I’m reading through the transcript of the Teleflex case, and I think the level of hostility shown by the justices toward Mr Goldstein (arguing for the status quo) is remarkable:
MR. GOLDSTEIN: No matter what one thinks about the differential between Federal Circuit law today and Federal Circuit law a year ago or two years ago, there is a quite considerable cost by articulating a desire to head off in a new direction, because there will be dramatic instability in the patent system, the incalculable investments that underlie current patents. There is nothing fundamentally not functional about how the Federal Circuit is approaching this question. It has had decades to look at this to try and elaborate a standard. This court in cases like Sakraida and –
JUSTICE BREYER: And it so quickly modified itself.
JUSTICE SCALIA: And in the last year or so, after we granted cert in this case after these decades of thinking about it, it suddenly decides to polish it up.
MR. GOLDSTEIN: Justice Scalia, if you actually believe that, then you just don’t believe the judges in the Federal Circuit because in each of these opinions they say quite explicitly we are not changing it.
JUSTICE ALITO: Would you dispute that in some of the earlier cases, like Dembiczak with the garbage bag that looks like a pumpkin, that this TSM test was applied in a way that seemed to ask for something quite explicit in the prior art?
Between this and the exchange I quoted last week, you’ve got three of the four reliably conservative justices beating up on the federal circuit. And the fourth justice–Justice Thomas–almost never asks questions during oral argument. It seems like the right-hand side of the court is unhappy with the way the federal circuit’s been doing things. And judging from Justice Breyer’s comments, I’m guessing the left-hand side is too.
My friend Kerry Howley has a fantastic piece on the bizarre state of the law regarding ownership of human body parts. Self-annointed “bioethicists” claim that we can’t give people the right to control what happens to their own body parts, because that could lead to a world in which body parts “become nothing more than chattel going to the highest bidder.”
And that would be bad because… well, it’s not clear why. Certainly, the research community hasn’t been shy about using their control over patients’ tissues to enrich themselves:
In the end, disputes of this kind always come back to John Moore’s million dollar spleen. Twenty years ago, UCLA School of Medicine Dr. David Golde told Moore his leukemia-ravaged spleen would have to go, and Moore agreed to have surgeons remove the organ. For years afterward, Moore would fly from his home in Seattle to UCLA, where Golde would check on his progress and take samples of sperm, blood, and bone marrow aspirate.
Unbeknownst to Moore, his supposedly trashed spleen was teeming with biomedical treasure. Golde derived a commercial cell line from the disembodied organ, and proceeded to patent it. Eventually, Moore became suspicious at the steady stream of vague release forms he was being asked to sign. He investigated, caught Golde, and sued. In 1990, a California court ruled that Moore had no proprietary right to the blood and tissue taken from his body. By that time, Golde had sold the patent for $2 million.
So apparently, it’s ethical to make large profits from human body parts, but only if the patient who provided the body parts doesn’t get a penny of it. Sounds ethical to me.
HONG KONG, December 5, 2006–The convergence of telecommunications and media is posing problem for communications regulators all over the world, and many of them swapped stories here about the best way to cope with rapid technological change.
Most government panelists participating in two morning sessions at the International Telecommunications Union’s Telecom World conference here agreed on the need for a unified communications authority.
But they differed after whether competition policy could prove adequate to dealing with issues of telecommunications and media. In other words, would the need for communications regulation fade over time?
Officials from France and Hong Kong are both in the midst of re-evaluating their existing regulatory structures, which include two separate agencies. In each case, one agency is charged with overseeing broadcasting, and the other agency oversees telephone communications.
It seems that the Technical Guidelines Development Committee has accepted the NIST recommendations against e-voting after all. As a compromise, the new guidelines apparently emphasize that existing voting machines are grandfathered in.
This strikes me as a reasonable compromise. Obviously, I’d like to see us scrap paperless voting machines for the 2008 election, but there is likely to be substantial political resistance to that idea. Since TGDC doesn’t have the authority to ban paperless voting in any event, the important thing is that they come out with a strong statement that machines without paper trails are insecure. That will give the good guys in individual states the ammunition they need to accelerate the process of phasing out insecure machines.
I want to put a bit of meat on the bones of my previous post about ads and content by sketching out a hypothetical future YouTube product that could make Google a big pile of money. This also relates to the discussion Jerry and I had about whether the Internet will kill broadcast TV.
People in the future are not going to want to watch TV at their desks. Couches will be as comfortable as they are today. So imagine Google sells a $99 “YouTube TV” set-top box that plugs into an ethernet jack and streams video from the Internet. It would probably look something like Apple’s forthcoming iTV set-top box.
You would have a YouTube account, and you’d have a variety of ways to select content that you want to watch. you could subscribe to a television show or video podcast (which will likely be one and the same), so that each week’s episode automatically appeared in your queue. As you were browsing the web at work, there’d be a little button at the bottom of every YouTube video (including embedded ones) allowing you to place a video in her queue for later viewing. The system might use collaborative filtering to suggest new programs you to watch, as TiVo does today. You might also give certain friends permission to add videos to your queue.
When you sat down on the couch and turned on your YouTube box, it would automatically start playing the first program in your queue. The remote would have three buttons that were green, yellow, and red. Pushing the yellow button would signal to the machine “this looks interesting but I don’t want to watch it now. That would put it back in the queue for viewing at a later time. The red button would say “This sucks. Never show it to me again.”
It is too early to say for sure but there are some encouraging signs that our public policymakers are finally starting to get the point went it comes to the sensibility (and constitutional futility) of trying to regulate video game content. Just yesterday, for example, lawmakers in the District of Columbia passed legislation that establishes a program to educate consumers about existing video game ratings and console-based controls. This represents a major shift away from the regulatory approach originally floated by incoming D.C. Mayor Adrian Fenty. While serving as a D.C. Councilman, Fenty introduced a bill that would have proposed the old regulatory combo of mandates and stiff fines on game retailers who didn’t enforce the city’s approved regulatory scheme.
But the new version of the bill, entitled the “Consumer Education on Video and Computer Games for Minors Act,” takes a very different approach. The bill requires the city to “Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain ago groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games.”
In a phrase, D.C.’s new approach is “education, not regulation.” And while some might object to the idea of government promoting education efforts about video game ratings or console controls, that approach is infinitely more sensible (and constitutionally permissible) than government censorship.
Matt Yglesias wonders how YouTube is going to turn a profit:
To actually turn all those viewers into money, you need to sell ads. But it’s hard to sell ads on YouTube. For one thing, lots of YouTube streams don’t even come through the YouTube site. For another thing, there are lots of other sites that also do video hosting, so if YouTube gets all ad-heavy, people may switch away to other services…
To me, at least, this is the real moral of the story. Peer-production of digital media probably will produce a fair quantity of awesome popular stuff lurking amidst the vast pool of dreck. And well-designed services will let the awesome stuff rise to the top and the dreck fade to the background, rendering those services awesome and popular. But–and here’s the rub–having something awesome and popular just may not prove to be especially lucrative. In the past, a popular television show or a popular album or a popular film or a popular distribution channel guaranteed you vast sums of money. In the future, that just may not be the case. The very most popular things will generate some income, enough to live off of and continue financing new projects, but not the sort of gigantic windfalls associated with 20th century media hits. And lots of other things–including reasonably popular ones–will only generate trivial levels of income. And they’ll continue to be made. Made by people who think its fun, or who derive some benefit from their work other than direct monetary income.
To some extent this is clearly true: it’s harder to monetize your content when there’s more competition. But I think Matt underestimates the profit-making potential of category-leading websites. Matt’s commenters correctly point out that you could have made the same argument about Google itself, which in 2000 was a fantastic search engine without a business model to speak of. Then they figured out how to make money on ads, and now they’re a publicly traded company worth a hundred billion dollars. This is quite correct, but I think there’s more to be said about why Google’s ads have been so lucrative.
According to today’s WSJ, Blue Note records (a subsidiary of EMI) will begin selling music in MP3 format via Yahoo. Hopefully this is a sign of things to come, but for now the plan is just for a couple of songs, including a single from Norah Jones’ new album. What’s amazing is that this hasn’t been done already. I’ve always been skeptical that no one at the record companies gets it. But the article explains,
The MP3 announcements highlight a growing internal debate at EMI and other music companies over the correct approach to maximizing the impact of digital sales. Throughout the music industry, executives at record labels who suggested using MP3s for promotions spent years butting heads with their corporate superiors. … Mr. Hochkeppel confirms that he and other Blue Note executives had to overcome what he called “general resistance” on the part of senior EMI executives. He says they were ultimately persuaded there was a need to try fresh approaches to digital sales.
What I fear now is that if this experiment with just a few songs isn’t wildly successful, the suits still won’t get it. They should think about it this way: They have licensing negotiations coming up with Steve Jobs. What a better bargaining chip than the promise of a music store competitor to iTunes that sells MP3s, which play on iPods?
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.