Does Patent Litigation Stifle Innovation? Ask Wilbur Wright

There’s an ongoing debate about the role that patents play in promoting creativity and innovation. The Washington Post has a fascinating story commemorating the 100th anniversary of the Wright Brothers’ first flight, and suggests that Wilbur Wright may have paid the ultimate price in patent litigation.
The story is also interesting for its discussion of the history of a prominent patent law firm and the attitudes and approaches that lawyers had to their clients in the early part of the century.
A quote:
“In the interest of full disclosure, I must tell you that the Wright Brothers case went on for so long it may have killed Wilbur in the process. A little known fact is that we dragged him to Boston for a deposition, where he became ill. He never recovered.”
Worth thinking about is another quote from the article with the words of Wilbur Wright:
“Wilbur Wright died of typhoid fever in May 1912. His last letter to Fish complained about how long the case was taking. ‘Unnecessary delays by stipulation of counsel have already destroyed fully three fourths of the value of our patent,’ he wrote on May 4, from Dayton, Ohio. ‘The opportunities of the last two years will never return again. At the present moment almost innumerable competitors are entering the field, and for the first time are producing machines which will really fly.’”

Fuzzy the Hampster, R.I.P.

It’s a sad day for the Kennedy family. My daughter’s pet hampster, Fuzzy, died last night. The death of any pet is very difficult, but Fuzzy was Grace’s first real pet and that makes it especially hard.
Fuzzy did have a long life and touched us all with her entertaining ways.
Several years ago, Grace came to me wanting to get a pet. Several allergy tests and second opinions later, it was clear that having any fur-bearing pet was not advisable for me. We talked the doctors into an arrangement where Fuzzy was largely kept away from places I frequented and Grace picked out Fuzzy at the Humane Society.
I could not be more proud of how responsible and loving Grace was in taking care of Fuzzy. It’s been a hard day for her.
We’ll miss Fuzzy but are thankful for the time she shared with us and the way she touched us all.

Intellectual Property Law in Two Pages

Professor John R. Kettle, III of the Rutgers School of Law has prepared a great two-page chart summarizing intellectual property law called “What Every Litigator Must Know About Intellectual Property.” By the way, when you see an article on law that includes something like “A Litigator’s Guide to . . .” you should know that you have found the legal literature equivalent to the “for Dummies” books – that’s not a bad thing (although I enjoy getting in the occasional dig against litigators), but it indicates you will get a short, easy to understand and to the point explanation of the subject matter.
Professor Kettle’s chart is a very useful resource and will be helpful to lawyers and non-lawyers alike. He prepared the chart in connection with a Practising Law Institute (PLI) coursebook also called “What Every Litigator Must Know About Intellectual Property, which I also recommend to your attention.

Homework Assignment for 2004 Election

I’ve been starting to feel that the level of political discourse will sink so low by November 2004 that any enthusiasm for voting will be thoroughly drained from the voting populace. What if they gave an election and only the politicians cared about voting?
The “good” news is that there’s a great posting on called “19th Century Guide to Dishonest Argument” describing an pointing to Arthur Schopenhauer’s The Art of Controversy, which delves into 38 categories of less-than-fair techniques of argument.
Might I suggest a new drinking game for the political season: drink a beer every time you recognize one of these techniques.
Anyway, a great homework text to study. Unfortunately, the intro to the post is becoming more true than any of us would want to accept: “In the public arena, rhetoric is more important than logic; sounding right is more important than being right.”

Creative Commons License Warranty – Follow-up

There has been some follow-up on the Creative Commons license warranty issues raised by me and others recently.
[Note: I would have simply made the following points as a comment to the Creative Commons blog, but making a comment there seems to require acceptance of a CC license for the comment.]
Glenn Otis Brown, who, to the best of my knowledge after reasonable inquiry, is at the Creative Commons or generally able to speak on its behalf, says:
“And again, all the hysteria about getting sent to the poor house is way off base. Read my old posts on the subject again. (1, 2, 3.) There is a “reasonableness” modifier on the warranty. Liability is not unlimited to the ends of the earth. It’s simply not.”
At risk of being characterized as “hysterical” on the subject, I want to point out that the qualifying language of “reasonable inquiry” to which Glenn refers simply limits the instances in which a licensor might be found liable for a breach of the warranty; it has nothing to do with a cap on the amount of damages based on that liability, even if that is what was intended.
Going to the poorhouse still remains a possibility under the current language, although only in cases where there has not been “reasonable inquiry,” whatever they may be found to mean.
Glenn goes on to say:
“Licensors should make a reasonable effort to verify that they’re not licensing someone else’s content, or that if they have, they’re making a fair use. If in doubt, they should tell the world what pieces of content in their licensed work they’re not sure about. If they’re still in doubt, they shouldn’t license their work. That’s it.”
I think that Glenn meant to say “using” rather than “licensing” in the first sentence, but that statement captures my point of concern. Potential licensors should be conspicuously alerted to the warranty provisions and informed that using the CC licenses requires making important choices with significant legal consequences.
That, by the way, is not a bad thing. My real concern has been that the atmosphere around the Creative Commons licenses promotes a “join up with the in-crowd” mindset when in fact people might be better advised to go slow – especially authors and content creators, given that from Glenn’s comments, it is definitely not the intent of the CC licenses to maximize protection for authors.
Karl-Friederich Lenz has done a nice job of commenting on these issues here and here and here.
The last comment by Professor Lenz is in response to the point that the CC Licenses themselves explicitly contained an as-is clause and a disclaimer of all warranties, which was somewhat ironic. Glenn’s comment on the CC’s change to that language remains unconvincing to me, but I think even the changed language brings home the point that authors are very reluctant to give warranties of any kind when they are licensing content without any compensation (and even when they are).
The bottom line for me is that the waranties are still being discussed and, as a result, I believe the purposes of the CC licenses will be better clarified so that we can make a good decision about when and if they may be appropriate for us. For now, I personally will not use the licenses, laudable as their intent may be.