Viagra, Patents, and Responsibility to Society

From Michael Geist at his excellent blog on intellectual property law and policy in Canada:

The Supreme Court of Canada this morning [November 8] shocked the pharmaceutical industry by voiding Pfizer’s patent in Canada for Viagra. The unanimous decision provides a strong reaffirmation of the policy behind patent law, namely that patents represent a quid pro quo bargain of public disclosure of inventions in return for a time limited monopoly in the invention.

Disclosure is… a crucial part of the patent bargain.

The court clarifies that this involves not only a description of the invention and how it works, but rather a much more practical level of disclosure “to enable a person skilled in the art or the field of the invention to produce it using only the instructions contained in the disclosure.” In this case, the court finds that Pfizer failed to provide sufficient disclosure.

Seems that, rather than doing one patent for the drug, Pfizer filed for two separate patents for the drug’s components. As a result, the invention could not be reproduced with the description in a single patent. Pfizer “‘gamed’ the system.”

What I find interesting is that the Canadian Supreme Court so clearly states what is implicit in our own founding documents. Patents and copyright are granted in order to provide an incentive for people to take on the risky business of innovation. At the same time, they are time-limited so that all can benefit from the good that is created in the long run. Advantage leans early on to the creator and later on to the society. That’s the balance. Uphold both goods to seek the common good.

Here in the US, that balance has tilted toward the creators’ side. In a real practical sense, that’s why people download music illegally and mail order drugs from Canada. Nice to see a neighbor seeking the balance.

Netflix, Closed-Captioning, and a Legal Settlement

Back in July, I posted about Netflix’s lost bid to have the a lawsuit against it thrown out of court. A class action lawsuit filed by the National Association for the Deaf asserted that Netflix violated the Americans with Disabilities Act because Netflix when it failed to provide closed-captioning for many of its streaming videos. My post reflected a bit on how the right thing to do can sometimes be very complicated. There are times, I think, when people/groups that demonstrate generally good will get (themselves) into questionable situations because they either didn’t think through their plans entirely, or they through it so late that changing course is so difficult, they are stopped in their tracks. Doing justice (a virtue) thing requires bravery (another virtue), but it also requires prudence (a third virtue) to figure out the right course of action to achieve justice.  For publicly traded companies seeking to do the right thing while both staying in business and—most importantly—keeping major shareholders happy, that’s no mean feat. Putting yourself out of business is not necessarily the most morally laudable course of action.

Well, it looks like the legal process worked its magic.  According to Joe Mullin at Ars Technica:

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Back to School, with Metaethics Courtesy of Luciano Floridi

So, things have been very quiet around here at Rewiring Virtue for the last 6 weeks.  As it turns out, last year I was on sabbatical to focus on my writing. That gave me lots of time to write articles and such, but also blog.  Six weeks ago, I headed back to the classroom.  You can see what a dent it put into my writing.  Quite a gap.

Now that we are at midterms, it’s time I got back at it. And, like any good teacher, I’ll distract you by giving you an assignment.  Luciano Floridi has written a great, nuanced, and complex moral analysis  (via Michael Geist) of the recently failed Anti-Counterfieting Trade Act (ACTA-pretty much an US/EU version of the failed SOPA/PIPA legislation here in the states).  Floridi is a philosopher and longtime technology ethicists.  He is also the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) Chair in Information and Computer Ethics at the University of Hertfordshire.  He has been doing thoughtful work for a long time, and is one of the leaders in the field.  The essay, entitled “ACTA – The Ethical Analysis of a Failure, and Its Lessons,” is worth reading (if a bit complex).

Floridi is a philosopher, so a good part of his job is making distinctions.  In this realm, there are a couple of really valuable things that he does in this paper.

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Stunning Impatience and Failure: CNN, FoxNews, and the Health Care Ruling

At SCOTUSblog, an amazing, detailed account of the June 28 failure of CNN and FoxNews to broadcast an accurate report on the Supreme Court’s decision on the Affordable Care Act by Tom Goldstein, the Publisher of SCOTUSblog (who got it right). Over 7,000 words on a 15 minute period of time.

The Court’s own technical staff prepares to load the opinion on to the Court’s website.  …  The week before, the Court declined our request that it distribute this opinion to the press by email; it has complete faith in the exceptional effort it has made to ensure that the website will not fail.

But it does…

The opinion will not appear on the website for a half-hour.  So everyone in the country not personally at 1 First St., NE in Washington, DC is completely dependent on the press to get the decision right.

But they didn’t. Or at least a couple big news outlets didn’t.  Chief Justice John Roberts started speaking at 10:06:40 am. That’s when the first press got the decision on paper. Bloomberg issued the first report 52 seconds later, correctly reporting that the individual mandate was upheld. But not everyone got it right, of course. 12 seconds later CNN reports it incorrectly. Fox had already posted the same news at 10:07:39. Lots of people were given the wrong news.

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ACTA, RIAA and Doctorow on “The Internet’s Original Sin”: Discourse Matters

A confluence of stories over the past few days has me thinking about the commerce, politics, and ethics of our current digital landscape. More specifically, why we spend so much time arguing about music piracy and ignoring other pressing concerns like privacy and digital divide issues. I think it has a lot to do with modes of moral discourse.

1) So, I’m gearing up to teach my “Technology Ethics” course again this fall. I haven’t taught it in a few years, so I am spending a lot of time updating case studies for the class. Tech changes fast, so cases become irrelevant pretty quickly.

One case, though, has stayed relevant since I started teaching courses on tech ethics ten years ago: music piracy. By 2002, Napster had already come and gone (at least legally speaking), and there was a general sense that something immoral—even if legal—had happened: culture had lost to commerce. So, while legally resolved, the question of music piracy did not die. Yesterday, Cory Doctorow wrote a really evocative piece at Locus Online about why it won’t die. He astutely describes music’s multi-level integration in human life, and in doing so, shows why it won’t go away anytime soon. As he puts it “Music exists in a sweet spot between commerce and culture, individual and collective effort, identity and industry, and digital and analog – it is the perfect art-form to create an infinite Internet controversy.” (The only thing I’d add to his great descriptive work would be the pervasiveness of music in religious ritual.)

2) Yesterday, the European Parliament rejected the international Anti-Counterfeiting Trade Agreement (ACTA) by a vote of 478 to 39. ACTA, proposed in 2007 by the US and Japan, was aimed at coming to international agreement about how to reduce copyright infringement and counterfeiting. For years, it was negotiated in secret and was able to gain quite a bit of momentum within closed circles. But as the details were leaked over the last year, popular, hacker, political, and scholarly opposition mounted. Like the ill-fated SOPA/PIPA legislation in the US, while it had provisions that might actually reduce criminal activity, it also included provisions that would criminalize many common activities and fair uses. Opponents were—both within Parliaments and the public sphere—successfully made the case that the legislation did not fit the social and legal realities. (A lot of those links are to ArsTechnica. As far as I know, they were the only tech news source paying attention to ACTA in 2007.)

3) July 1 marked the possible start date for the new “Copyright Alert System” here in the United States. The CAI is a system of copyright oversight and education being implemented by internet service providers. It was developed as a part of the 2011 “Memorandum of Understanding” agreement between content creator organizations like the RIAA and MPAA and major IPS like Verizon, Comcast, Time Warner, and Cablevision. This was a “voluntary agreement” by the participating bodies, but its presence shunted broader existing movements to offer legislation requiring law enforcement and ISPs to police copyright oversight. The July 1 date follows a previous implementation delay, and may not hold.

The most controversial part of the program requires ISPs to track suspicious peer-to-peer filesharing by their users. When suspected infringement has occurred, users will be notified, and if repeated, may be barred from internet connection. Many refer to this as “six strikes, you’re out” policy. The program’s oversight organization, The Center for Copyright Information, emphasizes the role of ISPs in raising awareness of copyright law, referring to it with the “big brother” sounding phrase “progressive educational system”. They have an advisory board that has some influential “internet civil liberties” folks, although the board may have little actual power. Despite the educational angle, their still remains a punitive edge to the whole system. (It reminds me a lot of the Hollywood’s “voluntary” adoption of the “Hayes Code” of self-censorship to avoid state-by-state legislation.)

So how does this all fit together? From the ashes of the Napster lawsuit rose a free culture movement that has worked to influence internet policy and social mores in the direction of pulling back on copyright protection in the name of spreading creativity and culture. The aforementioned Corey Doctorow is one of the movement’s most articulate proponents. Over the last few months, we’ve seen some high profile wins for the “free culture” movement, most notably the SOPA/PIPA defeat here in the US and the ACTA defeat in Europe.

Yet, despite these wins, the issue of copyright enforcement is not going away. While this version of ACTA is finished, many believe it is not last we’ll hear on the subject. The same goes for SOPA. If the Copyright Alert System is any indication, the arena for copyright enforcement will be the private sector, not legislation. Free culture on the net is great, but if you can’t get an internet connection, what good will it do you? The RIAA and MPAA lost the ACTA/SOPA/PIPA battles, but they may have won the war. (Anti-trust concerns notwithstanding.)

The key in this victory seems to me to be about moral discourse. In 1988, James Gustafson published a great little book entitled Varieties of Moral Discourse. (Out of print, but reprinted in the book Seeking Understanding.) Originally delivered as a series of talks, Gustafson suggests that sometimes we talk past one another, and sometimes our moral argumentation fails to achieve its goals, because we are speaking in different ways. Some people engage in prophetic discourse that is aimed at pointing out evils and rallying people to confront them in society. Others engage in narrative discourse that tells stories in order to reveal values and inspire commitment. Both of these seek to move people to action. But there is also the ever important policy discourse, which focuses on finding actual solutions to problems in real political and social situations. Finally, there is the important ethical discourse, which is technical analysis of the conceptual backing of moral claims done in order to clarify positions and unveil inconsistencies and implications.

Of course, people shift between these different types of discourse. We may tell stories sometimes, consider policy options at other times, and rage against the machine at others. Gustafson’s categories can help us think more deeply about who we are and how we relate to the world.

More importantly, the categories of moral discourse are particularly useful, I think, to help us see the contours of public debate and social change. So often, it seems that we are speaking past each other. Our discourse on music piracy is a great example. Some people tell the stories of the RIAA lawsuits as a way to show the injustice of a system that would impose more than a million dollars in damages against a single mother who shared less than 30 songs. Others—like Doctorow and Ari Emmanuel—issue prophetic diatribes against a system that they see as alternately destroying culture for all in the name of the greed of a few or destroying the American intellectual property industry. Still others try to work out policies that will ensure the continued functioning of society, yet don’t presume that any solution will live up to everyone’s expectations.

It seems to me, though, that given the legal and bureaucratic context in contemporary America, it is likely that those who know how to craft policy discourse and deploy it within the power structure end up shaping law more successfully than the prophets. That’s because society runs on policy. Policies are the software for the hardware of a culture. They govern how things are processed through the various structures and industries. No matter how right they are, the prophets will remain marginal unless they know how to talk to policy makers in ways that easily translate to policies that can be accepted by governing bodies. That means incremental change—the bane of the prophet’s existence!

Case in point: the Copyright Alert System. Protesters were vociferous enough with their prophetic discourse to make the ACTA, SOPA, and PIPA policy proposals look untenable. Some people cited problems with specifics of the legislation, but it seems to me (at least with SOPA and PIPA) that the biggest problems were political: policy makers saw their continued ability to effect policy endangered—a.k.a. they might lose an election—if they voted for the laws. But when political calculation is out of the picture, policy gets made. Such was the case when the content industry, the ISPs, and the FBI got together and brokered the “Memorandum of Understanding.”

When the SOPA legislation went down, various other proposals were offered in its place, mostly by those in the tech industry. The problem such efforts is often twofold: their authors either have no place in legal or governmental policy-making bodies or they are written in a style that is prophetic, and so not operationalizable in a contested policy space. No matter how right it the free culture perspective is, it will be a long time before the US government or big business adopts a “free culture” perspective. That discourse is so foreign to them that I don’t think they even really hear it.

So, the question becomes: what can proponents of free culture do to move society in the direction of a free culture through articulating policies that would be easy to implement by governments and industry, and thus have a real possibility of being adopted? And even more important, how can free culture advocates become a part of the policy making machine?

Tip of the hat to Dr. Nadia Delicata, whose talk on Theology and rhetoric at a recent conference has me thinking about discourse and policy making.

Next Steps In Net Neutrality

The issue of net neutrality—the idea that internet service providers should not be able to prioritize particular particular sources or types of data—has been pretty contentious for quite some time. ISPs like Verizon say it is necessary to prioritize data in order to be sure systems function properly: you don’t want streaming movies to crowd out first responder or military data. Others suggests that if allowed, companies like Comcast that both provide service and content offer faster service when using their own content, but limit bandwidth when people try to, say, stream content from other creators. The FCC put in some rules, but the telecoms sued, and they will probably be overturned.

Hillicon Valley has reported that the FCC has now created the Open Internet Advisory Committee to try to come up with some middle-ground interpretation policies for the current FCC net neutrality rules.

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