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October 28th, 2022 at 3:15 pm
Anti-Patent Group Seeks to Weaken U.S. Pharmaceutical Innovation and Intellectual Property Advantage
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When pondering the origins of American Exceptionalism, and what makes us the most innovative, prosperous nation in human history, look first to our tradition of protecting intellectual property (IP) – patent, copyright, trademark, and trade secret property rights.

After all, other nations match or even exceed the U.S. in free market rankings (24 nations in the latest annual Index of Economic Freedom, in fact).  No nation, however, can match us for sheer innovation.  America accounts for less than 5% of the world’s population, and even with the world’s largest economy we account for under 25% of the global economy.  In contrast, no nation can match our scientific innovation, from flight to space exploration to the internet.  Nor can any nation match our artistic leadership, from the film industry to television to music, or claim as many instantly recognizable trademarks, from Coca-Cola to Apple.

Year after year, that’s why the U.S. leads global rankings of IP protection.

Perhaps most conspicuously, the U.S. accounts for fully two-thirds of all new lifesaving pharmaceuticals introduced to the world each year.  In an era increasingly reliant on pharmaceutical treatments for everything from Covid to cancer to Alzheimer’s, that is a leadership of which we should remain both proud and protective.

Inexplicably, however, some voices seek to undermine that IP leadership position.  A group called I-MAK offers the latest assault, with a “study” entitled “Overpatented, Overpriced,” which attempts to show “how excessive pharmaceutical patenting is extending monopolies and driving up drug prices.”  We employ scare quotes around the term “study” because I-MAK’s work has been previously debunked and exposed by leading IP scholars like George Mason University and Antonin Scalia Law School Professor Adam Mossoff and Senator Thom Tillis (R – North Carolina) for using defective and non-transparent supporting data.

Indeed, we highlighted earlier this year how drug prices have remained far, far below overall inflation.  Efforts like I-MAK’s would only end up suffocating drug innovation, not reducing prices, as we’ve also highlighted:

Of all new cancer drugs developed worldwide between 2011 and 2018, 96% were available to American consumers.  Meanwhile, only 56% of those drugs became available in Canada, 50% in Japan, and just 11% in Greece, as just three examples.  Patients in nations imposing drug price controls simply don’t receive access to new pharmaceuticals as quickly as Americans, if they ever receive them at all.”

Even the World Health Organization (WHO) acknowledges that overseas consumers’ lower access to pharmaceutical innovations stems from their governments’ imposition of price control regimes:

‘Every time one country demands a lower price, it leads to lower price reference used by other countries.  Such price controls, combined with the threat of market lockout or intellectual property infringement, prevent drug companies from charging market rates for their products, while delaying the availability of new cures to patients living in countries implementing those policies.’”

The irrefutable reality is that U.S. patent protections explain why we produce the overwhelming share of new drugs worldwide, including the Covid vaccines.  Efforts like I-MAK’s latest “study” continue a bizarre ongoing affront to property rights, the rule of law and IP.  If successful, they would only mean fewer future vaccines and treatments, and must be flatly rejected.

 

August 31st, 2022 at 6:18 pm
Senate Should Take Up Companion Legislation to the House’s American Music Fairness Act (H.R. 4130)
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Congress doesn’t maintain a spotless record of affixing accurate titles to proposed legislation, but in the case of the American Music Fairness Act (H.R. 4130), the House of Representatives nails it.

Now it’s time for the Senate to take up companion legislation and bring greater fairness to performance rights in the music industry.

By way of background, federal law currently secures royalty payments for songwriters and others when their songs are played on AM-FM terrestrial radio, but not for the performing artists themselves.  Deepening that odd paradox, performance artists receive compensation when their songs play on digital broadcast platforms like the internet, satellite and cable.  Terrestrial radio broadcasters, however, somehow remain exempt under existing law from having to pay that same compensation.  There’s no logical or legal justification for that paradox, which amounts to crony capitalism in the form of a special government carve-out.

Fortunately, the American Music Fairness Act currently before the House would finally secure performance rights for artists whose recordings are played on terrestrial radio (with exceptions maintained for smaller mom-and-pop stations).  In 2021, we at CFIF joined numerous fellow conservative and libertarian organizations in a coalition letter to the House amplifying the need to pass this legislation to protect artists’ natural intellectual property (IP) rights:

The Constitution protects intellectual property rights and specifically delegates to Congress authority to protect creative works.  Artists who produce music therefore have the right to protect their intellectual property, including both the writer and performer of a given recording.  When a given work is transmitted, common sense and basic fairness dictate that the medium of transmission should not affect the existence of these rights.  Yet, under the current regime, a performer does not hold effective or enforceable rights to his or her product when it is distributed through terrestrial radio.”

Opponents of the American Music Fairness Act illogically suggest that it would somehow introduce needless market regulation, but the obvious reality is that the market is already regulated in the discriminatory manner described above.  The American Music Fairness Act would merely level the playing field and respect the value of the artists’ works.

Some opponents of H.R. 4130 also falsely attempt to portray it as creating a “tax.”  As leading anti-tax crusader Grover Norquist of Americans for Tax Reform answers, however, taxes are compulsory payments to government, whereas royalties are voluntary payments to broadcast others’ creations:

[W]hat is proposed is not, in fact, a tax but a royalty.  The definition of a tax is the transfer of wealth from a household or business to the government.  Taxes aren’t voluntary; paying a royalty is.  It is completely within the rights of broadcasters to decide not to pay for the use of a performer’s song by simply not using the song.  This may not be an ideal option, but these songs actually are the property of someone else…  Just as dishonest as calling a tax a fee or fine, so too is it wrong to apply the word ‘tax’ to a royalty payment.  Creating the negative perception that this legislation creates a new tax may be convenient in the short term and assist opponents in gaining political support;  in the long run it is incredibly unhelpful to those who work to reduce the burden of government in our everyday lives.”

By any standard of fairness and logic, performing artists possess a natural right to enjoy the fruits of their labor and creativity, just like any of us do for our work.  After all, artists already receive performance payments from non-terrestrial radio stations, reflecting the value of their work.  The American Music Fairness Act simply corrects an unfair and illogical federal carve-out.

Accordingly, the House should promptly pass this long-overdue legislation, and the Senate should similarly take up companionate legislation.

April 26th, 2022 at 1:28 pm
Happy World Intellectual Property (IP) Day — Celebrating the Fuel of U.S. and Worldwide Innovation
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Happy World Intellectual Property (IP) Day!

Among the many elements explaining American Exceptionalism in worldwide innovation, power and prosperity, nothing stands above our enduring legacy of protecting IP – patents, copyrights, trademarks and trade secrets.

Since America’s founding, we’ve protected IP like no other nation before or since.  Our Founding Fathers deliberately inserted text protecting IP rights into Article I of the Constitution, which reads, “Congress shall have the Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  And as James Madison explained in the Federalist Papers while advocating ratification of the Constitution, protecting IP respected the natural right of individuals to enjoy the fruits of their labors, while also serving the public good by encouraging innovation.

The assurance that one’s creations will enjoy legal protection in turn promotes creative activity, which is why Abraham Lincoln — himself a patent attorney — noted that America’s IP protections, “added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”

Consequently, no nation spanning the entirety of human history even approaches America’s record of patented invention, from the telephone to the airplane, from lifesaving pharmaceuticals like the polio vaccine to the internet.   No society remotely rivals our copyrighted artistic influence, whether in the form of motion pictures, television programming or popular music.  No nation’s trademarks stand recognized in the way that the Coca-Cola or Apple logos are instantly identified across the world.  A direct relationship exists between our tradition of IP protection and our unrivaled success in innovation and prosperity.

That’s why we at CFIF are pleased to join over 100 other free-market, conservative and libertarian organizations here in the U.S. and across the globe in celebrating World IP Day, as highlighted by our collective open letter to World Intellectual Property Organization (WIPO) Director-General Daren Tang:

IP-intensive industries play a central role in job creation. In the United States, IP-intensive industries account for 44 percent of total employment, and jobs in these industries come with a 60 percent weekly wage premium over jobs in other industries… 

Intellectual property protections are also important for promoting economic growth.  The United States Patent and Trademark Office found that IP-intensive industries contribute $7.8 trillion USD to the U.S. economy, or nearly 41 percent of total U.S. DP.  The U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) further reported that these innovative industries account for over 40 percent of U.S. economic growth.  The role of robust IP protections is clearest when contrasting country scores and their World Bank income classification.  According to the 2021 International Property Rights Index, high-income countries’ scores were 33.5 percent stronger than the average score of upper-middle-income countries and 66.1 percent stronger than the average score of low-income countries.  This IP protection gap must be closed.”

Unfortunately, too many political leaders here in America and across the world fail to respect the role of IP in boosting innovation and wellbeing, and actively seek to undermine it.  We cannot let that occur, lest we all suffer.  As we conclude in our coalition letter, “On this World Intellectual Property Day, we urge WIPO, along with other international organizations, national governments, and policymakers around the world, to continue to promote policies which strengthen intellectual property protections and ensure that a healthy innovation environment can thrive for today’s youth and for generations to come.”

 

 

March 18th, 2022 at 4:30 pm
Congress Should Pass the American Music Fairness Act (H.R. 4130) to Bring Fairness to Performance Artists
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For years, we at CFIF have joined fellow conservative and libertarian organizations to spotlight the unfairness under federal law by which songwriters and others receive royalty payments when their songs are played on AM-FM terrestrial radio, but the performing artists themselves do not.

Exacerbating the illogic, performance artists do receive compensation when their songs play on digital broadcast platforms like the internet, satellite and over cable.  Yet terrestrial radio broadcasters remain exempt under existing law from having to pay that same compensation.

There’s no logical or legal justification for that paradox.  It amounts to crony capitalism in the form of a special government carve-out, and we’ve called for changes in federal law to finally correct it.

Fortunately, we can report good news in Congress on this unresolved issue.

New legislation before the House of Representatives entitled the American Music Fairness Act (H.R. 4130) would finally secure a performance right for artists whose recordings are played on terrestrial radio, with exceptions allowed for smaller mom-and-pop stations.

As we and fellow conservative and libertarian organizations wrote in our coalition letter to the House in 2021, that would protect artists’ natural intellectual property (IP) rights:

The Constitution protects intellectual property rights and specifically delegates to Congress authority to protect creative works.  Artists who produce music therefore have the right to protect their intellectual property, including both the writer and performer of a given recording.  When a given work is transmitted, common sense and basic fairness dictate that the medium of transmission should not affect the existence of these rights.  Yet, under the current regime, a performer does not hold effective or enforceable rights to his or her product when it is distributed through terrestrial radio.”

Opponents of the American Music Fairness Act might illogically allege that the proposal would introduce needless regulation of the market.  The truth, however, is that the market is already regulated in the discriminatory manner described above.  The proposed law would simply level the playing field and better respect the value of the artists’ works.

Opponents might also falsely attempt to portray H.R. 4130 as creating a “tax.”  As Grover Norquist of Americans for Tax Reform cogently answered, however, a tax is a compulsory payment to government while royalties at issue here are voluntary payments to broadcast others’ creations:

[W]hat is proposed is not, in fact, a tax but a royalty.  The definition of a tax is the transfer of wealth from a household or business to the government.  Taxes aren’t voluntary; paying a royalty is.  It is completely within the rights of broadcasters to decide not to pay for the use of a performer’s song by simply not using the song.  This may not be an ideal option, but these songs actually are the property of someone else…  Just as dishonest as calling a tax a fee or fine, so too is it wrong to apply the word ‘tax’ to a royalty payment.  Creating the negative perception that this legislation creates a new tax may be convenient in the short term and assist opponents in gaining political support;  in the long run it is incredibly unhelpful to those who work to reduce the burden of government in our everyday lives.”

Here’s the bottom line:  Performing artists have a natural right to enjoy the fruits of their labor and creativity, just like any of us do for our work.  Indeed, artists already receive payment from non-terrestrial radio stations, reflecting the value of the artists’ work.  Accordingly, the existing federal carve-out is unfair and illogical, and this bill simply corrects that imbalance.

It’s therefore time for Congress to pass the American Music Fairness Act (H.R. 4130) and achieve common-sense reform at last.

 

January 25th, 2021 at 1:07 pm
CFIF Joins 75-Group National & State Coalition Opposing Socialized Medicine and Importation of Foreign Price Controls
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Today, continuing our longstanding opposition to the ruination of American healthcare by importing foreign price controls and socialized medicine, CFIF proudly joins a 75-group coalition letter to the Centers for Medicare and Medicaid Services opposing the interim final rule to implement the “Most Favored Nation” (MFN) model under Section 1115A of the Social Security Act, which forces physicians, patients and providers into a mandatory demonstration under the ObamaCare Center for Medicare and Medicaid Innovation (CMMI), and which ties prices paid for medicines in Medicare Part B to the prices paid in socialized healthcare systems of foreign nations.

Specifically, the letter explains in detail how the rule will do nothing to stop foreign freeloading off of American pharmaceutical innovation, it will reduce access to new cures (just as it has in those foreign nations), it threatens millions of high-paying American jobs, it moves America one step closer to government-run healthcare and it utilizes ObamaCare to circumvent Article I of the U.S. Constitution.

As demonstrated once again by U.S. pharmaceutical leadership in quickly developing coronavirus vaccines, we’re the envy of the world in this regard.  The last thing we need at a moment like this is to undermine our status with a potentially catastrophic unforced error like this.

July 6th, 2020 at 2:32 pm
“Blanket Licensing” – a Collectivist, Bureaucratic, One-Size-Fits-All Deprivation of Property Rights Proposal
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America’s legacy of unparalleled copyright protections and free market orientation has cultivated a music industry unrivaled in today’s world or throughout human history.

From the first days of the phonograph, through the jazz age, through the rock era, through disco, through country, through hip-hop and every other popular musical iteration since its advent, it’s not by accident that we lead the world in the same manner in which we lead in such industries as cinema and television programming.  We can thank our nation’s emphasis on strong copyright protections.

Unfortunately, that reality doesn’t deter some activists from periodically advocating a more collectivist, top-down governmental reordering of the music industry in a way that would deprive artists and creators of their property rights.  Some advocates simply will not relent in their unceasing and misguided campaign to undermine copyright protections that have provided the wellspring for U.S. musical preeminence.  They seek to replace strong copyright protections and the freedom of market participants to mutually negotiate, ultimately to consumers’ obvious benefit, and replace them with a government-determined rate and a one-size-fits-all bureaucratic approach that eliminates market participants’ autonomy.

As just the latest example, British activist Cory Doctorow of the Electronic Freedom Foundation (EFF) now proposes a “blanket licensing” idea under which anyone wishing to offer music to pubic audiences would be required to open an account with a collecting society.  His heavily bureaucratic proposal would curtail the ability of copyright owners to negotiate royalties as they see fit with internet music platforms.

In an era of endless musical genres and methods to access them according to one’s preference, how does imposing such a collectivist, centralized, one-size-fits-all regime make sense?

The obvious answer is that it doesn’t.

Doctorow’s proposal betrays a fundamental flaw by misconceptualizing the nature of copyright itself by misstating “copyright’s real purpose:  spurring creativity and innovation.”

While Doctorow can be forgiven for his unfamiliarity with American constitutional principles, and while the utilitarian goal of creativity and innovation is indeed a primary feature of copyright and other intellectual property (IP) protections, that’s an inaccurate and incomplete statement of its “real purpose.”  Rather, copyright through common law and American constitutional history is valued as a natural property right of the creator, as we at CFIF articulated in our policy manual entitled ”The Constitutional and Historical Foundations of Copyright Protection”:

The Copyright Clause in the U.S. Constitution and the pre-existing rights it secures both arose from a long intellectual and historical tradition that reflected both the importance of economic incentives (the utilitarian argument) and the notion that individuals have an inherent and inviolable right to the fruits of their own labor.  As the Supreme Court has explained, ‘[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights’ is the conviction that:  ‘(1) encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and the useful Arts”’ and (2) ‘[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.’  Mazer v. Stein, 347 U.S. 201, 219 (1954).  Another early decision emphasized that only through copyright protection ‘can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates or the flocks he rears.’  Davoll v. Brown, 7 F.Cas. 197, 199 (D. Mass. 1845).

Accordingly, Doctorow’s proposal violates the central concept that copyright holders possess a natural right to their creations.  Even ignoring the natural right foundation of copyright, however, no other system of copyright protection has resulted in greater utility than our own, given America’s uniquely prolific music industry as noted above.

In addition to violating the fundamental rights of copyright owners to mutually bargain with music platforms, Seth Cooper of the Free State Foundation cogently summarizes how EFF’s proposal doesn’t accord with the obvious realities of today’s music marketplace:

[T]he EFF plan sidesteps the fact that there are several major Internet music service providers and numerous smaller providers.  Popular interactive (or ‘on-demand’) streaming music providers include Spotify, Tidal, Apple Music, Amazon Music, and Google Play Music.  Popular webcasters include Pandora, iHeartRadio, and Deezer.  And there are many others.  SoundExchange reported that some 3,600 webcasting services were operating in 2019.

Importantly, consumer choices also include nationwide satellite radio broadcaster Sirius XM and local AM/FM radio broadcasters.  Indeed, radio broadcasts are widely available through apps on smartphones and other devices.  Additional choices include digital downloads from major Internet music service providers as well as independent and individual artist websites.  CDs and vinyl records are also available at retail.

Given the number of competitors and platform choices, it is highly unlikely that Internet music services possess market power – or the ability to charge consumers above-market prices and otherwise engage in anti-competitive conduct.  There’s no showing of market power here and so the case for government intervention falls apart.” 

Accordingly, the EFF proposal contravenes fundamental concepts of copyright protections, it proposes to reorder a music marketplace that continues to function well for all of its stakeholders and it clashes with contemporary market realities.

We currently enjoy a functional market with innumerable market participants, and copyright owners across the spectrum possess the freedom to negotiate with a wide variety of potential distributors.  EFF’s proposal nevertheless aims to strip creators of the property rights they currently enjoy without justification.  The market simply isn’t broken.  Supporters of EFF’s proposal curiously assert that today’s market is corrupted by monopolies, but as Mr. Cooper sets forth nicely above, a broad global spectrum of potential avenues exist for consumers to freely access as they prefer.

Accordingly, the notion that we should upend a market in which consumers can access an ever-greater variety of music at low cost is an untenable one.

A better option would be for Congress to expand copyright holders’ protections to the sphere of terrestrial radio via the Ask Musicians for Music Act (AMFM Act), to extend what we know works, rather than foolishly venture into demonstrably defective novel proposals.

July 3rd, 2020 at 11:22 am
Image of the Day: FBI Gun Purchase Background Checks Set Yet Another Record High in June
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Confirming once again, as Americans witness the increasing lawlessness around them, that the 2nd Amendment isn’t the anachronism that its antagonists believe:

Background Checks Set Another Record

Background Checks Set Another Record

March 23rd, 2020 at 10:22 am
Trump Administration Stands Up for U.S. Copyright Protections Under Potential South African Threat
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At CFIF, we’ve unceasingly highlighted the foundational role of intellectual property (IP) rights – patents, copyrights, trademarks and trade secrets – in what we know as “American Exceptionalism.”

No nation matches our legacy of IP protection throughout the decades and centuries.  Our Founding Fathers specifically inserted IP protections in Article I of the Constitution, even before the First Amendment or other Bill of Rights protections.

As a direct result no nation in human history remotely matches our legacy of scientific inventiveness, artistic innovation, global influence, power and prosperity.

And today, IP-centric industries account for about 40% of the total U.S. economy, and 45 million jobs – nearly 30% of the U.S. labor force.  For perspective, that U.S. IP economic sector outsizes the entire economies of every other economy on Earth with the sole exception of China.

Recently, we’ve particularly highlighted the role that patent rights play in medical innovation, which has obviously taken on increased importance amid the coronavirus pandemic.  Believe it or not, America accounts for an astounding two-thirds of all worldwide pharmaceutical innovation, due in large part to the IP incentives that allow innovators to receive the fruits of their difficult and costly labor.  That continues today, more than ever.

But in the IP realm, copyright plays just as vital a role in America’s legacy of innovation, influence and prosperity.  After all, just ask yourself what nation today or throughout history even approaches our artistic influence from music to cinema to television to any other form of artistic creation.  That’s the direct result of strong copyright protections for innovators in the U.S.

Unfortunately, other nations not only don’t respect copyright and other IP rights to the degree that we do, they actively seek to undermine U.S. protections.  As the latest example, the nation of South Africa, which hasn’t adequately or effectively protected U.S. copyrights.  And making matters worse, the South African legislature recently passed two proposed laws that further weaken copyright protections and sent them to the South African president for signature.

Fortunately, the Trump Administration is standing up for U.S. copyright and must remain so.

By way of quick background, the U.S. government practices what is known as the Generalized System of Preferences (GSP) program, which allows for duty-free importation of various goods from developing nations that we designate as beneficiaries of the program.  In April of last year, as part of our annual review of GSP beneficiary nations, the International Intellectual Property Alliance (IIPA) formally requested that the U.S. government specifically analyze South Africa’s status under GSP eligibility criteria because of South Africa’s longstanding inadequacy in terms of copyright protection for American copyrighted works.  In October, the administration accepted that petition and commenced a review, including a public hearing that occurred on January 30 of this year.  As the U.S. government rightly reconsiders South Africa’s GSP eligibility, petitioners ask that its legislature reconsider the two proposed bills and remove the defective anti-copyright provisions.

If that corrective action by South Africa’s government does not occur, the U.S. should in fairness withdraw South Africa’s continuing enjoyment of the GSP program’s benefits.

Unfortunately, some groups here in the U.S. seek to undermine American copyright laws, and are acting to pressure the Trump Administration and government officials to give South Africa a free pass.

That mustn’t be allowed.  Our protection of copyright and other IP rights is a primary – if not the primary – reason for America’s unrivaled legacy of innovation and prosperity.

The Trump Administration has strengthened America’s IP legacy after eight years of decay under Barack Obama.  For example, the administration strengthened IP protections during renegotiation of the North American Free Trade Agreement (NAFTA) in the new U.S.-Mexico-Canada Agreement (USMCA).  That included stronger patent protections for pharmaceuticals, as well as higher enforcement against counterfeit copyrighted and other goods.  It is doing the right thing with regard to South Africa as well, and it mustn’t allow domestic or overseas interest groups to pressure it into doing otherwise.

Particularly at a time like this, we cannot allow other countries to undermine our legal rights globally, whether South Africa or others.

 

December 6th, 2019 at 12:41 pm
Members of Congress Stand Up for Property Rights
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In rare but refreshing bipartisan good news out of Congress, Senator Thom Tillis (R – North Carolina) and Representatives Ben Cline (R – Virginia), Theodore Deutch (D – Florida), Martha Roby (R – Alabama) and Harley Rouda (D – California) have just taken a firm stand protecting property rights – copyrights specifically – and merit our praise.

As we’ve long highlighted, property rights constitute a central pillar of “American Exceptionalism,” and that includes intellectual property (IP) rights – copyrights, patents, trademarks and trade secrets.   Our Founding Fathers considered IP so important that they deliberately and explicitly singled it out for protection in the text of the Constitution.  As a direct result, we’ve become the most innovative and prosperous nation in human history.  And it’s not even close.

For that reason, it comes as welcome news that Senator Tillis and Representatives Cline, Deutch, Roby and Rouda recently sent a letter to the American Law Institute (ALI) to question its curious decision to develop what’s known as a “restatement” of copyright law, which Congress has already legislated over years, decades and even centuries.

For non-lawyers unacquainted with ALI, it’s an organization established in 1923 that issues what are known as “Restatements” that summarize common law principles such as contract or tort laws.  Accordingly, Restatements can assist law students, lawyers, judges or other professionals about various legal concepts as a helpful handy reference.

As Senator Tillis and Representatives Cline, Deutch, Roby and Rouda correctly point out in their December 3 letter, however, the ALI has joined too many other organizations such as the American Bar Association (ABA) in undertaking a more left-leaning political and ideological mission in recent years.  None other than Supreme Court Justice Antonin Scalia cogently highlighted that concern, as the letter notes:

The late Justice Antonin Scalia, who was the most frequent author of opinions citing ALI publications in nine opinions, wrote that ‘modern’ Restatements “are of questionable value, and must be used with caution.’  He added that, ‘[o]ver time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.’  In his dissent in Kansas v. Nebraska, Justice Scalia stated that newer Restatements ‘should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendation of any respected lawyer or scholar.’”

Their letter notes that Justice Scalia was not alone.  Rather, “many states have also begun to repudiate the more recent and controversial Restatement projects,” and the U.S. Copyright Office, the U.S. Patent and Trademark Office, the ABA’s own IP Law section and numerous judges and academics have expressed similar concerns.

And as it relates to copyrights, the letter wisely emphasizes that the ALI’s latest effort is particularly inappropriate:

Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI’s interpretations are predisposed to assembly, analysis, and summaries.  By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and the legislative history…  Throughout its almost 100 years of history, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively federal statutory law – until now.”

The letter concludes by expressing concern that the ALI may seek to issue similar questionable Restatements on such areas as patent law, and by emphasizing that copyright law is and remains within Congress’s authority, rendering the sort of action attempted by ALI inappropriate and potentially damaging.

For that important wisdom and initiative, Senator Tillis and Representatives Cline, Deutch, Roby and Rouda deserve our respect and praise.

July 15th, 2019 at 12:18 pm
This Week’s “Your Turn” Radio Show Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM/99.1FM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Phil Kerpen, President of American Commitment: Obamacare, Government Run Healthcare and Health Care Choices;

4:15 CDT/5:15 pm EDT: Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies at the Cato Institute: SCOTUS Wrap-Up;

4:30 CDT/5:30 pm EDT: Beth Akers, Senior Fellow at the Manhattan Institute: June 2019 Jobs Report and Student Debt;

4:45 CDT/5:45 pm EDT: Rachel Greszler, Research Fellow in Economics, Budge and Entitlements at The Heritage Foundation: $15 Federal Minimum Wage and Salary Gaps in Soccer;

5:00 CDT/6:00 pm EDT: John Strand, CEO of Strand Consult and Co-Creator of ChinaTechThreat.com: Trade Deal with China;

5:15 CDT/6:25 pm EDT: Lance Izumi, Senior Director of the Center for Education at the Pacific Research Institute: Breaking the Liberal Monopoly on College Faculties; and

5:30 CDT/6:30 pm EDT: William J. Conti, Attorney at Baker & Hostetler in Washington, DC: Politics Today.

Listen live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

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July 1st, 2019 at 12:13 pm
This Week’s “Your Turn” Radio Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM/99.1FM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.”  Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Lee Casey, Partner at Baker & Hostetler – Return to the Constitution’s Original Meaning;

4:15 CDT/5:15 pm EDT:  Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies at the Cato Institute – SCOTUS Wrap-Up;

4:30 CDT/5:30 pm EDT:  Tzvi Kahn, Senior Iran Analyst at the Foundation for Defense of Democracies – Iran;

4:45 CDT/5:45 pm EDT:  Justin Bogie, Senior Policy Analyst at The Heritage Foundation – Withhold Congress’ Pay;

5:00 CDT/6:00 pm EDT:  Sally Pipes, President and Chief Executive Officer of the Pacific Research Foundation and Thomas W. Smith Fellow in Health Care Policy – Medicare-for-All;and

5:30 CDT/6:30 pm EDT:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – The Latest News from Capitol Hill and the Supreme Court.

Listen live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

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May 6th, 2019 at 2:08 pm
This Week’s “Your Turn” Radio Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM/99.1FM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Ryan Berg, Research Fellow, American Enterprise Institute – Venezuela;

4:15 CDT/5:15 pm EDT:  Kenny Stein, Director of Policy and Federal Affairs at the American Energy Alliance – Electric Vehicle Tax Credits;

4:30 CDT/5:30 pm EDT:  Quin Hillyer, Associate Editor of the Washington Examiner and Nationally Recognized Authority on the American Political Process – AG William Barr;

4:45 CDT/5:45 pm EDT:  Myron Magnet, Renowned Author and City Journal Editor-At-Large – “Clarence Thomas and the Lost Constitution;

5:00 CDT/6:00 pm EDT:  Andrew Och, Award-Winning Television Producer and Author of “Unusual for Their Time: On The Road with America’s First Ladies” – First Ladies as Mothers in the White House; and

5:30 CDT/6:30 pm EDT:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – The Economy, World IP Day and NRA/NYAG.

Listen live on the Internet here Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

April 1st, 2019 at 2:09 pm
This Week’s “Your Turn” Radio Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM/99.1FM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  John York, Ph.D., Policy Analyst, B. Kenneth Simon Center for Principles and Politics – Electoral College and Cyber Insecurities;

4:15 CDT/5:15 pm EDT:  Karlyn Bowman, Senior Fellow at the American Enterprise Institute – Why Does Community Matter?

4:30 CDT/5:30 pm EDT:  Ilya Shapiro, Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute – Constitutional Issues of Interstate Trade Among Marijuana-Legal States, Cato’s Latest “Funny” Brief, and Student Speech in Rhode Island;

4:45 CDT/5:45 pm EDT:  Nathan Lewis, Author of “The Magic Formula” – Making the Case for Lower Taxes and Stable Currency;

5:00 CDT/6:00 pm EDT:  Craig Bannister, CNSNews.com – Special Counsel Robert Mueller’s Investigation;

5:15 CDT/6:15 pm EDT:  Sally Pipes, Thomas W. Smith Fellow in Health Care Policy, President and CEO of the Pacific Research Institute – Why Medicare for All is Not the Answer; and

5:30 CDT/6:30 pm EDT:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs: In the News – The Green New Deal, College Admissions and International Drug Pricing.

Listen live on the Internet here Talkradio 99.1. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

March 4th, 2019 at 3:49 pm
This Week’s “Your Turn” Radio Show Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM/99.1FM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Dr. Lee Edwards, Distinguished Fellow in Conservative Thought, B. Kenneth Simon Center for Principles and Politics, Institute for Constitutional Government: Socialism Today;

4:15 CDT/5:15 pm EDT: David B. Rivkin, Jr., Partner at Baker & Hostetler: Congress and the Investigation of a President;

4:30 CDT/5:30 pm EDT: David Keating, President, Institute for Free Speech: HR1;

4:45 CDT/5:45 pm EDT: Christopher C. Horner, Senior Fellow at the Competitive Enterprise Institute: Multi-State Scheme to Run Private Investigations through State AG Offices;

5:00 CDT/6:00 pm EDT: Tzvi Kahn, Senior Iran Analyst at the Foundation for Defense of Democracies: Iran and President Trump’s Foreign Policy Report Card;

5:15 CDT/6:15 pm EDT: Steve Milloy, Founder and Publisher of JunkScience.com: Bad Science and Paper Receipts; and

5:30 CDT/6:30 pm EDT: Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs: ATT/TimeWarner Merger and Latest on 5G.

Listen to Talkradio 99.1 live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

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November 26th, 2018 at 5:04 pm
This Week’s “Your Turn” Radio Show Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT: Ilya Shapiro, Senior Fellow in Constitutional Studies the Cato Institute and Editor-in-Chief, Cato Supreme Court Review – SCOTUS Happenings;

4:15 CDT/5:15 pm EDT:  Ana Quintana, Senior Policy Analyst, Latin America and the Western Hemisphere, The Heritage Foundation – The Migrant Caravan;

4:30 CDT/5:30 pm EDT:  Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network – Judicial Nominations in the Senate;

4:45 CDT/5:45 pm EDT:  Phil Kerpen, President of American Commitment – President Trump’s Unfilled Presidentially Appointed Positions;

5:00 CDT/6:00 pm EDT:  Craig Rucker, Executive Director, Co-Founder for a Committee For A Constructive Tomorrow (CFACT) – COP 24, The UN Conference on Climate Change;

5:15 CDT/6:15 pm EDT:  Raheel Raza, Clarion Project Advisory Board Member and Founding Member of the Muslim Reformer Movement – Khashoggi Affair and Saudi Arabia-U.S. Relations; and

5:30 CDT/6:30 pm EDT:  William J. Conti, Partner at Baker & Hostetler: Inside Washington – the Trump/Roberts Exchange and the Judiciary and Pelosi/Democrat Leadership Elections.

Listen live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

November 12th, 2018 at 4:24 pm
This Week’s “Your Turn” Radio Show Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm ET: Hans von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies at The Heritage Foundation: On Sessions’ Watch;

4:15 CDT/5:15 pm ET: Lee Casey, Partner at Baker & Hostetler: Detractors Denouncing Constitution;

4:30 CDT/5:30 pm ET: Trey Kovacs, Policy Analyst at the Competitive Enterprise Institute: Veterans Department Ends Labor Union Work on Taxpayer Dime;

4:45 CDT/5:45 pm ET: Tzvi Khan, Senior Iran Analyst: Iran’s Major Human Rights Abusers;

5:00 CDT/6:00 pm ET: Anna St. John, Attorney with the Center for Class Action Fairness at the Competitive Enterprise Institute: SCOTUS Case Challenging Unfair Class Action Settlements;

5:15 CDT/6:15 pm ET: Karlyn Bowman, Senior Fellow at the American Enterprise Institute: Midterm Election Report; and

5:30 CDT/6:30 pm ET: Ashton Hayward, Mayor of Pensacola: Turning Over the Keys to the City.

Listen live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.

September 10th, 2018 at 2:04 pm
This Week’s “Your Turn” Radio Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Carol Greenlee, President and Managing Partner for Business Resource Group LLP and daughter of Charles Greenlee, and Gilbert King, Pulitzer Prize Winning Author of “Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America” – Clemency Review and Pardons for the Groveland Four;

4:45 CDT/5:45 pm EDT:  Dr. Michael R. Strain, Director, Economic Policy Studies, John G. Searle Scholar at the American Enterprise Institute – Workers on Welfare;

5:00 CDT/6:00 pm EDT:  John Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at The Heritage Foundation – Kavanaugh Hearings;

5:15 CDT/6:15 pm EDT:  Leah Byers, Policy Analyst at the Civitas Institute – State Charitable Solicitation Programs and Privacy; and

5:30 CDT/6:30 pm EDT: William J. Conti, Partner at Baker & Hostetler – Mole in the White House, Midterm Elections and Nike/Kaepernick Ad.

Listen live on the Internet here. Call in to share your comments orStudi ask questions of today’s guests at (850) 623-1330.

August 2nd, 2018 at 12:48 pm
Even Leftist Economist and Clinton Administration Adviser Admits Need to Index Capital Gains Taxes for Inflation
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The Trump Administration is contemplating a move to improve the way the federal government taxes capital gains by indexing rates for inflation, which amounts to a de facto tax cut.

It’s a no-brainer in terms of fairness and efficiency, as illustrated by the fact that even leftist economist and former Clinton Administration adviser Alan Blinder acknowledges the need for it today in The Wall Street Journal:

Why index gains?  Suppose you own a stock for many years, during which time overall prices have doubled because of inflation.  Over the holding period, the value of your stock has also doubled.  When you sell, the proceeds have precisely the same purchasing power as the original purchase.   There’s no gain, no loss.  But under current tax law, you owe taxes on the phantom ‘gain.’   Worse, if your stock went up by less than the cumulative inflation, you’ll still get taxed despite your loss.  This is unfair and dysfunctional.”

We’ll admit that it’s amusing to see a man who played the role of cheerleader for Barack Obama, who openly circumvented the Constitution and legislative process using his “pen and phone” to enact policy, demand that Trump refrain from making the change and instead allow Congress to act.  Nevertheless, we’ll gladly celebrate his support for the underlying need for change.

July 9th, 2018 at 5:06 pm
This Week’s “Your Turn” Radio Lineup
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Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Alex Brill, Resident Fellow at the American Enterprise Institute – Unemployment Rate Data:

4:15 CDT/5:15 pm EDT:  John Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at The Heritage Foundation – A Look at Potential SCOTUS Nominees;

4:30 CDT/5:30 pm EDT:  Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review – Justice Kennedy’s Legacy and the Harvard Admissions Case;

4:45 CDT/5:45 pm EDT:  Gayle Trotter, Attorney and Spokeswoman for Judicial Crisis Network – #AnotherGreatJustice and the Confirmation Process;

5:00 CDT/6:00 pm EDT:  Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – The Janus Decision; and

5:30 CDT/6:30 pm EDT:  Travis Smith, PhD, Associate Professor in the Department of Political Science at Concordia University – Superhero Ethics.

Listen live on the Internet here. Call in to share your comments orStudi ask questions of today’s guests at (850) 623-1330.

June 11th, 2018 at 3:02 pm
This Week’s “Your Turn” Radio Lineup
Posted by Print

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm EDT:  Karen Kerrigan, President and CEO of the Small Business & Entrepreneurship Council – Sugar Subsidies;

4:15 CDT/5:15 pm EDT:  Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review – SCOTUS Update;

4:30 CDT/5:30 pm EDT:  Marc Scribner, Senior Fellow at the Competitive Enterprise Institute – Driverless Vehicles;

4:45 CDT/5:45 pm EDT:  Richard Sander, UCLA Professor and Economist – Moving Toward Integration;

5:00 CDT/6:00 pm EDT:  Bruce Herschensohn, American Political Commentator, Author and Senior Fellow at the Pepperdine University School of Public Policy – Singapore Summit;

5:30 CDT/6:30 pm EDT:  Andrew M. Grossman, Partner at Baker & Hostetler – Unappointed Judges; and

5:45 CDT/6:45 pm EDT:   Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs – U.S. Competitiveness Ranking and Arbitration.

Listen live on the Internet here. Call in to share your comments or ask questions of today’s guests at (850) 623-1330.