have to fight (and spend
large amounts of money) to prove that patents that are obviously worthless
are indead worthless.

If you are making administrative software you can often work around this
because there is a lot old software around that you can point to as previous
work. But if you are doing something innovative you are out of luck.

Patents are not the way to protect protocols and file formats. If you
believe that they should be protected, it should be done by copyright.

Wim

"Matthew Fields" <sp...@uce.gov> schreef in bericht
news:nNXce.1159$II....@news.itd.umich.edu...

Matthew Vaughan

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May 4, 2005, 9:56:17 PM5/4/05

to

"Premise Checker" <che...@panix.com> wrote in message
news:Pine.NEB.4.62.05...@panix1.panix.com...
>
> I'm thinking of suggesting re-registration of a copyright every five years
> for $100, after an initial period of 20 years. My reasoning is that a
> decision to reprint an old work is based on profit but that the projected
> profit will generally have to be thousands of dollars or not at all. $100
> is just noise in the estimate. (This is what an economist sees routinely,
> but not everyone else.) $100 every five years is enough that a copyright
> holder will not routinely re-register everything, as Yale University Press
> apparently did after the 28-year expiry date. (See my piece below.)
>
> Now that pressure groups, university and others, are forming to get works
> into the public domain, the chances for a legislative compromise are
> definitely growing. But we need reasonable and realistic figures.
>
> There are many issues to be worked out. I think an entire album gets
> copyrighted all at once, and so does a newspaper. But should a paper have
> to pay $100 x 365 to renew a year's worth? Papers sell specific articles
> for a price, but I very much doubt that any make $36,500 off any one year
> of back articles. And certain groups, like Alcoholics Anonymous, make
> money off their pamphlets in toto but not individually.
>
> I remind you also of books being available in print-on-demand. It's a way
> of keeping them "in print." This is very much the case with online music.
>
> We should also think about anticipating newer technologies in making
> legislative proposals.
>
> One good feature about requiring periodic re-registration: if a work is
> not re-registered, a copyright owner cannot come out of the woodworks and
> sue, a problem I brought up in my piece.
>
> Of course, the Capitol vs. Naxos suit is largely over turf and the
> escalation of the contests of wills in typical mammalian fashion than it
> is over money.
>
> If we can't win in the legislature, a philanthropist can simply buy any
> copyrights, along with a promise not to press any claims in the future. I
> can't imagine Capitol valuing EMI classical 78s for more than $100,000,
> which may be more than they have spent in litigation already.
>
> Or the recordings can be hosted on a site in a country where the
> copyright has definitely expired and the tracks sold online. This may be
> criminal but not enforceable. I wonder why there is no foreign Napster,
> though. I may have missed something.
>
> Dollar estimates are what I'm looking for now, as well as always
> corrections to my bad logic.

One solution that I heard suggested some years back, that I've always very
much liked, would work like this:

After expiration of the initial, automatic copyright period, the copyright
holder could declare a self-assessed value for their work (which they could
periodically revise if desired, though with limitations to prevent abuse).
Thenceforth, as long as they wanted to maintain the copyright (through its
maximum allowed life), they would pay an annual fee of some small percent
(say, 1%) of that declared value.

The flip side that allows this to work is that anyone else could come along
and pay the full amount of the declared value to the copyright holder (via
the Copyright Office; the holder would not be able to refuse the offer), at
which time, the work would go into the public domain. (It would NOT become
the property of the person or organization that bought the copyright out. If
someone wanted to buy the copyright outright and still maintain it, they'd
need to negotiate directly with the holder as they would today, then they
would become the ones to determine its assessed value, and take over paying
the annual fee.)

It would be up to the copyright holder to determine an appropriate declared
value that works for them and for that particular work. If they
over-estimate, they pay more fees than they might have needed to, and if
they underestimate, it's more likely someone else could buy the work into
the public domain. But even if the latter happens, they can still publish
the work (with the cachet of being the original and most official
publisher), and in addition, they do get paid cash equal to the assessed
value of the work. I expect that for many copyright holders, they could end
up making more money under such a system than they are today.

Such a system would also likely do a far better job of fulfilling the
original aims of copyright in the US: to encourage the creation and
dissemination of new ideas.

Matthew Vaughan

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May 4, 2005, 9:56:17 PM5/4/05

to

"Matthew Fields" <sp...@uce.gov> wrote in message
news:uzPce.1156$II...@news.itd.umich.edu...

> In article <300420051302470105%ow...@xids.xnet>,
> Owen Hartnett <ow...@xids.xnet> wrote:
>>
>>Not too many years ago, you couldn't patent software, on the concept
>>that an idea can't be patented, only a process. The US Patent office,
>>in an effort to collect more revenue, threw wide the doors to software,
>>even though they were ill equipped to judge what was an obvious
>>conclusion to an innovative idea. This gave us patents on overlapping
>>windows, on the XOR process of animating screen arrows, and the current
>>flaps with GIF files, now JPEGs and RSA encription. The net effect is
>>companies hoarding patents, never bringing them to court to be tested,
>>but trading them off with other companies, shutting out the little guy
>>and competition, and strangling innovation, particularly in fields like
>>printing and publishing, where almost everything is patented.
>

> Frankly, I think the whole litigatious business is the result of
> widspread piracy, and I think where it's headed is towards replacing
> goods with services. Application service is gradually growing as
> sales of private licenses dry up. Similarly, in music, concerts
> are poised to make a comeback as the market for recordings dries up.
>
> Lots of people scream of strangling innovation, but the workforce of
> full-time innovators is not shrinking.

Sure it has. Did you not notice that the dot.com bust neatly coincided with
companies starting to exert their intellectual property rights? That was the
end of the party, and a LOT of creative people lost their jobs. It may not
have been the only reason, but I'm certain it's played a large part.

Now, the truly small innovators can barely exist any more: you need serious
financial backing, because you need strong legal represenation from patent
attorneys to do patent searches, file patents of your own (defensively, if
nothing else), and negotiate royalty payments. If anything you do is even
slightly innovative and becomes successful, you can bet there will be dozens
of patents from various companies it will be alleged to infringe. Note that
almost always, none of those companies have done anything interesting, if
anything, with those patents (or even very similar to what the new company
is doing, usually), but they still "own" the idea. This, to me, is a
nauseous concept, and directly contradicts the entire justification for
intellectual property spelled out in the US Constitution - a necessary evil
in order to promote the broad and rapid spread of new ideas. (Published
patents were originally intended to be like blueprints so that others could
duplicate the innovations; now, they are purposefuly obfuscated into
meaninglessness. The original inventor often can't even recognize their own
invention from the final patent, and you certainly couldn't use most of them
to help you build something or even come up with a new idea.)

Matthew Vaughan

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May 4, 2005, 9:56:17 PM5/4/05

to

"Matthew Fields" <sp...@uce.gov> wrote in message

news:nNXce.1159$II....@news.itd.umich.edu...

> In article <300420051832337374%ow...@xids.xnet>,
> Owen Hartnett <ow...@xids.xnet> wrote:
>>In article <uzPce.1156$II...@news.itd.umich.edu>, Matthew Fields
>><sp...@uce.gov> wrote:
>>
>>>
>>> Lots of people scream of strangling innovation, but the workforce of
>>> full-time innovators is not shrinking.
>>
>>The guy who invents something really innovative, then trips over a
>>patent by Adobe or IBM or Microsoft (who own all the patents), then
>>realizes he faces a big lawsuit and or payment due, will be so bogged
>>down in the legal process that his innovation days are soon over.
>>
>>-Owen, once peripherally involved in a software patent deal, which
>>killed the project I worked on for 2 years.
>
> Ahhh, so you invented Microsoft Windows and tripped over the patent.
> I don't think so. Creating middleware for linking up pieces of other
> people's things and then failing to get permission to redistribute
> those other people's things is not particularly innovative--Microsoft
> does it all the time! :)

You clearly don't understand what is patented in terms of software or the
internet. By now, pretty much anything you could possibly do with a computer
is covered by a number of overly-broad patents that should never have been
issued (becuase they are usually obvious to a computer scientist, often have
prior art, and sometimes are so broad or vague as to be all-encompasing).
But they are extraordinarly difficult to challenge, let alone overturn.

This wasn't a problem when the USPTO was run from general funds. But now it
is largely funded by user fees - the more patents they grant, the more money
they get.

Matthew Fields

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May 4, 2005, 10:16:11 PM5/4/05

to

In article <53fee.575$T3....@typhoon.sonic.net>,

The USPTO still doesn't make law, it only registers claims. What happens
in the courts is what matters. I say this based on the fact that there are
still multiple patents for perpetual motion machines on the books, plus
patents for such outright frauds as the Counterfeit Detector Pen (it's
just iodine, it'll react with any dollar that has been spray-starched
and call it "bad" but it'll call "good" any 100 dollar bill printed on
25 cents worth of bond paper--or even some kinds of newsprint. The USPTO
is not equipped to do anything but register claims, same as the Register
of Copyrights.

Message has been deleted

Matthew Vaughan

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May 8, 2005, 11:20:21 PM5/8/05

to

"Matthew Fields" <sp...@uce.gov> wrote in message

news:Llfee.1247$II...@news.itd.umich.edu...

> The USPTO still doesn't make law, it only registers claims. What happens
> in the courts is what matters. I say this based on the fact that there are
> still multiple patents for perpetual motion machines on the books, plus
> patents for such outright frauds as the Counterfeit Detector Pen (it's
> just iodine, it'll react with any dollar that has been spray-starched
> and call it "bad" but it'll call "good" any 100 dollar bill printed on
> 25 cents worth of bond paper--or even some kinds of newsprint. The USPTO
> is not equipped to do anything but register claims, same as the Register
> of Copyrights.

There is a big difference: the USPTO has "examiners" who are experts in
various field that are supposed to examine the validity of claims, primarily
relating to whether or not they are original, before a patent can be
approved (that's why you see the distinction when a patent is "pending"
approval). Of course there is going to be variation in this, and they often
fall down on the job, but it is entirely different from copyright in that
regard. Software is an area in which they are especially weak in the quality
and quantity of examiners. (And, as already stated, an area where they
didn't used to grant patents at all. "Business use" patents are another new
area, in which if a business comes up with a clever way of doing something,
even if it doesn't require a particular mechanism, they can patent it and
then anyone else smart enough to run their business in a similarly-efficient
matter has to pay them royalties. Neat, huh?)

Matthew Fields

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May 9, 2005, 10:24:09 AM5/9/05

to

In article <VFAfe.1119$T3....@typhoon.sonic.net>,

Seems to me that the laws of physics are areas in which they are
demonstrably weak.

Richard Schultz

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May 9, 2005, 12:05:20 PM5/9/05

to

In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:

:>There is a big difference: the USPTO has "examiners" who are experts in

:>various field that are supposed to examine the validity of claims

: Seems to me that the laws of physics are areas in which they are
: demonstrably weak.

Just because they awarded a patent at on at least one occasion for a
perpetual motion machine? Maybe they know something that we lesser
folk don't. . .

-----
Richard Schultz sch...@mail.biu.ac.il
Department of Chemistry, Bar-Ilan University, Ramat-Gan, Israel
Opinions expressed are mine alone, and not those of Bar-Ilan University
-----
"Logic is a wreath of pretty flowers which smell bad."

Matthew Fields

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May 9, 2005, 12:16:03 PM5/9/05

to

In article <d5o1o0$b3j$2...@news.iucc.ac.il>,

Richard Schultz <sch...@mail.biu.ack.il> wrote:
>In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
>: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
>: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:
>
>:>There is a big difference: the USPTO has "examiners" who are experts in
>:>various field that are supposed to examine the validity of claims
>
>: Seems to me that the laws of physics are areas in which they are
>: demonstrably weak.
>
>Just because they awarded a patent at on at least one occasion for a
>perpetual motion machine? Maybe they know something that we lesser
>folk don't. . .

More like several times per year for decades, Richard.

And if they "know something that we lesser folk don't", where *are*
all these perpetual motion machines and why aren't they in use and
why has none of their inventors accepted the Randi Challenge?

>-----
>Richard Schultz sch...@mail.biu.ac.il
>Department of Chemistry, Bar-Ilan University, Ramat-Gan, Israel
>Opinions expressed are mine alone, and not those of Bar-Ilan University
>-----
>"Logic is a wreath of pretty flowers which smell bad."

Message has been deleted

Matthew Fields

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May 9, 2005, 1:14:47 PM5/9/05

to

In article <090520051305333726%ow...@xids.xnet>,
Owen Hartnett <ow...@xids.xnet> wrote:
>In article <71Mfe.1333$II....@news.itd.umich.edu>, Matthew Fields

><sp...@uce.gov> wrote:
>
>> In article <d5o1o0$b3j$2...@news.iucc.ac.il>,
>> Richard Schultz <sch...@mail.biu.ack.il> wrote:
>> >In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
>> >: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
>> >: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:
>> >
>> >:>There is a big difference: the USPTO has "examiners" who are experts in
>> >:>various field that are supposed to examine the validity of claims
>> >
>> >: Seems to me that the laws of physics are areas in which they are
>> >: demonstrably weak.
>> >
>> >Just because they awarded a patent at on at least one occasion for a
>> >perpetual motion machine? Maybe they know something that we lesser
>> >folk don't. . .
>>
>> More like several times per year for decades, Richard.
>>
>> And if they "know something that we lesser folk don't", where *are*
>> all these perpetual motion machines and why aren't they in use and
>> why has none of their inventors accepted the Randi Challenge?
>

>What? Don't you have one yet?
>
>Mine's connected to the TiVo and the clothes dryer. It buzzes when
>"Desperate Housewives" comes on.

That's called "A four-year-old", and though it may seem a bundle
of free energy, it nonetheless creates adequate quantities of
entropy to fit conventional physics.

John W. Kennedy

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May 9, 2005, 2:11:42 PM5/9/05

to

Matthew Fields wrote:
> In article <d5o1o0$b3j$2...@news.iucc.ac.il>,
> Richard Schultz <sch...@mail.biu.ack.il> wrote:
>
>>In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
>>: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
>>: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:
>>
>>:>There is a big difference: the USPTO has "examiners" who are experts in
>>:>various field that are supposed to examine the validity of claims
>>
>>: Seems to me that the laws of physics are areas in which they are
>>: demonstrably weak.
>>
>>Just because they awarded a patent at on at least one occasion for a
>>perpetual motion machine? Maybe they know something that we lesser
>>folk don't. . .
>
>
> More like several times per year for decades, Richard.
>
> And if they "know something that we lesser folk don't", where *are*
> all these perpetual motion machines and why aren't they in use and
> why has none of their inventors accepted the Randi Challenge?

Especially since, the last I heard, the USPTO still required a working
model for perpetual motion.

--
John W. Kennedy
"You can, if you wish, class all science-fiction together; but it is
about as perceptive as classing the works of Ballantyne, Conrad and W.
W. Jacobs together as the 'sea-story' and then criticizing _that_."
-- C. S. Lewis. "An Experiment in Criticism"

Iain Neill Reid

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May 9, 2005, 2:23:21 PM5/9/05

to

In article <d5o1o0$b3j$2...@news.iucc.ac.il> sch...@mail.biu.ack.il (Richard Schultz) writes:
>In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
>: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
>: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:
>
>:>There is a big difference: the USPTO has "examiners" who are experts in
>:>various field that are supposed to examine the validity of claims
>
>: Seems to me that the laws of physics are areas in which they are
>: demonstrably weak.
>
>Just because they awarded a patent at on at least one occasion for a
>perpetual motion machine? Maybe they know something that we lesser
>folk don't. . .

I believe that their task is to determine whether the invention in
question is original - not whether it actually works.

Neill Reid

Matthew Fields

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May 9, 2005, 3:12:31 PM5/9/05

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In article <7KNfe.3$yx...@fe08.lga>,

John W. Kennedy <jwk...@attglobal.net> wrote:
>Matthew Fields wrote:
>> In article <d5o1o0$b3j$2...@news.iucc.ac.il>,
>> Richard Schultz <sch...@mail.biu.ack.il> wrote:
>>
>>>In rec.music.classical Matthew Fields <sp...@uce.gov> wrote:
>>>: In article <VFAfe.1119$T3....@typhoon.sonic.net>,
>>>: Matthew Vaughan <mat...@NOSPAM.hotmail.com> wrote:
>>>
>>>:>There is a big difference: the USPTO has "examiners" who are experts in
>>>:>various field that are supposed to examine the validity of claims
>>>
>>>: Seems to me that the laws of physics are areas in which they are
>>>: demonstrably weak.
>>>
>>>Just because they awarded a patent at on at least one occasion for a
>>>perpetual motion machine? Maybe they know something that we lesser
>>>folk don't. . .
>>
>>
>> More like several times per year for decades, Richard.
>>
>> And if they "know something that we lesser folk don't", where *are*
>> all these perpetual motion machines and why aren't they in use and
>> why has none of their inventors accepted the Randi Challenge?
>
>Especially since, the last I heard, the USPTO still required a working
>model for perpetual motion.

http://www.google.com/u/JREF?q=patent+perpetual

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May 10, 2005, 7:39:11 AM5/10/05

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In article <d5pda5$t1l$2...@news.iucc.ac.il>,

Richard Schultz <sch...@mail.biu.ack.il> wrote:
>In rec.music.classical.recordings Iain Neill Reid <i...@morales.stsci.edu> wrote:
>
>:>: Seems to me that the laws of physics are areas in which they are
>:>: demonstrably weak.
>:>
>:>Just because they awarded a patent at on at least one occasion for a
>:>perpetual motion machine? Maybe they know something that we lesser
>:>folk don't. . .
>:
>: I believe that their task is to determine whether the invention in
>: question is original - not whether it actually works.
>
>In theory, the one exception to the rule is that a perpetual motion machine
>will only receive a patent if the inventor produces a working model.
>In practice, the USPTO has granted patents to perpetual motion machines,
>the examiners apparently being unaware that that was what they were doing.

But the USPTO is not in the business of "working models". Only "prior art".

Iain Neill Reid

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May 10, 2005, 9:54:40 AM5/10/05

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In article <d5pda5$t1l$2...@news.iucc.ac.il> sch...@mail.biu.ack.il (Richard Schultz) writes:
>In rec.music.classical.recordings Iain Neill Reid <i...@morales.stsci.edu> wrote:
>
>:>: Seems to me that the laws of physics are areas in which they are
>:>: demonstrably weak.
>:>
>:>Just because they awarded a patent at on at least one occasion for a
>:>perpetual motion machine? Maybe they know something that we lesser
>:>folk don't. . .
>:
>: I believe that their task is to determine whether the invention in
>: question is original - not whether it actually works.
>
>In theory, the one exception to the rule is that a perpetual motion machine
>will only receive a patent if the inventor produces a working model.
>In practice, the USPTO has granted patents to perpetual motion machines,
>the examiners apparently being unaware that that was what they were doing.

This sounds like an urban legend - a quick perusal of the laws and
regulations for patent application reveals that "The Director may
require the applicant to supply a model of convenient size to exhibit
advantageously the several parts of his invention" (U.S.C. 114), but
a search of the document finds no mention of the word "perpetual".

see

http://www.uspto.gov/main/patents.htm

Neill Reid

mr_r...@yahoo.com

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May 11, 2005, 12:33:19 PM5/11/05

to

Perpetual motion (machines) are not specifically mentioned in US patent
law; but they do show up in a few places in the patent office's
Manual of Patent Examining Procedure, including the following sections.

608.03 Models, Exhibits, Specimens states:

Models or exhibits are generally not
admitted as part of an application or patent
unless the requirements of 37 CFR 1.91 are
satisfied.

With the exception of cases involving
perpetual motion, a model is not ordinarily
required by the Office to demonstrate the
operability of a device. If operability of a
device is questioned, the applicant must
establish it to the satisfaction of the
examiner, but he or she may choose his or
her own way of so doing.

706.03(a) Rejections Under 35 U.S.C. 101, states under "Utility":

A rejection on the ground of lack of
utility includes the more specific grounds
of inoperativeness, involving perpetual
motion, frivolous, fraudulent, and
against public policy. The statutory basis
for this rejection is 35 U.S.C. 101. See
MPEP § 2107 for guidelines governing
rejections for lack of utility. See MPEP §
2107.01 - § 2107.03 for legal precedent
governing the utility requirement.

There is an unintended irony in section 608.03. Suppose that I somehow
conquer the laws of thermodynamics and make a true perpetual motion
machine that continuously produces energy from nothing. Then I apply
for a patent. The examiner requests a working model. I bring in my
working model and turn it on. It works! It produces energy from
nothing!

The examiner is impressed. For 10 minutes it lights a light bulb (or
something similar). The examiner says - "That's nice, it worked
for 10 minutes, but maybe there's a battery or something inside.
Leave it here, running for a while."

I call back 10 days later. The examiner tells me - "Yes, it's
still working. But it's only 10 days. Maybe there's a solar cell
involved. I'll put it in a dark closet for a while."

I call back 100 days later. The examiner tells me - "Yes, it's
still working. But it's only 100 days. Maybe there's a
radioactive source inside. Let's see if it keeps working for a
while."

I call back 1000 days later. The examiner tells me - "Yes, it's
still working. But you're claiming a perpetual motion machine. Call
me back when a perpetuity has elapsed."

Richard Tanzer

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