Owning jokes

In an essay entitled “Intellectual Property Norms in Stand-Up Comedy“, Professors Oliar and Sprigman of the University of Virginia present a study of how stand-up comedians have created a parallel system of protecting copyright based on social rather than legal norms. They also detail the differences that the emergence of these norms have made to the creative process. When jokes were held to be common property, comedians put less effort into individual jokes. Instead, comedians worked with short—often stolen—jokes and focused on creating performances that were tougher to duplicate. As the social system arose to protect their jokes, comedians turned to long-form routines, focusing on the text of the joke. The essay will be published in The Making and Unmaking of Intellectual Property from University of Chicago Press.

Naked Cowboy trademark dispute

It has been reported that the famous New York street musician Robert Burck, known as “The Naked Cowboy”, is suing rival busker Sandy Kane for trademark violation.   Burck claims that his look is trademarked and that Kane was “seeking to earn a living by appropriating his intellectual property for her own commercial benefit”.

Canada being bullied into copyright reform

There is an excellent article by Cory Doctorow on guardian.co.uk that highlights the problems with protecting digital locks and suggests that Canada is being bullied into the reforms by the United States. Doctorow points out that after wide public consultation regarding copyright reform the consensus was to “let us have protection for digital locks, but only if you’re breaking them in order to commit an act of actual copyright infringement”. Of course our government failed to heed the calls and has gone the other way in pursuing U.S. style protection for the digital locks themselves and we are left to wonder exactly whose interests are being protected.

Is the new copyright bill good for gamers?

An article by Danielle LaBossiere Parr, executive director of the Entertainment Software Association of Canada, appeared recently in the Calgary Herald. The article was titled “Why gamers should love copyright bill” and set about explaining why the new bill is good for gamers. Parr cites a “300 percent increase in the number of games illegally downloaded via Canadian ISP’s between 2007 and 2008″ as evidence that the Canadian government hasn’t been doing enough to protect creator’s rights. Insufficient protection, Parr says,  is tantamount to forcing creators to “give their works away for free”. It is argued that better protection allows for more innovation and risk taking among producers and ultimately to better products in the hands of consumers.

India argues that ACTA restricts developing economies

The Register reports that India recently submitted a document to the World Trade Organization which is critical of ACTA.  One of India’s main concerns is that the agreement has the potential to destabilize existing international agreements and damage the economies of developing nations. They also argue that, when it comes to intellectual property reform, ACTA “does not represent a reasonable or realistic response” and that such an agreement “has to emerge from a multilateral and transparent process”.

Rock Band/Gibson lawsuit settled

Networkworld.com is reporting that the lawsuit between Gibson and Harmonix, which was initiated in 2008, has been settled. Gibson was suing Harmonix for infringement of its virtual guitar patent in the popular Rock Band video game series. Gibson had already settled a suit with Activision, publisher of the Guitar Here series, last year regarding the same patent.

Google agrees to turn over captured Wifi data

Google CEO Eric Schmidt has announced that the company will be complying with demands that captured Wifi data be turned over to state agencies in Germany, France and Spain. The data has also been demanded by a US federal judge. This article discusses what Google did and why turning over the data is undesirable.

Technical Background

When you send data over any network, it is broken up into small packets. When it reaches the destination computer, the packets are reassembled into the original data. Before transmitting them by radio, a wireless network encapsulates these packets with information about the network (you can think of it like putting the data, or payload, in an envelope and writing the address on the outside). If the network has been configured to do so, the payload data is also encrypted. Receivers are able to pick up encapsulated packets from any network and intended for any computer, but normally they only care about packets addressed to them.

As Google’s Streetview cars drive around, they capture wireless data and read the envelope data. What was important to Google was one piece of information written on that envelope: the BSSID (broadcast service set identifier). For most wireless networks, the BSSID is a unique number assigned to the wireless access point by the manufacturer (the MAC address). Google maintains a database of these IDs and their locations using the car’s GPS. A computer or phone could then find its approximate location by simply scanning for nearby networks and querying this database.

Since they only needed the envelope data, Google should have been discarding the payload (the contents). Unfortunately, they did not do so. I won’t speculate about whether this was truly a mere oversight. The result is that Google ended saving the actual packets being transmitted over unencrypted networks; the payload data for encrypted networks would generally be unreadable. Depending on what the network users were doing at the time the Streetview car passed, this could include snippets of emails or web pages. It could include personal, even highly confidential, information. Of course, it could also just be pictures of cats.

Why turning the data over doesn’t make sense

Google has admitted that they captured the payload data and that it may contain sensitive personal information but they have not analyzed it and therefore don’t know precisely what information it contains. When Google first announced the problem, they said they intended to delete the data. That is precisely what they should do.

The reason stated by the European governments for why Google should hand over the data is that they wish to know precisely what Google was collecting. But we know what they collected. Google already admitted it: Wifi payload data potentially containing personal information such as email, web browsing, and even financial data. That admission should be enough. What data turns out to be on the hard drive is just a result of chance. It’s equally possible that not a single piece of sensitive information was collected or that sensitive information was collected about every person they drove past. From a regulatory perspective, the actual results of such random gathering shouldn’t be important. The question they should ask themselves is this: would Google’s conduct be any less serious if they luckily avoided capturing any sensitive data? The governments should instead be focusing on whether it was intentional, what policies Google had in place to prevent it, and what they will do in the future.

By asking Google to turn over the data instead of destroy it, the governments are just increasing the opportunities for the data to be compromised. The data will be disclosed to at least three government agencies and potentially to a number of contractors. It will have to be transported and stored in multiple locations. As the number of actors increases so do the odds that one will make a mistake. In addition, the very act of analyzing it completes the privacy invasion they are concerned about. As I’ve stated, the analysis will reveal nothing about Google, but it will potentially reveal a lot about their citizens. The report that is prepared will at least have statistics on the prevalence of unencrypted networks. It will also very likely disclose some of the browsing habits of citizens. While I’m sure that the report will not actually contain personal information, it will require the non-consensual processing of large amounts of it. This is precisely what privacy regulators are supposed to be discouraging.

No purpose is served by distributing the data any further. Any governments that wish to investigate Google on this manner should order that data destroyed and confine their investigations to Google’s privacy practices.

DOJ expanding Apple antitrust probe

The New York Post reports that the probe into Apple’s dealings with the music industry has expanded to other areas of their business. They cite sources in Hollywood who say that the DOJ has reached out to them for information on their dealings in movie offerings through the iTunes store. The DOJ has also expressed concern with the terms of the contract Apple’s third-party developers must accept.

Conservatives seeking allies in drafting of new copyright legislation

The Globe and Mail reports that the Conservatives are “actively looking to recruit allies across the Commons floor” to support and help shape the proposed copyright legislation. The bill is expected to be introduced later this week and reportedly will, among other things, make it a crime  to pick “digital locks” attached to media files. The article goes on to say that such changes are almost certain to be unpopular amongst most Canadians and that the real pressure to update the law comes from the U.S. and Europe who are dissatisfied with the current state of copyright law in Canada.

The problem with DCA

[By Patric Senson]

You would think that a potential cure for a wide range of cancers would have pharmaceutical companies lining up for the chance to get a piece of the action. But what happens when the drug in question is already out there on the market and freely available for use?

That’s the apparent story with Dichloroacetate (DCA). A study published this week in Science Translational Medicine, appears to show that DCA can at least slow down growth, if not stop growth of cancerous brain tumours. If this small study, which tested tumours from 49 patients, can be replicated, this may be a far less invasive approach to treating brain cancer than anything currently available.

The case for DCA has been building over the last few years. In 2007, the same team of researchers from the University of Alberta published a study looking at cancer cells in a test-tube and showed that growth was slowed when DCA was added. This prompted international interest in the drug, and prompted online sales of DCA, lucrative enough to cause some to sell fake DCA.

Yet all this interest has yet to generate the capital necessary to get full scale clinical trials of DCA as used for cancer underway. According to the CBC, the current work was largely funded by private donations, and that no large pharmaceutical was interested in getting behind the work. Apparently their feeling that they would be unable to patent a product scared them off. Without the backing of drug companies the work is unlikely to progress much further. The CBC story echoes the idea that lack of patentability limits commercial interest.

This lack of patentability and the resulting lack of commercial interest seems to support the underlying premise of why we need patent law. Patents are supposed to protect an innovator’s investment. By providing them with exclusive rights to sell the subject of their patent, they have enough time to recoup their costs and make a decent profit before others can get involved. But in this situation, a potentially valuable drug may never see the light of day, all because any pharmaceutical company thinking of becoming involved in testing DCA has no guarantee it will get back its investment.

Not that there aren’t some protections designed to encourage companies to invest in new drug development even when patenting isn’t an option. Rebecca Eisenberg’s article, “The Role of the FDA in Innovation Policy” (PDF), explains that the Food and Drug Administration in the United States gives a limited protection to companies that invest in R&D for products that cannot be patented. However, as she points out in her article, this does not prevent other companies from producing the drug for their own different uses. With a situation like that found with DCA this would immediately severely restrict any benefit a company could receive from its license. Cancers come in many different forms, and each one would require its own licensing process. For instance, the current tests have shown efficacy for a particular type of brain cancer. Nothing would stop another pharmaceutical company from sweeping in and sponsoring tests for lung or liver cancers. The return from each particular license would be very limited. Compare this to the benefit a patent would give. A patent could be much broader, since the owner could license the process of how the drug actually works, which seems to be common across cancers (based on the preliminary work). This would offer a much wider protection and a greater return on investment. Unfortunately patenting seems not to be an option for this drug.

This problem of licensing would be further compounded if off-label prescribing is also considered. When a drug like DCA is widely available, there is nothing to stop doctors from prescribing off-label. In theory if enough doctors did so, over time a body of evidence would build showing that DCA is effective for treating various cancers. While this might eventually lead to an effective treatment, gathering the data would be problematic, since there would be no controls on the ‘experiments,’ and doctors may be unwilling to give up information that they have been prescribing off-label. Again, a patent protecting the use would make this off-label prescription illegal.

But does that have to be the case that DCA could never have been patented? Comparing the story of DCA to AZT, a drug that was originally developed for treating cancer, there are some possible parallels. As laid out in the facts of Apotex Inc v. Wellcome Foundation Ltd., 2002 SCC 77, [2002] 4 S.C.R. 153, the drug was synthesized decades before it was finally patented and tested for treating HIV/AIDS.

Like AZT, DCA could have potentially passed most of the tests for patentability. The use was non-obvious and novel until the original study was published. In fact, when this study was published in 2007 it created a stir for its use in a way no one had previously anticipated. It passes the utility test, since both the 2007 and the current study together demonstrate a sound prediction of future usability. Again, we need look no further than the example of AZT, which in early level trials showed potential effectiveness against HIV, in the case of DCA, the mode of action against cancer cells is clearly established.

The failure for DCA would come today in terms of novelty. Too much time has passed since the original paper for a patent to be issued now. Why was it not patented back in 2007 when the original paper was published? The widespread availability of DCA was probably a factor, as discussed above. Also, the age of the drug seemed to be discouraging investment (see New Scientist).

If DCA, though, is not patentable , or if patentable, unlikely to be protectable, thanks to off-label prescribing, this raises an important policy consideration. DCA, if it works, could save thousands, if not millions of lives (whether DCA kills cancers other than brain cancer is not yet confirmed). Yet the formation of patent laws mean it is not eligible for the kind of strict protection it needs, and hence no one is willing to put forward the money for clinical trials. Without large-scale trials the drug won’t be able to receive approval from Health Canada, or, more importantly the FDA in the United States.

Not that DCA is a sure thing. For one, it’s known to be toxic in large doses. These small scale trials do not show whether doses for treatment of cancer would be small enough to be safe for consumption. The current desperate trends towards self-medication with DCA are very worrying, given the dangers of the drug. If for no reasons other than safety, we need good clinical trials of the compound.

This is a prime example of a time when governments should be willing to step in and run clinical trials themselves. Universities and hospitals have the infrastructure to perform safety and efficacy trials, all that is missing is the cash that usually comes from the drug companies. When public health is at risk, our governments should take an active interest in these issues, although in the past they have tended to maintain an arms-length position.

In the long run, DCA is not going to the last compound we see in this category of orphan chemicals. Other compounds, particularly those from developing countries are (quite reasonably) unpatentable. But is it time for some kind of system that provides some incentive for companies to invest in the research and development needed to prove that they’re safe and effective as medicines? While certain protections exist in the United States through the FDA, they are generally based on a paradigm of drugs that have been formally covered by patents that are now coming to the end, and for which secondary uses have been found. What is missing is protection for this new type of drug- drugs that come from either easy to produce sources, or simply natural products, that need extensive testing to ensure efficacy and safety. These are hard to protect, since they are already widely distributed, but this wide distribution may itself justify the further testing. Maybe governments need to take a more active interest in paying for the testing of these products, or creating a system that more effectively compensates those who invest in their development.

And more generally, does this problem reflect a weakness in the patent system. As Eisenberg puts it, the patent system is a ‘one size fits all’ approach that was never designed with biopharmaceuticals in mind. As more questions arise about patenting of genes, drugs and medical processes, maybe it is time to reevaluate how well the system works for biological molecules at all.