Copyright, patents and the limited monopoly
In a discussion of cell-phone unlocking, Bob Zadek described copyright law as a government-created monopoly, telling listeners that copyright has existed since the country’s founding and is specifically provided for in the Constitution. On his account, an inventor who publishes an invention tells everyone exactly what it is and how it works, and the government then says nobody can use the intellectual property without paying a royalty. Copyrights are not forever: after the finite period expires, the invention is in the public domain and anybody can use it for free. Zadek gave the incentive rationale — without protection, a free rider could simply copy the invention and there would be no incentive to invent — and offered the formula for Coca-Cola as an aside, noting that it is not patented and that anyone who knew it could use it for free, because Coca-Cola preferred not to publish it and to run the risk of someone figuring it out Derek Khanna - What’s Stifling Innovation? (2014).
Guest Derek Khanna added a distinction between copyright and patent law: copyright, he said, is strictly about incentivizing content creation, and the word the founders used was actually “the sciences,” by which they meant writing, books, maps and now music. He called it unusual, and basically an accident, that a law designed to foster content creation was being used to protect the monopoly profits of big mobile companies, and said there is no real connection in the law about why a consumer unlocking their own phone should fall under copyright law Derek Khanna - What’s Stifling Innovation? (2014).
Recorded information as public record
A 2016 episode on police body cameras used “public domain” in a different sense. Zadek framed the introduction of body cameras as significant because police are able to record citizens’ activities, often when citizens are behaving under stress, and said this puts the citizen’s activities, both verbal and visual, into the public domain Matthew Feeney on Best Practices for Police Body Cameras (2016). He returned to the point later, describing the unmade bed, unwashed dishes, beer cans and peanut shells that a camera might capture, and arguing that once recorded, that information becomes part of a public record — and that like most other public records, such records are available to the public. He cited a strong body of law generally called Freedom of Information Acts, which allow the public to acquire information held by government unless it is exempted, and asked whether that means anybody can look at footage recorded by a policeman inside somebody’s home, where the recording was never expressly consented to by the people whose home was recorded Matthew Feeney on Best Practices for Police Body Cameras (2016).
Guest Matthew Feeney answered that it depends on the jurisdiction. He put the number of law enforcement agencies in the United States at roughly 18,000, noted that there are 50 states, and said states have tried to address these concerns in numerous ways. In his example, if the hypothetical took place in South Carolina, one would not be able to request the footage, because legislation there exempts body camera footage from FOIA requests. He said that kind of legislation or proposal perhaps goes too far, and that a serious balancing of accountability and privacy might instead make special rules for recordings showing the inside of people’s homes, since a person has a different expectation of privacy inside the home than walking down Main Street Matthew Feeney on Best Practices for Police Body Cameras (2016).
Zadek then raised Hillary Clinton’s phrase “zone of privacy,” which he said she used years earlier and which introduced the concept into public discourse, and described constitutional law as more or less recognizing the principle that everyday citizens reasonably expect certain parts of their life and behavior to be private — meaning not available or able to be protected from the public domain. He asked whether a candidate for high public office recorded in his own home during a domestic disturbance would receive the same level of protection. Feeney said the public official has the same expectation of privacy in his or her home, while acknowledging that the public has more of an interest in such an incident than in one involving an ordinary person; he added that members of the public and journalists would be able to request police reports and similar documents, that footage leading up to entry into the home should probably be publicly available, and that once an officer walks into the home different rules should kick in Matthew Feeney on Best Practices for Police Body Cameras (2016).
An off-patent molecule
In a 2016 interview with Dr. Rick Doblin, the phrase appears in a third setting. Doblin said MDMA — methylenedioxymethamphetamine, also known to people as ecstasy or Molly — was invented in 1912 by Merck pharmaceutical company, which abandoned it after testing it in animals and seeing nothing of interest. He said it was later picked up by the CIA’s MKUltra mind control program early on in 1952, in a group of toxicology studies in animals that were classified until the early ’70s. He described MDA, methylenedioxyamphetamine, as a drug popular during the ’60s, a softer version of LSD with heart-opening qualities, and said Nixon under the Controlled Substances Act of 1970 criminalized these drugs. Chemists, he said, figured out that tinkering with the molecule could produce a drug that was not specifically outlawed and would therefore be legal, and MDMA was independently developed by underground chemists who had no knowledge that Merck had already developed and patented it. It is now off-patent, in the public domain, and that, Doblin said, is in part why the pharmaceutical industry is not interested in developing it Dr. Rick Doblin on MAPS and the War on Drugs (2016).
Doblin also described MDMA as a secret underground therapy drug since the middle ’70s, and said that several people who experienced it in that context realized many people would be interested in it not only therapeutically but recreationally; it became known as ecstasy and was used a lot in Dallas at a bar called the Starck Club. He said it was clear that under Reagan and “Just Say No” there would be a crackdown against MDMA, and that having learned about LSD’s value in 1972 after a crackdown and about MDMA’s value before what was going to be a crackdown, he was inspired to get mobilized, work with underground networks and try to become above ground Dr. Rick Doblin on MAPS and the War on Drugs (2016).
Across episodes: no development
The topic is touched in three episodes — Derek Khanna on innovation, Matthew Feeney on police body cameras, and Dr. Rick Doblin on MAPS and the war on drugs — and the excerpts show no development of a single argument across them: each uses “public domain” for a different subject, and no speaker in one episode responds to or extends what a speaker in another said.
What the sources do not cover
The excerpts do not state the constitutional clause or amendment on which copyright and patent protection rests, the length of any copyright or patent term, or the name of any statute governing unlocking, FOIA or body-camera footage beyond the Controlled Substances Act of 1970. They do not say what any court has held about public records, privacy or patent expiration, and they do not identify the jurisdiction in Feeney’s South Carolina example beyond the state itself. Doblin’s account of MDMA’s patent status is given as background and the excerpt does not say when the patent lapsed or what rights, if any, remain.