http://www.canada.com/topics/entertainment/story.html?id=5e3db5f8-9308-437a-82fd-2dd80bc5f65d&k=28296

Scottish singer KT Tunstall, whose debut CD Eye to the Telescope is currently on the charts, insists she's not worried about file-sharing.
"No, not at all," she says. "I have to be totally honest... when I heard about all the downloading problems and when I really thought about it, the only people who suffer ultimately - you know, if everything falls to its knees - are people who can't sing or perform."
"It's the people who actually can't do their job who suffer because if you can't make your money from record sales... I mean, I just know now that no matter what happens - if I lose all my friends and family and the record company spontaneously combusts - I can go out there and take my guitar out and make enough money to have dinner. It's something you feel really grateful to be able to do."

That about sums it up: Artists with actual talent will still be able to make money without copyright, but we'll lose the talentless manufactured bands... seems like a good deal to me.

So it's occurred to me recently that recipes are to cooking what software is to computing: A set of instructions that someone took the time to write out, refine, check, test and finally publish.
Now, according to the Intellectual Monopolists, copyright is necessary to cause creation. And to be sure, the books where recipes are published are in fact copyright. Yet, I would suggest that there is no working* kitchen in the Western World that does not include a photocopy from a recipe book, or a hand-written version, copied out of a book, the book itself long forgotten, and no where to be found.
If, as I suspect, the piracy rate (on a "cook" basis) is essentially 100%, has this caused the cook-book industry to dissapear? Has this caused no new recipes to be written? Has this in fact eliminated the incentive, as the apologists keep insisting? Of course not.
So why do the music and software industries insist that piracy will lead to the death of their industries?

The difference of course, is that there are no real monopoly profits to be had, and this is not nearly so interesting to the mega-corporations that run the software and media industries. They are not interested in merely earning a profit as the recipe book industry does: they want the mega profits that are only possible by monopoly controls granted by the government, and enforced to the maximum possible degree.

*A working kitchen is where people cook ... to be sure it is less likely to find pirated copies of recipes in a kitchen where no one cooks!

Copyright Critics

Invention is defined as "A new device, method, or process developed from study and experimentation".

I'm going to suggest that there are only two rational schools of thought for patents: Either everything should be patentable, or nothing should be patentable. Everyone else either hasn't thought it through, or is dillusional or is being hypocritical.

Historically, patents were awarded for mechanical innovation and invention: a better steam engine for example. I've never talked to anyone about patents who is pro-patent but doesn't think mechanical devices should be patentable. So, Mr. James Watt, an engineer by training, worked to improve a mechanical device and received a patent, and most people think this is quite reasonable.

But what did Watt actually do? He didn't invent or discover either steam or metal. He wasn't the first metal worker, discovering how to shape and work metal. In fact he didn't even come up with the idea of a "steam engine".
What he did do was come up with a way for the steam engine to be more efficient. What he did do was improve on an existing design. What he did do was invent a mechanical process.

So, if we fast forward to today, and a businessman, learned in the ways of business, suggests that he has a novel business process. He doesn't invent the computer, or the internet. He isn't even the first to sell stuff on the internet. What he does do is improve on an existing process. What he does do is come up with a way for online shopping to be more efficient. What he does do is invent a business process: Customers can buy something with a single click. So, how is this less worthy of being protected by patent law?

In another city, a self-taught programmer is working on something new. He doesn't invent or discover colors or mathmatics. He isn't the first computer graphic artist, discovering how to draw shapes on a computer. In fact he doesn't even come up with the idea of a "compressed digital images".
What he does do is come up with a way for the compression to be more efficient. What he does do is improve on an existing design. What he does is to invent a computer process: a way to compress digital images. Again, what has Watt done that the clever programmer didn't do?

In all these cases, someone has designed and refined a process for accomplishing some task: a manner of accomplishing something. There is no fundamental difference between "a way to move a piston using steam" and "a way to serve the customer using a single click" or "a way to compress digital images".
To grant the mechanical engineer protection from competition, while throwing the businessman or the programmer to the wolves is either hypocritical or condescending.
Does the engineer need protection to cause innovation while the programmer and businessman don't?

So, why does this camp exist? Those that insist that patents are good for mechanical devices, but software and business process patents are bad?
Either patents encourage and foster innovation or they do not. If they do, then they should equally encourage the programmer and businessman to make new and better programs and business methods as they do the engineer to make a better engine.
By extension, if software patents are bad for software development, then it stands to reason that all patents are bad. And for the same reasons.

For those that are new here, I sit firmly in the camp that all patents are bad, and the only acceptable "fix" is to begin to dismantle the patent system.
One can only hope that one day history will look back on patents as just another failed experiment, along with communism: Looks great on paper, but it's counter-productive and doesn't work in implementation.

With the recent creation of OIN I can't help but wonder what this will do in the long term. Though I havn't read the entire mission of OIN it did give me an idea. Perhaps we need do nothing to see the end of patents. Perhaps they will take care of themselves as businesses realise that there is more to gain by pooling resources, and allowing free innovation, than by excluding others?
Or am I dreaming?
Apple and Sony* are probably the two biggest examples of closed standards leading to failure. Apple went from (in the order of) 50% market share to under 5% when competing against the open PC market. Sony has a long list of closed devices (players, media, you-name-it) that have been relegated to the history books, while the open (or at least more open) versions have prospered.

Since OSS has spawned (argueably) the most stable (consumer/public) software ever written, and it did it by exploiting the copyright law (rather than trying to eliminate it) perhaps this can be a model for patents as well.
One way patents might be eliminated:

1. A pool of patents that allowed free usage in exchange for adding additions/innovations based-on existing (in-pool) work (like GPL for patents)
2. If then all new ideas were added to this pool, it would be very difficult for others to make something truly new, that didn't infringe on something in the pool.
3. Cross licensing would ensure that all participants in the pool would be exempt from litigation by those outside the pool.
   • Innovation from outside the pool would likely infringe on the pool (and the likelyhood would increase over time)
   • when an out-of-pool patent shows up to sue, threaten with counter-suit, and settle on cross license
   • this provides relief from litigation for those willing to share
4. As this pool grew, non-pooled innovation would be diminished
   • since it becomes more difficult to make anything new outside the pool without infringing
   • and it's easier to innovate within this pool since you are able to work with more existing work (creation is based on all that came before!)
   • and you are protected by the pool.
5. Even if there were multiple pools at the beginning (OSI and OIN...) they would quickly cross-license, and eventually all pools would pool together into the Pool
6. Eventually the bulk of patents would be in the Pool, which would essentially be the same as not having any patents at which point we could sensibly discuss having all patent protections stripped from the law books.

Sure, there's some wrinkles to work out. I'm sure I have not thought of everything. (imho we'd want a GPL, not a BSD style, since this ensures it's own continuation.) Also, it's important for the maximum amount of work to be included, so some sort of guarantee from participants would be necessary. I'm sure that there are a million loop-holes, and someone would Tivo-ise the deal, but that's where a future version could close up the holes some... ;) Hey, we don't get everything right the first time all the time!

*It's interesting that Sony is in fact a member!

(#14943104) If you found a penny on the ground, it would be near impossible for even the most overzealous attourney general to find something to convict you with for spending that penny. But, if you were to find a snippet of code or a line from a song just laying in the street, that's completely different, because even though you're holding that code or song, it really belongs to someone else (this must be that remaining 1/10). Even if there was no name or identifier of any kind to track this back to the actual owner, you are forbidden to use it because even though you have possession of it, it's not "yours".

Yesterday I started a discussion about comments made by Eugene Volokh: The conceptual plausibility of intellectual property on his blog. We continue today...

But some others just come and take the water for free. "This water is nonrivalrous," they say. "If I take the water, I'm not going to interfere with your or your customers' right to use it, nor will I really interfere with any work you do on your land on the way to the well."

It's an interesting example, because it makes very careful use of the error I talked about yesterday:
It is not the taking of the water that is the problem: it is the usage of the well to do that taking. The example very correctly identifies the water as the nonrivalrous resource, but then makes the incorrect assertion that the well is therefore also nonrivalrous. Note that the well is in fact a rivalrous good: only one person may draw water at one time, and the usage of the well diminishes the mechanism of the well.
The correct continuation of this example is that the other farmer is allowed to build their own well, on their land, with their resources to access the (nonrivalrous) water table. If this were how intellectual property worked there would be no problem.

Unfortunately, the correct continuation for intellectual monopoly is as follows: Because my well was first, and I registered it with the local authorities as "the well", you are prohibited from building your own well on your own property with your own resources to access the (nonrivalrous) water. Furthermore, if you want water, it requires that you pay any sum* I see fit for water. Better still, if it occurs to you to make flavoured water (not something I offer) the only way to get the water is from me: forcing you to pay me**. Should you decide that you don't want to purchase my water, and decide to design, build and construct your own well, I will have the local authorities stop your construction and ask the courts to give your land to me as punitive damages.

It gets worse. Not only does my well stop the immediate neighbours from building a well, I then find out that others in the next village have also built a well. Since my well was registered as "the well" it excludes all others from building wells. I again approach the local authorities and have the other wells closed, and against ask the courts to award punitive damages. Though they may protest that they've never seen my well, and that it was only obvious to dig for water (they saw a stream flow out of the ground!) it doesn't matter: My well is "the well" and trumps all others.

This is the truth about so called intellectual property which in truth is an intellectual monopoly.

*Every business tries to maximise profit. There are typically two constraints: Demand and competition. If we eliminate competion, then the business is free to set a very high price! This is called a monopoly.
**Assumes that I will even sell you the water for this purpose, I might not. Furthermore, I might price it higher, either completely eating all of your profits, or possibly even more than all of your profits. Even if I have no intention of selling the new flavoured water, I have a monopoly on the source: the water. The end result is that the consumer may lose choice. In this example, IP directly decreases, not increases innovation!

Today I would like to start a discussion about comments made by Eugene Volokh: The conceptual plausibility of intellectual property on his blog.

The analogies between tangible property and intangible property are indeed fairly significant.

Yes, and no. The problem most people have is that they confuse my copy of my idea, with your copy of my idea. Intellectual and physical property analogies typically discuss the idea as the property - not the copy. Through either careless or intentional use of ambiguious terms, and referring to the idea, but then making examples using the copy, it is possible to make compelling arguments that patent and copyright are just an extension of physical property laws.

the right to exclude is usually necessary to make the right to use work -- if others could use your car without limit, there'd often be times when you couldn't use it.

And this is where the typical pro-IP arguments begin to fall apart. My using my copy of your idea in no way stops you from using your copy of your idea. So when they talk about excluding, what they are really saying is that while I use my copy of a car, you are somehow prohibited from using your copy of your car?

In particular, copyright and patent are treated as property because, like property in land or goods, they are (not unlimited) rights to use a work or an invention, plus (not unlimited) rights to exclude others from using it.

The problem is that the "it" doesn't refer to the copy of the invention - the reference is to prohibit all use of physical property in a way described by the invention.
What is really interesting is that IP rights trump physical property rights. In other words, copyright prohibits me, in my house, using my paper and my pen from writing specific series of words.
There is no physical property equivelant of this.
Physical property laws protect my house, my pen and my paper from others using it - it does not probit all others from using their pen and paper in their house simply because I have pen and paper.

...continues tomorrow

Tyler Cowen argues that the fact that a lot of musicians end up with no money (as seen in the link in his post) is an argument for copyright.

He's wrong on the simple basis that the Record Company made $700,000 in the equation. The point is that there was money made - more than enough to pay the producer. They may even pay some legal fees, but a lot of the other expenses that were incurred are because of the copyright system and simply disappear without it.

You can not look at a system, change one component and expect everything else to remain the same. The current system (as abhorent as it is) was arrived at as a balance based on the current laws. Change the laws - change the balance.
This new balance will not include recording companies earning millions - that money will go to artists.

To ensure the maximum satisfaction in our cup of coffee, it is accompanied by the following:

By buying this IP Coffee (the "PRODUCT") you accept the following conditions:

The PRODUCT is non transferrable. It may not be sold, assigned or given to any other party.
You may not share or describe the PRODUCT to any other person.
The PRODUCT must be consumed within the first 15-minutes of purchase. Amounts of PRODUCT that are unconsumed after this period must be returned to an authorised IP Coffee retailer for disposal. Unconsumed amounts may not be disposed of by any other method. There may be a disposal charge and you agree to pay any associated charges.
The purchase of this PRODUCT constitutes agreement to purchase an additional PRODUCT within twenty-four hours. Failure to make additional purchases will constitute a serious breach of contract.
You may not fabricate or have fabricated anything that resembles in any of, but not limited to, taste, texture, temperature, consistency, presentation or other modes of identifying the PRODUCT.

You are assigned the right to enjoy the PRODUCT in any manner which does not displease us too much. And we might change moods several times. And you accept all future revisions of this agreement. In Advance. Now send me more money.

Read this.
by Michele Boldrin and David K. Levine

While businesses complain that they are losing money in the information age, I don't see them doing anything creative about their problem.
All I see is legal actions: law suits and protectionist lobbying.
As a public service to these poor uncreative companies I will begin a list here of alternate business models as I find them. Sure, any random model won't fit any all requirements, but some model just might be better than bankruptcy. I welcome suggestions in the comments, and will post them up into this journal entry if I like them. This page is therefore always in a state of ongoing editing...

GAMING

• Sell Subscriptions. This is already done in the form of on-line gaming (like World of Warcraft)

• Sell hardware not software. Gaming controlers or other specialised physical world artifacts that are either outright required to play the game, or are helpful to play the game.

MEDIA

• The Long Tail

Early in the 21st Century, innovation in Amerika had basically stalled. Everything was either patented or copyright. The few truly new innovations invariably at least partly infringed on various copyrights and patents. The resulting royalty demands meant that many new ideas were left unreleased for legal reasons.

The human race though, is not just one country, not just one governance and not ruled by Amerika.

Other countries saw the road that Amerika was following was dangerous. Promises to respect patents were quickly forgotten once countries decided it was no longer in their interest to honour them. So while companies controlled and stymied innovation in Amerika, sciences flourished elsewhere.
The social and scientific revolution that had profited Amerika for over one hundred years was drawing to a close. Artists and scientists could no longer work in an environment where new ideas and new works could not be based on the works of those that came before. Those that didn't work for large corporations, those that wished to explore their own creativity and those without teams of lawyers were persecuted by the corporations. The corporations had tremendous clout, and they squeezed the noose tighter, forcing all to either join a corporation, and research only as directed, or to leave Amerika.

Many of the brightest and most talented simply left.

This served only to enrich the other nations further. While Amerika stagnated, embroiled in legal battles where only lawyers profited, other nations began to innovate. New medicines were created, and existing ones were shown harmful. Artists were free to express themselves. Technologists created ever more powerful computers and software. None of these things were available in Amerika. They were all illegal, and persons caught with patent infringing works were jailed.

But Amerikans are rich and resourceful people. All these things served only to drive people underground, and create a black market for 'freedom goods', as they had become known. People took holidays in countries where ailments could be treated better and at a lower cost using treatments that were illegal in Amerika due to patent rights.

For many who didn't want to leave, innovations were published in foreign countries under pseudonyms. Ideas were readily accepted and expanded upon by others. It was proof positive that the patent system in Amerika was not required to promote innovation. Patents tried to fix something that wasn't broken. To be creative is human. All creations in history had been made without patent protections. Patent protections also didn't stop independent creativity: The creative simply moved or hid. They either physically left, or simply sent their ideas. In days gone by these same people had flocked to the promise of a free Amerika. A place were they could work without persecution - now that dream had moved elsewhere.

After the Patent Wars of the early 21st century, large parts of the world cut off from each other. Diplomatic relations were strained, and sanctions were imposed by the developed nations.
The problem was that countries had refused to acknowledge that Intellectual Property of Amerika should be protected in their country. Many of these countries felt that there was a higher duty to ensure that their people had access to ideas and technologies to better their own lives. Sure, some had played along for a while, but when it came to protecting their interests they made it known that they were soverign nations, and would not allow any other nation to set policy. For some there was threat of war, for others relations were severed.
Meanwhile in Amerika everything was patented until research ground to a halt. Rich corporations decided what ordinary people could do, say and even write.
Story patents had been reduced to such basic levels that any new story could be found to conflict with the basis for a patented story.
Medical research ground to a halt as most of the best therapies operated at the genetic level and all the genes and DNA strands had rightful owners.
Computer codes were patented as sequences of numbers, as well as the source code. This meant that any new algorithm that the compiler optimised might still result in patent infringement. Worse, judges had been known to allow for 'partial matches' in the numeric sequences, if there was also some overlap in functionality.
Music was patented much like story lines. Beats and rhythms were patented, note combinations and words in songs, until only artists hand-picked by the rights-owners could produce 'new' music.

The largest department in any organisation was the Legal Department. Every action, every interaction, every publication, every decision that any company made had to be sent through Legal.
In the pre-industrial days, labour had been the largest cost of production and retailing. With the advent of machine-based production labour costs plummeted. Materials and transporation costs were easily the dominant cost factors. History, however, repeats and labour was again the dominant cost component: the combined legal costs of the manufacturer, distributer, shipper and retailer was for many proucts close to half of the retail price.
That prices had increased faster than inflation while direct manufacturing costs had decreased was something that most people didn't want to talk about.

The C-nome Corporation has a patent on the DNA strands proven to be related to cancer. No product that treats cancer at the genetic level can be sold in Amerika unless they pay a royalty to the C-nome Corporation.

There's really only one treatment available, since the royalty demanded is rather large. A couple of private companies sell the treatment, but it's no cheaper: I've heard that 90% of the price you pay them is royalty. C-nome says all the money goes back into research.
The treatment is a long and painful process, taking many years and costing millions of dollars. But who can put a price on life? Sure, only the rich and those with very good medical insurance plans can afford the treatment, but still - C-nome researched this and made it possible.
My friend has cancer. He can't afford the treatment, so he's going in for the old fashioned chemo. The idea that we try and kill someone more slowly than the thing that is killing them is a crazy idea; but that's all he can afford. In a day and age when gene therapies are widely available it seems weird to use old fashioned treatments, but that's life.
I tell myself that these things have to be patented, otherwise there just wouldn't be any new innovations. And innovation is expensive. If C-nome needs to charge a premium it's because they need to get a return on their research, and they are working on new treatments. We can only thank the C-nome Corporation for what they've created and stop complaining. Of course the treatment is expensive, but like I said: who can put a price on your life? Isn't it worth spending every dime you have to keep living?
I've heard some people say that there are better, cheaper, faster and less painful treatments using the patented genes. I don't usually get involved in that kind of talk. I had heard, though, that a scientist down south had finished a simple one-day procedure. He claimed that it cost only a few thousand dollars and was 100% effective in his initial testing ... he was of course arrested and is awaiting trial for patent infringement. I can't believe this would work. Clearly if it worked, C-nome would be selling this new treatment instead. People would save millions of dollars, insurance premiums would plummet. It would have to be some kind of conspiracy to keep this innovation from humanity if it were true. Surely the C-nome Corporation wouldn't put it's billions of dollars of profits ahead of the pain and suffering of the human race?