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[dvd-discuss] Re: On State Sovereign Immunity and Senate Bill 2031, Leahy's "IP"Protection Restoration Act

Bernard, Hartmut:

See below.

Bernard Lang wrote:
> This seems far too long and complex.
> Can you summarise briefly the issue ?


1) Two giant constituency categories who naturally ought to
have at heart many of the same concerns that the "online
activist/technology politics" communities have, are in the
position of selling out their explicitly recognized power to
resist both Federal and International initiatives in these
areas.  Namely, the States and their Universities.

2) Leahy's "Intellectual Property Protection Restoration
Act" is an Act that, to all appearances, may very well have
been instigated by a content industry partisan listening in
on the Berkman Institute's DVD-discuss list, on which it was
recently observed that certain Supreme Court cases had
affirmed that the States have sovereignty such that they
would be immune from charges of "intellectual property"
infringement from the Federal level.  A State can very well,
if it chooses, grant broad freedoms to its Universities in
the use of copyrighted and other materials.  The Act
surfaced scant weeks after the idea was broached on the
DVD-discuss list.

3) Bayh-Dole is the Act that signals the moment the
Universities in America went from "intellectual property" to
Intellectual Property.  It not only undermined the
Universities' mission of fostering the advancement of
knowledge for humanity, but it also created a group of
people with a vested interest in the idea that they should
be able to sell the fruits of their research, despite the
fact that it is Federally funded and traditionally in the
public domain as a result -- the Universities and their
"Technology Transfer Officers."  Bayh-Dole authorized
Universities to enter into enormously lucrative private
contracts with big-time "IP" stakeholders such as
pharmaceuticals and software companies, in which those
companies could obtain ownership of the fruits of the
schools' research.

PILCH Hartmut wrote:
> I wonder whether this battle is worth taking sides.
> It is like the battle between large companies and "small inventor"
> associations: a nul sum game making the patent system unpopular with the
> one or other side, where both of the sides use a lot of selfish lobbying
> arguments not worth supporting, and in either victory creates
> opportunities for those who want to create a counter-weight to the patent
> lobby.

4) I think you're exactly right -- from a certain
perspective.  That is, from a legislative standpoint, where
everything rises or falls on the terms committed to paper by
legislators, it can often appear to be a "nul sum game." 
But from the standpoint of community organizing, building
constituencies makes all the difference.  A few enlightened
University Officers, or even "Technology Transfer Officers"
can go miles towards reversing the bribe that's at work
here.  Even if Leahy's Bill goes through, it's important to
organize constituencies rather than simply craft
legislation; and in this case the key is to register outrage
ragarding the idea of selling out the States' "birthright,"
so to speak, and to keep reference to Bayh-Dole alive.  One
aim, might be, for instance, to repeal Bayh-Dole -- which
entails much incremental work, of course.

Seth Johnson


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