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The Almighty Buck

Against Arbitrary Intellectual Property Rights. 170

Somnus writes "This essay is as well-composed an argument I have seen opposing today's conception of copyrights and patents. " Its long, but it looks good.
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Against Arbitrary Intellectual Property Rights.

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  • by Anonymous Coward
    Often times the drug companies directly benefit from research carried out in the university and research hospital system -- the Government (*we*) give them patents on products largely derived from public funding.

    Further, the system is skewed towards coming up with the most convoluted (synthetic) means of solving a problem. Companies spend *extra* money to create synthetic versions of compounds because the version found naturally can't be patented. For this and other reasons, aspirin would have a difficult time getting FDA-approved in today's market. St. John's Wort, which is just as effective as Prozac for mild depression, is only in the US under the "nutritional supplement" category. What other simple and effective remedies are we missing out on because an FDA influenced by the drug companies won't allow them in?

    The fact that drug companies feel compelled to *advertise* for prescription medication should be a clear indicator that they are trying to create markets for drugs, rather than filling a real societal need. Penicillin didn't need ads in Time and Newsweek. I've got nothing against them making a buck, but the drug formulas they're now peddling should be treated like trade secrets (like the formula for Coke or Pepsi) and shouldn't get extra protection under the law. Allegra and Claritin are really *brands* more than they are scientific inventions.

    On the other hand, if there is a real medical need for a product, how ethical is it to grant exclusive rights (monopoly) to one company when the normal rules of supply and demand do not apply? If Pfizer or Merck find the cure for AIDS or cancer, does everyone simply have to pay their price (particularly since public money laid most of the groundwork)? What about the other extreme, when those who need the drugs aren't a large enough pool to make it worth their while? In this case the Government is again footing the bill for most of the research.

    I can see some of the arguments both pro- and anti-IP (and one should distinguish among copyright, trademark, and patent), but much of the supposed benefits derived from the drug industry as it stands today come from Government and University funded R&D, so it would be just as well if it were all in the public domain.
  • by Anonymous Coward
    The article was very good, but left out one important aspect - the religious. This goes beyond the ethical argument but is the basis of it, and strangely allows an atheistic interpretation because atheism also is a religion.

    What is the source of knowledge? Throughout history knowledge has been attributed to God, whether that be a mystical God within us all or some deity outside who lays down a plan or even the God of chaos. The point is that knowledge is not a commodity which which is a property of any individual or group. Even a complete materialist could argue that human knowledge might arise through some evolutionary/historical process wherein one individual's discoveries are only possible because of what has gone before, and this even applies to the capacity of an individual to make discoveries. Such talents are allowed by genetic combinations and environmental influences. It's all the same thing. The individual "creator" did not really create and does not have any exclusive claim to the work.

    The greatest artists and scientists have said as much in their own words. Bach, Mozart, Newton and Einstien immediately come to mind, but the list is endless. They were very humble about their own roles (though arrogant about other things) as "discoverers" or "listeners" upon the shore of knowledge - not creators. They didn't regard themselves as creators or regard their works as "properties".

    It is not unreasonable for those who create or discover knowledge to derive financial benefit through the payment or royalties for copyrights and patents. But these should never be restrictive. It's the restriction and ownership of knowledge (including the specific expression thereof in a set form such as a book or piece of music), not the payment of a reasonable usage fee to living authors, that is utterly evil. Even so, I seriously doubt that any artist or writer or scientist who was or is worth a damn has been motivated primarily by the desire to gain immense financial rewards through the claim to ownership of said works as property. This also applies to scientists and engineers working for large corporations in heavily funded group efforts. They are motivated primarily by the process of discovery because it is fun or challenging, and the corporations funding them are motivated primarily by the need to develop and produce better products, not by the secondary benefits of restricting the use of ideas by competitors.

    I have read some of the comments on this article and past ones about this topic, and I tire of the same old defense of intellectual property - that programmers might go hungry without intellectual property rights to their code. In fact only a tiny minority of programmers makes any money in this way - through the sale of shrink-wrap software or proprietary software of any kind. The vast majority of programmers and software develoopers work for patrons - corporations, universities, clients and customers who pay for their services, not for exclusive rights to market or license their work. Does anyone really think that there is any relationship whatsoever between the originality and value of the code and the obscene profits derived by a tiny handful of software companies like Microsoft? Get real!

    There are laws, and there are higher laws. Divine law or natural law is higher than laws made by nations (excuse me, by corporations which own legislators who make laws for nations). I think every individual will honor the highest law he is capable of percieving. For the real mystic, this is evident. For the atheist, it may be an intellectual conviction about how the universe evolves as a natural system. Both are higher in the scale of things than the foetid corruption of American legalism taken to the extremes for the benefit of a parasitic lawyer/legislator class and few of its wealthy clients.

    There is no need to make this very simple concept complicated, as lawyers do. In such cases it is best to go by one's feelings or intuition, backed up by clear thinking, not nitpicking. Do you really feel that the code you create is your own creation, or something that you discover and which is only possible because of the work of others who have gone before? And, do you want your work to be some "property" to be limited by claims to ownership, or something vital which gives back to the pool of knowledge from which it originated? It is what kind of person one is that determines his or her answer to that question, and no amount of petty legalism can make it otherswise.

    So, sue me and be damned!
  • by Anonymous Coward
    Imagine a world without copyrights.

    There's still contract law, though: two people can contract to do anything legal. If I've written some interesting book and I'd like money for it, and I don't have copyright law to back me up, I'll just offer a contract: for $6, you can buy a copy of the book, with the stipulation that you're not allowed to give/sell a copy of the information to anyone else (unless, in the process, you get rid of the copy of the information that you've bought).

    You could own the physical book, and it could sit on your shelf, but you wouldn't own the information inside of it; not in the sense of being able to do with it as you please.

    So eliminating copyright law doesn't do anything; it just changes the way in which I make a profit from information I've produced.

    Copyright law is better. Yeah, the length increases are just an abuse, but the copyrights *do* expire after a time, they're simpler than having to draw up contracts all the time, and the way in which everything's handled is relatively uniform; I'd hate to have to deal with a different license per work.
  • by Anonymous Coward
    I cannot imagine why writers continue to question the need for IP in modern society. The fact is that IP is absolutely essential for the progress of technology. Do you think that Merck is going to invest several billion dollars per year into the development of new drugs without the assurance that they will have the ability to recoup their investment? Drugs are highly expensive to develop, but relatively cheap to manufacture. This is true of much of technology today. The idea of a lone inventor working in a garage coming up with an important boon to society is a really rare exception today. Real R&D costs big time, and companies will not pay for it if they cannot have some sort of assurance that it will benefit thier bottom line.

    Not to mention the issue of 'trade secrets'. The authors of this article fail completely to examine the contract between the inventor and government that patents represent. The concept of patent in modern law is simple - it is a contract between the government and the inventor. This contract gives that inventor exclusive rights for a period of time for commercial rights for a product. In return the inventor fully discloses the nature of his invention, that is makes his knowledge available to all. WITHOUT PATENTS INVENTORS DO EVERYTHING POSSIBLE TO KEEP THEIR INVENTION SECRET. History is full of examples of this, and it is proven the lack of this dissemination of knowedge slows the rate of progress in a modern society.

    Certainly, with any law or set of laws there are negative affects as well. But the simple fact of the matter is that IP laws are a long-proven spur to the development of technology that improves the quality of life of all mankind.
  • by Anonymous Coward
    If it didn't exist, I wouldn't write books. Really, for some people, that's their livelihood; you'd have to come up with some other mechanism for supporting them. Maybe no one should be a full-time author? Maybe there could be government subsidies? Blah; give me copyrights; let *me* choose how my work is distributed, instead of discriminating against me just because the cool things I create are easy to copy.
  • Ah, yes. Scientists never shared information before patents. All those mathematics journals and mathematics conferences dealing with non-patentable material are an illusion. Prior to the introduction of copyright law during the Enlightenment, no scientific progress occurred. Obviously the great Greek literature and scientific writings must have been forged.

    Your blanket assertion that "no one is going to want to share" without intellectual property is ludicrous. What are you a scientist of?
  • The leading quote by Hayek points out one of the problems with people like Rand. Namely, she made her money via royalties on copyright and so has a vested interest in the current system.

    BTW: I'd like to point out that there are people (including libertarians) who object to the current scheme of private property in land as well. (I'm one of them, though not a libertarian). Libertarian notions of property are based on people have the rights to the fruits of their own labor. Land, however, is not the fruit of anyone's labor. Nobody created the land. It is the free gift of nature. In practice, virtually all land title derive from conquest and arbitrary territorial claims resting on no clear legal or ethical principle.
  • Pareto optimal only means there is no way to make someone better off without making someone else worse off. 100% to me and 0% to you is pareto optimal.

    It's not my intention to present the definitive argument against absolute property rights in land. What I will say is that property is a bundle of rights and that those rights can be unbundled. Someone can have exclusive possession of land without having absolute ownership rights (as we currently definte them) over it.

    While the current system might put land in the hands of people who are willing to pay the most money for it, that does not actually mean society is better off as a result. Many people desire to hold land for speculative purposes rather than putting it to productive use. Many very valuable (and potentially useful) pieces of land in vacant for this very reason.
  • by Aaron M. Renn ( 539 ) <arenn@urbanophile.com> on Wednesday May 12, 1999 @08:42AM (#1895616) Homepage
    The problem here is that copyright holders already use contracts to attempt to strengthen their stranglehold on a product. You are correct that one could view copyright as simply a "standard contract". However, software companies routinely enclose license agreements that go far beyond the rights they would have under copyright. For example, prohibiting bechmarks or disclaiming warranties. The copyright holders seem to want the best of both worlds. They want to use contract to bind their "legitimate" users and copyright to bind everyone else. In fact, in the case of software the author can have various powers over the users via contract, patents, copyright, trademarks, and trade secrets! It's a wonder there's anything left over for the poor user.
  • Posted by hopless case:

    Yes, if I buy a book that is copyrighted, I have implicitly agreed to not violate the copyright.

    Now suppose I start making copies and distributing them without any copyright notice attached, in violation of my implicit agreement.

    The people I distributed the copies to are under no agreements whatsoever with anyone, yet copyright law would allow the copyright holder to act against them, forbidding them from using the contents of their own heads, once tainted by a copyrighted work.

    This is what the author is referring to when he talks about how there is no way you can own information without owning other people. The copyright holder has no agreement with the people I gave copies to yet uses the government to punish them.

    By your agreement theory, the only person the author should be able to punish is me, not innocent people I happened to communicate with.

    So IP is not equivalent to contracts and agreements.
  • Posted by hopless case:

    Bookwyrm wrote:

    Um. So? Why should innocent people be punished? I missed something there.

    Bookwyrm:

    Well, I don't think they should be punished, but clearly they have to be if you want to have IP be meaningful. Hence I conclude IP should not be meaningful.

    If you don't punish the innocent, they get to use copyrighted and patented info without restriction because they never agreed to the copyright.

    I am just pointing out that you can not fashion an IP system out of agreements and contract, and any IP system has to have a provision to punish the innocent.
  • Posted by hopless case:

    If I might butt in here, I would have an ethical problem copying the book in that instance. But suppose someone else in that situation copies the book, then gives me a copy with no restrictions, and the original author comes along, finds me, and asks me to give him the copy back.

    I, being such a nice guy, probably would give him the copy back, but there is no ethical problem with not giving it back because I had no agreement with the author, unlike the person who borrowed the book from the author and gave me a copy.
  • Posted by The Masked Miscreant >:):

    According to US patent law, though, "mathematical" "inventions" -do- have special status: that of not being patentable. So, you just say "my patent is for using the following mathematical formulas for the specific purpose of X, on any computing device".

    Then, (if you're RSA data labs), you say that you'll sue anyone who uses ANY mathematical formula in ANY context to do the same sort of thing. (RSA claims that their patent gives them rights to ALL PK crypto)



    Well, if "...any computing device" is the gist of their patent, then it does give them rights to ALL PK crypto. After all, the human brain is a computing device of one sort, so even if you reduce the process to pencil and paper, the patent still covers it!
  • >This article isn't very well thought out, but I thought one part was interesting - where he said congress is EXTENDING COPYRIGHT to a century after the authors death for the sake of establised publishing companies.

    I for one would contribute to the legal defense fund for anyone who would challenge these extensions on the basis of unconstitutionality. The Constitution grants the power to establish IP protections "for a limited time". 100+ years is in no meaningful sense a limited time.
  • >How much do you think the cost of development would be reduced if drugs were cooperatively
    developed, instead of in secrecy?

    The thing is, there's nothing stopping people now from cooperatively developing stuff, except economics. You don't have to restrict others with IP law, it's just that self-interest is the way to get most people off their butts and working. Let's face it, there's plenty of things that need doing that no one would ever choose to do without being paid for it.

    Not knowing the particulars, it's possible Wankel would have come up with this engine without IP, and Mazda might have funded it's development. But I think it's more likely Mazda funded its development simply because they thought it would pay off, so with no IP, you would never had heard of it. Given a choice between waiting 17 years for the patent to expire and not having the Wankel engine at all, I'll take the former.
  • I have to agree that most of the arguments in this article were not well formulated. I did have an issue with the one regarding Shakespeare. It isn't that much of a stretch to see someone attempting to patent a plot sometime soon. People have been trying (and succeeding?) to patent business models lately. Why not patent a storyline model? (The obvious argument against that would be based on prior art... someone would have to come up with a new plot... doesn't seem real likely to happen... at least not in Hollywood. ;)

    All in all, though, I don't think the article said much that was worth reading. The last article on IP that was posted Monday was much better.

  • Long writes
    Is it credible that publishers will not bother to publish uncopyrighted works, for fear that a rival publisher will break in and ruin their monopoly? Not very. Nearly all works written before 1900 are in the public domain, yet pre-1900 works are still published, and still sell.
    But publishers still claim copyright. This has long been a bone of contention among singers of medieval, rennaissance, and classical music. From my own recent reqertoire, some examples:
    Haydn,
    The Creation (1799)
    page ii:Copyright 1991 Oxford University Press. All rights reserved...this publication may be reproduced, stored, or transmitted in any form or by any means with the prior permission in writing of Oxford University Press.
    Vivaldi,
    Gloria(1708)
    Copyright 1961 by Walton Music Corporation. All rights reserved...
    Handel,
    Messiah (1749)
    Copyright 1959 by Novello & Co. No part of this publication may be copied or reproduced...
    Huh ?? All of these should be in the public domain by now.

    Case-law says that they can copyright the editorial markings, etc., but that they must identify just what is copyrighted. They do not. They claim copyright for the whole thing.

    IMNHO, they are fraudulently abusing copyright in order to maintain a monopoly by threat of copyright-litigation terrorism. The penalties for this sort of fraud should be at least as severe as the penalties for other copyright infringement -- and in assessing the sentence, every cpoy published should be counted toward determining the severity of the sentence.

    To be fair to music publishers, not all of them seem to do this -- Kalmus and Schirmer don't seem to, at least judging by the (several) copies of works they've published that I have copies of. Which further establishes Long's point: Kalmus and Schirmer don't find this sort of litigation-terrorism necessary in order to survive!


  • I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.


    That's a straightforward matter of contract; the notion of intellectual property doesn't enter here.


    The summary of this transaction is:

    1. You offer me valuable consideration (information that only you possess) in exchange for valuable consideration (my not making the information available to some other party without your consent).
    2. I accept the terms offered.
    3. You execute your side of the contract by giving me the information.
    4. I violate the terms of the contract by giving the information to someone without your consent.

    This is a straightforward contract violation, for which you can sue me. The amount of damages awarded would be whatever a judge or jury deems appropriate compensation for your loss of value.

    The notion of implied contract with sale is interesting (and could in principle be enforced by requiring explicit agreement, although that might be unworkable -- an example of choosing between different "licensing" alternatives that offer different costs to the producer). However, that isn't the same thing as a copyright; under that system, if I legally hear a piece of music that I have not specifically agreed not to "copy", I can do whatever I like with it.


    This kind of contract is more like a nondisclosure agreement, which is relatively noncontroversial. The problem is that the default rules governing information give the original producer rights that have nothing to do with contract between consenting individuals.


    Note that nothing here is suggesting that you may not keep information secret -- it's just that you shouldn't have a default claim on it if you do choose to release it.

  • They saw a valid bit of research, and ignored it when they couldn't use it. Then, they turned around and used it when it became advantageous.

    That seems more likely in this case. The more interesting case is artificial sweeteners. I notice that the two favorite sweeteners of the past cyclamates sacarine (I have no idea how to spell those) became reviled for causing cancer about the time a new (and freshly patented) sweetener was available, and MUCH later, the original research was refuted.

    That really isn't an IP issue though, it's more an issue of corruption and ethics surrounding IP

  • By "information is a universal" the author does not mean that information is everywhere. This use of the term "universal" is a slightly obscure philosophical use. A better word for the same thing might be "an abstraction" -- something which is not concrete and physical, but abstract and mental.

    A piece of information, considered apart from the medium upon which it is recorded, is an abstraction. That's what copyright is granted for. However, by definition, abstractions don't exist in the physical world -- and unless, as the author says, we accept Platonic Formalism, they don't exist at all, any more than perfect circles do.
  • by Frater 219 ( 1455 ) on Wednesday May 12, 1999 @08:46AM (#1895631) Journal
    If you accept the Constitution's argument, then copyright (in the U.S.) is not founded on a "natural right" but rather on what is known as a consequentialist argument. That is, the Constitution does not say "Copyright is granted because it is a natural right of authors to control their works" but rather "Copyright is granted for the purpose of promoting progress."

    Given this argument, one can then argue that copyright and patent are only justified insofar as it actually does promote progress, and that in those cases where it inhibits progress, they are not Constitutionally justified.

    Hence, if it could be proven in court that a particular granting of patent or copyright was inhibiting progress in the relevant field, it would not be unreasonable to overturn the patent or copyright, simply on the grounds of not being Constitutionally justified.

    (Note that this assumes strict Constitutional constructionism, aka strict enumeration of powers -- the doctrine that the Constitution specifies the powers of the Federal government, and that the government has no legitimate powers which are not expressly granted to it. The last strict constructionist on the Supreme Court was Justice Hugo Black, many years ago, who actually had the daring to say that when the Constitution says "Congress shall make no law..." it actually means NO LAW.)
  • ...eliminating copyright law doesn't do anything...

    The point is not that how could life go on unchanged irrespective of copyrights, the more interesting question is what useful could happen if this (or any) form of the intellectual property wouldn't exist?

    Imagine another revolution similar to the Linux phenomenon; maybe if forcing to appear that the works are still copyrighted is much more effort than simply letting the "works" live their own life? Just like now, you download Debian, you like it, and you will purchase the next version on CD, or send donation to the FSF to help matters. Hard-copying a book is still not easy, but getting all paper information electronically stored, analyzed without caring for artificial "rights" could open unprecended possibilities. You still could fund your favourite writer/poet/programmer in several ways; abusers would still look bad.

    When complete libraries can be stored on a device worth a few bucks, life would be much better if the price wouldn't be inflated thousand-fold; life (mine, yours, everyone's) could be easier, things could be more reachable. Maybe school-like education institutions could prove useless too.

    Hmm.. another smell of the revolution of the coming years :)

  • The other important economic argument for IP is that it provides an incentive for research. The idea is that there would be much less research if inventors/companies could not profit from some kind of exclusive rights to their invention. I believe that there is some merit to this view, but the problem, in many cases, is that the policy is very badly implemented. According to the logic of this argument, the incentive is supposed to be there to stimulate extra creativity. Giving patents for methods that any engineer would have thought up the first time she addressed a problem clearly fall short on this criteria. And this type of problem is compounded when the officials responsible for granting patents do not have an adequate technical background to evaluate the true originality and creativity of an idea. Also note that since this economic argument is purely pragmatic in nature, it should be vulnerable to pragmatic objections in general - i.e. if it doesn't serve society well to grant a particular kind of exclusivity privilege for 20 years, then the privilege should be for less time or not at all.
  • It doesn't eliminate my objection because my objection is that the implementation of patent granting principles by the government is poor, and doesn't fit the justification for the laws. You seem to be agreeing that the implementation is poor and saying that it would be too expensive to have an adequate implementation. I would counter that, to the extent that it is expensive to insure "unobviousness", then the govt. must react by being more conservative in their granting of patents. That is to say that they must place a greater burder of proof on the patent seeker, before they go and restrict other peoples rights/access to the protected object/activity. That just seems like common sense.
  • I'm not in a position to evaluate the correctness of what you claim regarding corporate propaganda against medical marijuana and freon. Let's say for the sake of argument that everything is just as you say. This still doesn't seem like strong examples against IP because the root problem is not IP per se, but rather corporate power to spread false ideas through the media and manipulate government. Unless you are advocating the removal of IP as a primary means of destroying large corporations, it doesn't seem like IP is closely relevant to the problem. There will be lots of motives for corporations to lie, persuade, and buy influence that are dangerous and have nothing to do with IP.
  • RSA on the otherhand is still (by my limited understanding) state of the art crypto

    I'm sorry, but I can't let such a blatantly wrong statement slide without refutation. At least you admit ignorance on the matter.

    RSA is trivial. Downright trivial. Let me illustrate. 2^5 = 32 mod 35 and 32^5 = 2 mod 35. Though you may not realize it, those two simple equations encrypt the message "2" using the RSA public key (35,5) and decrypt the encrypted message "35" with the private key ((5,7),5). Even if you don't understand the mathematics, please realize that RSA was discovered in 1977, filed for patent in 1978, and patented in 1983--way before any of this streaming audio stuff. To those in the know, a patent on RSA is every bit as abhorrent as a patent on the law of gravity.

    And lest you think the RSA patent has had a beneficial effect on this world, you should note that the RSA patent single-handedly prevents any free software implementations of SSHv1, SSL, or PGPv2.6.x in the United States. RSA code is but a triviality compared to any one of these major software projects. I dare say the RSA patent has done as much to impede the widespread distribution of cryptographic software as US export restrictions.

    If you're still not convinced, then nothing will convince you. The RSA patent has not by any means been a beneficial force for useful technological progress.

  • Although the author of the article went overboard in wrongly stating that patent law prevents construction of levitation devices, you also go overboard in implying that patents only prohibit commercial exploitation of an idea. While preventing commercial exploitation of ideas is the goal of patent law, the US implementation of patent law falls far short of this ideal goal. Indeed, US-style patent law does in fact prevent you from mass producing a patented device for any use, not just commercial use.

    Allow me to illustrate with a particularly pointed example. You claim that patents cannot be granted on laws of nature. Yet the RSA patent in the US is exactly that: a patent that covers a mathematical idea. Don't let RSA Data Labs fool you into thinking RSA is esoteric or state of the art. RSA is just raising numbers to exponents for encryption and inverting the operations for decryption. I wager that anyone who's studied mathematics will agree with me that RSA is as natural a property of this universe as the law of gravity.

    Because of the RSA patent, I am not allowed to run any free software SSL web server on my computer for my own personal use. I am not allowed to run any free software implementation of SSH on my computer for my own personal use. I am not allowed to use any free software implementation of PGP 2.6.x for my own personal use. In all these cases, if I want to use the program in question, I must link it against RSAref, which is not free software. Had RSAref not been published, I would have no recourse at all--I would be forced to write my own implementation of RSA, without sharing the benefits of any of the free software implementations already available in the world.

    So, cast aside the admittedly ridiculous saber tooth tiger argument. How do you refute this one? How can you possibly claim that the societal benefit from the RSA patent outweighs the loss of freedom described above that the RSA patent inflicts upon millions of Americans today?

  • But the recognition of what that truth is, what parts of it are interesting, and the presentation of that truth are all creative acts.

    I concede that the discovery of the RSA algorithm is a creative act. I do not agree with your implication that because it is a creative act, it is therefore patentable. Indeed, as you well know, all creative works are copyrightable, but not all copyrighted works have patent protection.

    So the question before us is, given the benefits and costs to society of allowing algorithms like RSA to be patented, should we allow them to be patented? I argued in my last paragraph that the answer to this question is no--that the freedom lost to millions of Americans is not worth the commercial gain that RSA Data Labs derives.

    If you do indeed agree with the initiator of this thread, that the RSA patent is "a good thing," then it can only be because you value the public's freedom less than one corporation's profits. Keep in mind that this position puts you in the minority: Of all the nations in the world, the US stands alone in permitting software algorithms to be patented. Yet I do not see any evidence that the patent position of the US has increased the pace of software development in this nation relative to other nations. If you have evidence of such an increase, please let me know!

  • I have reservations with your definition but I will work with it. Even accepting your definition, RSA is not by any stretch of the imagination "state of the art."

    Alternatives to RSA include El-Gamal/Diffie Hellman (currently used by OpenPGP and SSHv2, and supported by SSLv3). It is interesting to note that in all three cases, the need to avoid the RSA patent was a primary motivation for the switch to DH.

    Now you may think that RSA must be superior to DH because it was discovered later. That's not the case. If you read the PGP-DH-RSA [clara.net] FAQ, you'll find (question 8.1) that the consensus among experts is that DH is possibly better, and not worse, than RSA from a security and practicality standpoint. Also note that the El-Gamal variant of DH was discovered after RSA (in 1984) and never patented.

    Perusing through the same document, you'll find a reference to how elliptic curve cryptography, now being researched, appears to offer the same level of security as RSA with much smaller key sizes. The only reason EC cryptography is not yet mainstream is because researchers have not had enough years to thoroughly thrash it for possible holes.

    In conclusion, between Diffie-Hellman (in use now) and elliptic-curve based methods on the horizon, there are most certainly alternatives that are set to displace RSA. Moreover, as noted above, DH has already displaced RSA in many major applications of public-key cryptography. Therefore, RSA is not state of the art.

    Given this new information, do you still defend the RSA patent as "a good thing" for society? I'd like to know.

  • IP laws (in the US anyways) were designed to promote innovation in both industry and the arts.
    Others have cited the constitutional basis so I won't repeat them here.

    In this area, they have been surprizingly effective. In industry, IP laws have served to
    level the playing field between small and large companies. Although many ./ reader tend to think
    of the impact on individuals, the real effectiviness of IP laws is to prevent large companies
    from dominating small companies in techinical areas that require a strong pace of innovation.

    Just think how hard it would be for the internet to progress if IBM/AT&T/BBN/Berkeley/DOD were the
    only people working on it? The fact that IP protection is granted allowed capital intensive
    businesses (like SW development and IC development) receive the funding pursue new and innovative
    technical advances. Without such protection, small companies would no be able to fund their
    ideas and their ideas could be stolen by larger companies which could torpedo them to prevent
    competition. This happens today with IP protection, imagine how bad it would be w/o...

    On the artistic side, aren't things better off if talented people could spend their time improving
    our culture by the development of artistic things than working only in their spare time.

    I think that many people can agree that there are some benefits to IP law. Let's now look at another
    benefit that is not at all obvious. IP law helps to keep the people who play to both continue to
    contribute and to play fair.

    In industry, patents are routinely violated until someone complains. If someone complains, a cross
    license is usually obtained. This tends to make it so that to play the game, you have to bring
    something to the table. It's all about fair play. If you don't have anything to bring to the table,
    nobody want you to play. The only time people change money is when somebody's stuff is more
    valuable than someone elses stuff. That's life, if your stuff isn't that valuable, you get less.

    Of course there are injunctions and seemingly oppressive royalties, but I think these are rare
    except between direct competitors. In the US anyways, damages for patent violations are limited
    so there really isn't any way to charge oppressive royalties. In addition, most patents are deliberately
    vague so the holders don't want them clarified by submiting them to a court (which would happen
    if you actually brought the case to court). For real players in the industry, they usually have
    some patents themselves that are valuable or necessary and reverse leverage is easy to apply.

    So in reality, things are not at all as bad as some people make them out to be. Sure, 20 years
    is too long for the internet, but I think this is a temporary situation. When radio was first
    created, a flurry of patents ensued. Then when things got too complicated, patent pool companies
    were formed. The formation of patent pools essentially eliminated the patents from the game.
    Since everyone sort of paid them, they eventually just became a tax on the industry.

    Many economists agree that this is the only way a complex industry can remain stable so these types
    of things signal the maturity of an industry. When an industry is growing fast, patents help.
    When growth stabilizes, patents hurt so companies are motivated to pool the patents to take them
    out of the game and to provide an industry wide defense against people who don't play fair.

    Companies that don't want to play fair will now have to work against this huge patent pool that
    is controlled by multiple companies all of which have some sort of veto power. That means this
    rogue company probably can't cut a side deal with one of them and screw everyone else. This is why
    big conservative companies join the pool: mutual defense.

    The IC industry is heading that way. Although almost everything is patented, almost all the
    "standards" are royalty-free licenced for those companies willing to cross-licence necessary
    patents for implementing the standard also for free. If you play fair, we play fair...
    The fact that a patent exists is now immaterial since it is presumed that if you want to play, you
    will contribute any "required" patents that you hold to the pool.

    The SW industry will probably head that way eventually too. Open source is only an indication
    of what is to come. Patent pooling (either for free or with a uniform "tax") has happened in all
    big industries. Patent pools for companies is similar to the Open Source idea. Companies contribute
    to patent pools to strengthen the industry against other companies that don't play fair. Companies
    will eventually contribute to Open Source to guard against companies that don't play fair.

    I consistenty surprizes me when people claim that "today" things are really different and the old
    rules don't apply, when they don't even know what happened in the past.

    Home electricity, the radio, the telephone, the car, the television, the VCR. Just look at the
    history of these inventions before claiming that the old rules just don't apply anymore...
  • Without copyrights there would be no reason why somebody couldn't take an article, modify a few
    words so as to make it appear the author had the exactly opposite viewpoint, change the name
    slightly post it somewhere and sit back and laugh...

    Or steal a 1/2 finished work from somebody, finish it quickly and publish it before the original
    somebody got the chance.

    It is clear that there are parts of the copyright law that are useful, that don't benefit the
    distributors, but the original author/creator.

    But of course, the time span of the copyright is directly related to the amount of money that can
    be made which is (somewhat) related to the amount of money that the original author would receive.
    (if someone stole everything you wrote and it got published before you could finish, I think there
    would be a slight impact on the amount of money people would pay you...)

  • By your agreement theory, the only person the author should be able to punish is me, not innocent people I happened to communicate with.


    Um. So? Why should innocent people be punished? I missed something there.

    IP rights are not the same things are copyright or patent laws -- those are (perhaps questionable) implementations. The way I am interpreting IP rights are merely that one can treat a certain piece or instance of information as being subject to handling constraints as set forth by the originator. I am just stating that one can create IP rights, or a reasonable facsimilie, through contracts and agreements.


  • I am just arguing differently from the author of the essay that IP rights are a government created priviledge. I am making the claim that one can create a (perhaps reasonable with some luck) implementation of IP rights through the use of contractual agreements.

    You are correct that under such a system that if you legally hear a piece of music you haven't specifically agree to, you can do what you want with it. If this was the only system available, I suspect that contracts would be made with the distributors/broadcasters/etc. of music such that your odds of listening to music without having had passed some sort of agreement would be minimized.

    (The ultimate contract is, perhaps, the laws of the country say this is so, and if one wishes to live under the laws of the country, one agrees to them. Otherwise, one has the option of living in another country without such laws. While it is perhaps unfortunate that one cannot choose the country one is born into, that is just a happenstance of life that one can only do so much about.)
  • Who's forcing you to buy anything?

    If I put a jar of candy out on my desk and say, "If you enjoy a piece of candy, please contribute 5 cents." You may steal the candy of course, but I would say that is unethical. (Even if you claim that candy is not-ownable, or common, or cheap, someone has still gone to the effort to make it available to you in this instance.) You may choose to ignore the sign, take all the candy you want, etc., then still claim to be ethical. Other people may or may not agree with your definition of ethical. If I set a book on the shelves, stamp it with a copyright notice, and put a sign out saying, "If you would like to read a book, please buy it and not copy it." is there a difference? (Assuming in neither case is anyone or anything forcing you to eat a piece of candy or read a book.)

    This is not a matter of law. There could be no laws governing the above situations (i.e. no property laws or no copyright laws.) This is a matter of ethical consideration -- someone has put forth effort to make something available, and has indicated that they would like an exchange in return. One may rip them off if one wishes.

    YMMV.

  • So if an author wrote a book and said to you, "I spent five years writing this, and I produced this hard copy. If you would like to read it, please buy it and promise not to copy it." you would have no problems lying to the author by agreeing to the terms and then copying it?
  • The copyright notice on the book *is* the author asking you not to copy the book. If the author did not mind, the author could release it into the public domain -- the copyright notice is indication that the author did not release into the public domain.



  • Is there an ethical relationship, however? Beyond that, when one checks out that book, and the first thing listed inside the cover is the copyright notice, does one ignore it, agree with it, or return the book to the library unread? Most libraries I have seen have nice, big signs over their copiers reminding people of copyright issues and fair use. Out of curiosity, when one receives their library card or access, did it come with a list of rules of use of library materials, like copyright issues? If so, they have agreed upon use. No one is forcing them to read the material.


  • by Bookwyrm ( 3535 ) on Wednesday May 12, 1999 @07:57AM (#1895648)
    An interesting essay. It makes a statement that Intellectual Property rights are a 'monopoly priviledge granted by the government.' (Assuming for the sake of argument that monopolies are inherently bad things, and that governments can actually grant priviledges -- more accurately, the government restricts others.) If one believes that IP exists wholly as a government illusion, very well.

    I am not sure I rather agree with the argument that information is universal. If everyone knew everything, we would not be in this situation, would we? Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones. If creation is merely a process of discovering bitstreams/numbers, there is still an element of effort in that process -- if everyone could create (not the same as duplicate) any piece of IP trivially, then this would also not be an issue, but not everyone can. As far as the statement of "You cannot own information without owning other people." goes, that is rather stretching things. If I were to own a piece of IP, say, a piece of music, does this automatically give me total control over everyone who hears it? Ridiculous. Depending on the IP right stance taken, though, it might credit to me control over what they do with the IP they have received from me -- which is not the same thing as owning them completely.

    I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.

    If a person pays money for a piece of music, writing, video, etc. that is marked "copyrighted" than that should be regarded as an implicit agreement, an implicit contract, to abide by the copyright laws. If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! One may try to pursuade others to not use or make copyrighted material, or argue against the concept. It may very well be that IP rights are not 'rights' (i.e. inherent and/or universal,) but even if so, they are trivially fashioned out of mutual agreement between consenting parties, existing as a social construct, perhaps as a legal contract construct -- the only way to not have IP is to prevent people from making agreements between each other! The tyrrany that would prevent individuals or groups from doing such would be a sight to see indeed.

    One may claim that if I have thought of a piece of IP, then I should not restrict distribution of it, as it is a universal (sic) thing. Fine -- you think of it for yourself then, if it universal -- you do not need someone else to tell you what you already know.

    (Note the above does not touch on patents, just copyright. Patents are not justified by the above as there is no implied contract between two simultaneous independent creators, or independent duplication.)
  • Imagine a world without copyrights. There's still contract law, though ... [ and the result is the same just with less hassle ]
    this is a common misconception.

    the important difference is third parties: if person A signs a contract with B, but then A violates the contract and posts the information on the internet, and C downloads it and gives a copy to D.

    now under copyright, B & C are criminals. but with contracts, only B has violated the law and their on word.

    the difference is critical.


    information is free.
    the only question is:

  • The "open ource movement" is mainly characterized by copying other people's good ideas. Innovation have never been one of the strong points of the open source movement. OSS takes existing products and tries to rebuild the wheel, albeit a politically correct wheel...
  • Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. ...one should apply this thought to the patenting of gene sequences, etc.! Too bad, though. Should I try to get my DNA sequenced so I can patent it? I've thought about that, and wish it was feasible to. That a company can patent part of me and a bunch of other people implicitly is bothersome... Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts. ...but the problem is is that patents are being granted on ideas, i.e., the *concept* of a perpetual, self-winding watch, not a specific implementation. OK, one could argue that a self-winding watch is just a specific implementation of an escapement-based, mechanical time-keeping device or inertial motion micro generator powering an electrical quartz watch... but, see the point? Would we have wrist-based PDAs if someone at, say, Commodore Electronics had patented the *idea* and fuzzy implementation details of the first LED-based electronic watches (or TI, or whoever), and said patent was still in place?
  • Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. ...one should apply this thought to the patenting of gene sequences, etc.! Too bad, though. Should I try to get my DNA sequenced so I can patent it? I've thought about that, and wish it was feasible to. That a company can patent part of me and a bunch of other people implicitly is bothersome... Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts. ...but the problem is is that patents are being granted on ideas, i.e., the *concept* of a perpetual, self-winding watch, not a specific implementation. OK, one could argue that a self-winding watch is just a specific implementation of an escapement-based, mechanical time-keeping device or inertial motion micro generator powering an electrical quartz watch... but, see the point? Would we have wrist-based PDAs if someone at, say, Commodore Electronics had patented the *idea* and fuzzy implementation details of the first LED-based electronic watches (or TI, or whoever), and said patent was still in place?
  • Not to mention the issue of 'trade secrets'. The authors of this article fail completely to examine the contract between the inventor and government that patents represent. The concept of patent in modern law is simple - it is a contract between the government and the inventor. This contract gives that inventor exclusive rights for a period of time for commercial rights for a product. In return the inventor fully discloses the nature of his invention, that is makes his knowledge available to all. WITHOUT PATENTS INVENTORS DO EVERYTHING POSSIBLE TO KEEP THEIR INVENTION SECRET. History is full of examples of this, and it is proven the lack of this dissemination of knowedge slows the rate of progress in a modern society.

    ...but this is sort of a red herring argument. What about companies that do not patent things they've invented until they're ready to release a product made on the idea, so as to not tip their hands to competitors until they have a warehouse full of product to ship? What of industrial espionage?

    Reality is full of counter-examples to this poster's argument justifying current IP that would exist whether or not there was our current IP scheme.

    Let's look at a sillier IP situation: The NBA and the scores of its games. The NBA was suing companies providing live scores of NBA games through such things as pagers, etc., claiming that the score of the game (which is just information) was IP of the NBA, and the companies doing this were distributing this information/IP w/o license from the NBA, and it should be stopped.

    I think the NBA actually prevailed on this one, but correct me if I'm wrong.

    Or the efforts that Priscilla Presley, or the estates of any other dead media figure, go to to try and restrict how the images of the dead people get used...
  • >There's still contract law, though

    There is a principle in law with some obscure
    Latin name that states that one cannot give up
    basic rights in a contract. You cannot, for
    example, sign a contract allowing someone to
    kill you...it's still murder if they do it.

    With "rights" defined (implicitly) as they are
    in this essay, your right to use information
    would be on par with your right to life - such
    contracts would be unenforcable.

    And this is not a bad thing. In such a world,
    authors are paid by information brokers for the
    rights to get their works into the market _first_,
    the price of a work declines as more and more
    distributors pick it up, and if you want a quality
    hard copy you contract with some publishing house
    to print and bind one for you - most of which
    would likely make it a feature that they support
    the original author, the same way Red Hat supports
    open source software. Authors are still
    compensated - not to the ridiculous lengths that
    people like Tom Clancy, Michael Crichton, or
    Steven Spielberg are used to - but much more in
    line with what _most_ producers of intellectual
    work actually make in the real world. The
    monopoly removed, such works will float to their
    natural value in the marketplace - with vastly
    more derived works generating even more value for
    more authors into the bargain. That's the
    fundamental point in this essay.
  • I don't buy this. Property rights are a method
    for regulating access to scarce resources. Anyone
    bypassing such regulation is committing some form
    of coercion against the owner of that resource,
    hence is violating their rights, i.e. committing
    a crime. That does not apply with information,
    information is not a scarce resource, the fact
    that I have a piece of information and you acquire
    it (by whatever means) diminishes me in no way.
    All it can do is diminish the worth of the
    information in question, something that was
    granted by monopoly power in the first place.
    Information itself has no value since it is not
    a scarce resource. In short, no right has been
    violated, I have not been harmed. Only by
    granting me a monopoly allowing me to control
    YOUR acquisition of MY information - even post
    facto - does information acquire market value -
    and it does so at the cost of YOUR freedom to
    use what is already in your head. It grants me
    rights to control your speech, a coercion - and
    anathema to Libertarians (or should be).

    As for your contention that there would be no
    movies, I have to point out that by this same
    logic there would never be world-class server
    operating systems for free, either. Linux is
    an object proof that large projects can come
    into being without intellectual property support.
    Quite bluntly, there are more man-hours invested
    in Red Hat or Debian than in any movie - or even
    in a whole trilogy of them. That Linux was done
    one way and Star Wars another is simply a
    consequence of their environments: Star Wars was
    done that way because that's the only way we can
    do movies today. Linux was done its way because
    we had a choice - and Windows had already shown
    us how the other way worked.

    This same argument applies in even more force
    back the other way. You think Star Wars was
    good? How good COULD it have been had it been
    done openly? Perhaps as good as Linux is compared
    to Windows?

  • How many different software licenses do you operate under?
  • Real R&D costs big time, and companies will not pay for it if they cannot have some sort of assurance that it will benefit thier bottom line.

    This argument is born more out of selfishness than out of logic. Just because you spend a zillion dollars digging a hole in the ground does not confer upon you the right to find gold at the bottom of it.

    Schwab

  • ...if one asks for and receives permission to create derived works from the copyright holder.

    Quite a bit of the issues regarding fan generated derivative works can easily be resolved by just asking permission. This may be difficult to do if the original work is owned by a large faceless corporation. But individuals and small companies are often willing to grant permission to creators of derived works.

    I recently used a copyrighted image in a logo I created for my web page. I assume it's enough of a derived work to constitute fair use, but I still asked for (and received) permission to use the image. The copyright owner was just happy to be asked!

    Asking for permission is not that hard to do. And if more individuals did it, it would be much less of an issue.

    Yeah, you'll probably have lots of trouble getting permissions to publishing fanfic based on the latest Star Wars movie (unless LucasFilms is a lot more cluefull than I give them credit for). I doubt George Lucas cares much about what Joe Random Geek has written based on his movie. But I am fairly sure that his lawyers care. Maybe that is a good reason to evaluate what one is a fan of...

  • Whilst its a while since I studied or read Shakespeare, I definitely remember that whilst Shakespeare wrote many original words, a huge slice of his stuff was been pretty much directly plagiarised. often wholesale scenes and longer sequences (but not entire plays).

    This wasn't unusual for Renaissance writers. But then they didn't have the notion of copyright. The work was still original because as a whole it was new.

    Today of course, it would have been considered a derivative of these source works and under copyright.

    The GPL essentially confers the rights Shakespeare took for granted, whilst preventing direct plagiarism. But only, at the cost of destroying the replication of those same rights by any other route: we can't go back to the ways of the Renaissance (think of it as lost innocence). :-)
  • While kings once granted monopolies to printers, copyright is quite a different beast, and one that is hardly related at all to royal grants to printers.

    Copyright is based on the principles that

    • once published, information is free
    • encouraging broad publication requires a short-term grant of property rights to the publisher

    In effect, this means that the originators of copyright like Emmanuel Kant had the same basic belief as Richard Stallman of "copyleft" fame: that information wants to be free. And it's that principle that makes copyleft acheivable, and puts the lie to the "abbreviated" history that Mr. Long has quoted to prejustify his conclusions.

    Mr. Long could not legitimately conclude that copyright (freedom of infomation) should be replaced with civil law (perpetual ownership of information) if he knew or cited the real history of copyright.

    See also The Atlantic magazine Life Liberty and the Pursuit of Copyright" [theatlantic.com] for a non-revisionist view and a spirited debate on the subject, and Wired magazine, The Copyright Grab [wired.com] for an essay on (Mr. Long's preferred?) initiative to eliminate copyright.

  • The fact that drug companies feel compelled to *advertise* for prescription medication should be a clear indicator that they are trying to create markets for drugs, rather than filling a real societal need.


    Are you only referring to TV ads? Bear in mind that a lot of what gets lumped under "advertising" for prescription medicines is really education. The companies send out salesmen to spread the word to doctors that their product exists, and to teach them when and how how the medicine is supposed to be used. If the companies did not do this, the word would not get out nearly so quickly that medicine X is better than medicine Y under Z conditions.

    Jon
  • I agree that fair use should be extended, particularly in the case of fanfic where no profit is being made. I do however think that the creator of the original should have the right to object to a copy of their work which is sick or just embarassingly done.

    The big thing about fanfic vs. parody is that parody is a comment ABOUT the original work, whereas fanfic is more like an extension of the original, and could concievably be mistaken for work by the original creator if it was well-executed (several April Fool's jokes on rec.arts.anime come to mind).

    If everyone were able to knock out cheap ripoffs of other people's works, it would be very hard for people with only a passing knowledge of the work to sort out the originals from the copies.

    What I'd like to see is a system where creators can choose to ignore fanfic if they see fit, without giving up their copyrights. This is how things work in Japan (as I suspect you know). It lets fans publish fanfics, though it's well known that they are distinct from the original, and the companies generally shrug it off as free advertising. Publishing fanfics turns out to be a good way for up-and-coming artists to ease into turning pro.

    Jon
  • I read a really interesting article in Free China Today magazine a few years back about Taiwanese comics. It turns out the the Taiwanese market was flooded with pirated copies of Japanese comics.

    Obviously, this wasn't benefitting the Japanese creators, but that's not my point.

    What was happening was that the TAIWANESE comics creators were being CRUSHED by this setup. Pirate merchandise can always be cheaper than legitimate merchandise because you don't have to pay the creator. Thus, the pirated Japanese comics were all much cheaper than the legitimate Taiwanese equivalents. Given a choice between a good comic that costs 5 bucks, and a good comic that costs 10 bucks, most consumers will buy the $5 comic, even if it's a pirate. So the Taiwanese creators couldn't sell their books, and had trouble staying in business.

    Obviously, it was the lack of IP law enforcement in Taiwan that was screwing the local creators. So those of you who like movies, books, comics, or whatever, think twice before getting rid of IP laws.

    Jon Acheson
  • At Melbourne University a couple of weeks ago, RMS gave a lecture on his views on copyright and
    IP (well, not really on IP - a concept he believes carries many assumptions he does not make).

    His view was basically that copyright originally existed to promote the authorship and printing of books, rather than to protect property
    rights of authors. However, as has been obvious in recent times, copyright has been turned into a mechanism to protect large corporations (eg Disney, an example he enjoyed using repeatedly).

    His view on software copyright is already known, of course, so I'll just explain his view on non-software works:

    • All restrictions on private, not for profit copying should be removed immediately.
    • Copyright should be restricted to a more
      realistic period - 10 years
    • Longer term, it might be worth examining
      micropayment and other emerging technologies to further reform copyright.

    Undoubtedly in my attempt to briefly summarise
    his argument I've missed many of his key points.

  • I kind of agree with you. The article added no new concepts, nor did express known concepts from a novel perspective. Stupid may be too extreme of a word, but I agree there was little that was presented which was of interest.
  • Only the Win 32 API, which has a patent to expire long after Microsoft comes out with its next API version.

    I'm not aware of any patents on the Win32 API, in fact there are several clones such as Wine. One of the problems with the Microsoft APIs is that they are difficult to understand and use and nearly impossible to clone. Microsoft has a hard enough time with this, and they have the code, experts, and money. I read that currently Win2K is having a hard time running a lot of existing win32 software.
  • You can patent inventions, not discoveries

    You should note that the relevant section in the Constitution uses the words "Writings and Discoveries", not inventions.

    Use of the word "invention" is promoted because in most people's minds it implies (wrongly) that the "invention" would never have come to be without that particular act.

    I have worked in the area of mechanical engineering and design for many years, and have found that many of my designs (or "discoveries") that I arrived at completely independantly were later found to have been covered by a particular patent.

    It should also be noted that finding that your "invention" is already covered by a patent does not necessarily prevent it from being used in your product (with or without permission). Instead, the relative strength and funding of the two parties legal staffs is the most important factor.
  • The flip side of this is that in a patent driven R&D environment, there is a strong incentive to suppress non-patentable discoveries or inventions.

    Take medical marijuana. Marijuana is, among other things, a strong anti-nausea drug and an appetite stimulant. (The "munchies" in the vernacular.) A side effect of many chemotherapy and AIDS medications is nausea and loss of appetite; to the point where the patients waste away and die, not due to the illness, but due to the inability to obtain nutrition.

    Many of these patients are discovering that smoking a small amount of marijuana can relieve their nausea and stimulate their appetite to the point where they can eat, hold down food, and gain weight. The drug also has the additional calming side effect that makes it popular as a recreational drug.

    A serious problem is that marijuana is a naturally occurring plant, and is not patentable. Therefore, no drug company is willing to spend the money required to obtain FDA approval of natural smoked marijuana as a drug.

    In fact, the drug companies (along with the liquor and tobacco companies) spend a LOT of money every year to demonize marijuana and keep it illegal. Their front organization is the "Partnership for a drug-free America" -- and they are MUCH less interested in stopping "drug abuse" then they are in suppressing the use of non-patented drugs that don't bring them profits.

    The result is that people are being arrested and sent to prison, for the crime of using the only drug that they can find to keep them alive, because the drug is "unapproved" by the FDA, which is really an oversight organization for the pharmecutical companies, who would stand to lose a LOT of money were marijuana rescheduled into schedule II or III (where it arguably belongs.)

    http://www.marijuananews.com does a good job of tracking the medical marijuana issue.

    Another possible IP issue is Freon. There are people who make the case, with various levels of credibility, that Freon does NOT cause ozone damage (It's 4 times heavier then air -- how does it rise into the upper atmosphere? ... It has never actually been detected in the upper atmosphere ... the "Ozone hole" is a natural phenomenon, and expands and contracts naturally, etc ...), and that the real reason that Freon was banned was because the patent was about to run out. Once the patent reverted into the public domain, any company would be able to manufacture and sell freon, thus ending DuPont's monopoly. DuPont, so it is claimed, pushed for the ban on freon, and at the same time introduced a new line of "freon substitutes", with fresh patents. It will be interesting to see if, about 20 years from now, it is "discovered" that these new refrigerants cause environmental damage, and must be pulled from the market.

    If you're interested, try a web search on "freon" and "fraud", and be prepared to wade through a lot of "New World Order" rheteric to get to the point.

    My last example of the powerful damage done by IP law is the ever increasing length of copyright, done at the request of the most powerful corporations. Last year, the entertainment industry unleashed a propaganda campaign, claiming that all of Disney's copyrights on Mickey Mouse would run out shortly, and calling on congress to "rectify" the "problem" by extending copyright protection for another 20 years.

    Once a popular film falls into the public domain, it can be picked up, restored, and released by
    anyone. The reason that "It's a Wonderful Life" became one of the most popular holiday films was mostly because the copyright lapsed, and it fell into the public domain. (Somehow the copyright owners re-obtained copyright, and as a result, it has mostly disappeared from television.)

    Film collectors and distributors are sitting on vaults of old silent movies from the beginning of the 20th century. Many of these films are considered classics, and once these films fall into the public domain, IF EVER, they will be available to anyone and everyone to reproduce and distribute. Right now these films are unreleasable, because the copyrights are still active, and copyright royalties make their release impractical for the small-time operations that would be publishing public-domain material. The problem is that old films deteriorate, and by the time Congress regains its senses (if ever) and stops extending copyright protection, these films will be lost.

    My point is that we are paying a heavy price for the benefits of patents and copyrights.

    - John


  • However, that isn't the same thing as a copyright; under that system, if I legally hear a piece of music that I have not specifically agreed not to "copy", I can do whatever I like with it.

    I think there's a bit of confusion between hearing something, and using it. "Hearing" something (created by someone else) infers nothing with respect to what one can and can't do with it. How can you "do whatever you like" with something to which you have no claim of ownership?
  • Arguably, hearing music infers a lot with respect to what one can and cannot do with it.

    After thinking about this, I agree with your point - to the extent that the inference is based on the legal foundation of copyright. That is, after hearing a song, you cannot, whether or not you have an explicit agreement with its creator, copy it, distribute it, take credit for it, or reap any kind of material gain from it.

    You are correct in asserting that the song has been "assimilated" by you, once you have heard it. But I wholly disagree with the notion that this process of assimilation infers any right to copy what you have heard. Let me also state, though, that a song can unquestionably serve as an influence for some other musical creation. It's not uncommon to hear one song that bears some similarity to another, but this is a different matter entirely.

    Such a relationship is at least ownership. Either I own my mind and body, or I have a stronger relationship with my mind and body. Any law that denies this natural fact is as bogus as a repeal of gravity.

    I don't think I'd argue that you have ownership of your own experiences (i.e. hearing a song). I would argue, however, that you should have complete freedom to use these experiences as justification to re-package or distribute the creative work of someone else.
  • I wish we could experiment with varying levels of IP protection to see what worked best. I'd like to see a 20 year experiment in having no IP protection whatsoever (except possibly for trademarks) to see what would result.

    Of course, 20 year experiments by definition take a long time to run, and the potential economic effects could be very widespread.

    Does anybody have any hard evidence to back up what kinds of protections work best for fostering innovations? I know hard evidence, politics, and philosophy often don't mix, but... :-)

  • "Another possible IP issue is Freon. There are people who make the case, with various levels of credibility, that Freon does NOT cause ozone damage (It's 4 times heavier then air -- how does it rise into the upper atmosphere?" Most components of air are either heavier or lighter than "air"--nitrogen is slightly lighter, CO2 heavier. In the case of Xenon, it's 4.5 times heavier than air, yet the atmosphere's composition is substantially similar throughout. If you release a heavier than air gas (For instance, by mixing vingegar and baking soda), it will sink and form a layer--but only temporarily. The atmosphere is very turbulent place throughout, and currents and entropy are more than enough to distribute it. Here's a simpler explanation for DuPont's timing, one that does not involve conspiracies. They saw a valid bit of research, and ignored it when they couldn't use it. Then, they turned around and used it when it became advantageous.
  • Compared with garden-variety contract law, copyrights restrict people's freedom to make money off of intellectual property.

    For example: let's say I record a song, sell all my rights to it for $5,000, and then watch in dismay as my studio rakes in millions from it. Under section 203 of the Copyright Act, I can recover my copyright from the studio after thirty-five years. That's not "Internet time," but if my music is selling after all those years, it's better than nothing.

    Another example: decades ago, many books and records were sold on the condition that the buyer not resell them. This way, publishers hoped, anyone who wanted a copy of a popular book or record would be forced to buy it new. These restrictions were thrown out by the courts.

    There are many other such loopholes in copyright law; I hope one of the legal eagles here can provide more examples. Software comes with these absurd shrink-wrap licenses because commercial software companies want more control over their product than a plain copyright allows.

    What would happen if conditional-sale contracts replaced copyright, and if US commercial law followed libertarian principles of sanctity of contract? We would see books and CDs decorated with legal restrictions, as publishers try to wring every last dime possible out of their audiences.

    So if Roederick Long wants to object to copyright on libertarian grounds, his objection is totally backwards. He should be complaining that copyright law is unfairly permissive, not that it is unfairly restrictive.

  • imagine Joe Blow bought the book and signed the contract saying he wouldn't distribute the book. Then say without his permission I photocopy the book. He didn't distribute the book and I now have a copy. I never signed any contract so the author can't legally do anything to punish/stop me.
    The publisher could include a clause in the contract holding Joe Blow responsible for the cost of any illicit copies that could be traced to him.

    Imagine what distributing The Phantom Menace would be like under such a legal regime. A pirate edition could cost studios immense $$$, and studios wouldn't be able to sue the pirates directly. So every single person with access to the reels of film would have to accept liability for illicit copies. If you didn't have much money, the studio wouldn't want you to have access to the reels at all, unless someone else (your employer or a bonding agency) were willing to accept liability on your behalf. Of course, this means that moderate-income people with access to the reels (e.g., projectionists and couriers) would be screened and personality-tested and watched up the wazoo, lest they expose their employers to massive lawsuits. Every reel, screenplay copy, etc., would have to be watermarked, so that illicit copies could be traced.

    How much more would ticket prices cost, to cover all this security?

  • by Th0th ( 15289 ) on Wednesday May 12, 1999 @08:13AM (#1895675) Homepage
    I've never really flamed before... and admittedly, the subject for this message is a bit harsh... but still.

    The arguments he made... especially in the "ethical" section were poorly formulated, and lacked a basic understading of the bases of intellectual property.

    The author opined that if he purchased a book, then he should have rights to reproduce and trade that work, because flow of information and knowledge cannot ethically be stopped. He missed the point that copyright does not affect free flow of knowledge, but of a specific adaptation of that knowledge. (e.g., If you buy a book full of telephone numbers and addresses, you cannot simply copy and sell that book, because it would be a violation of copyright. Not because the telephone numbers and addresses are copyrightable, but that specific organization of those phone numbers and addreses are. Thus you are allowed to sell lists of that information, just not in the same format or using the same method of organization.)

    Again, the author opined that if he memorized a poem, and reproduced it from his memory with his own pen and paper, he should be able to publish and sell it. This is also absurd, where did he memorize the poem from? How would he have created it had the original poem not been published.. this is, of course, not his work.

    Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts.

    Again, with his preposterous sabre tooth tiger argument, patent law does not prevent an individual from building a patented device for his own personal use (like to levitate him out of the pit to save his life), it does however prevent a corporation from taking an years of research from someone who came up with a patented device, mass producing it, and using for its own profitable enterprise without a penny of gratutde to the researcher.

    As for the examples given of Bach and shakespeare, there is the fair use doctrine. Shakespeare did not callously steal the story of romeo and juliet verbatim from the original author, he did however make fair use of the a general plot line and wrote his own prose to tell this story. This goes back to the idea of it's not the information that is copyrightable, but the adaptation of the information.

    I've ranted long enough, I personally am against a lot of ip, I think software patents are stupid (for reasons I will not go into) and I think many corporations have taken patent law and copyright law a bit too far... but this article left me feeling like I wasted my time reading it, and although I spent more time than I should replying to it, maybe I'll save other peoples precious time by telling them not to bother with it.

    ------------------------------------------------ --
  • there are far more uninteresting numbers than there are interesting ones

    It was proven on sci.math that there are no interesting positive integers. Here is the proof reductio ad absurdam. Assume that there are interesting positive integers. Let n be the lowest such integer. So what? QED.
  • Someone who runs a web site that makes expired copyrighted material has already challanged the extension in the Federal Courts. Look for a decision in a couple of years. IIRC, the argument is that the new law is unconstitutional because it amounts to the taking of public property for private purposes without compensation.
  • I wager that anyone who's studied mathematics will agree with me that RSA is as natural a property of this universe as the law of gravity.

    I'll disagree with you on that one, but you can keep your money. It's just as natural a property of this universe that any given mechanical device works correctly--- say, a laser or a videocasette recorder ---as that RSA works. When you find cryptographic operations being performed in nature, let me know.

    Yes, RSA is mathematical "truth". (In that way, it's more natural than Newton's Law of Gravity, which is just an approximation of the real behavior of the universe.) But is RSA somehow "present" in the universe in a way that the transistor is not?

    All patents (well, maybe not business models) are ultimately processes that work because of natural law. Mathematics is a blend of invention and discovery, as are the physical sciences and engineering--- none are "pure" discovery or "pure" invention.

    I'm not trying to be a deconstructionist here and claim that all science is arbitrary cultural invention. I believe in mathematical truth and observable reality. But the recognition of what that truth is, what parts of it are interesting, and the presentation of that truth are all creative acts.

  • No, actually I don't agree with software patents in general, and think they've been abused horribly. I just disagree with the notion that being "mathematical" somehow gives them special status (or lack thereof).

    You are entirely correct to say that society must weigh the benefits (and ethics) of enforcing patents, if any, versus the benefits that free use of those ideas provides. I'm as yet undecided on that...


  • Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones.


    Giggle. You ever hear of a guy named Shannon? This is not an "assumption."

    I still say, burn it all, let the chips fall where they may: IP, copyrights, trademarks, export laws, the whole kit and kaboodle.
  • I am against IP in some cases. In software there is little in sense in have patents and copyrights for as long as they exist. In most cases these patents expire well after the art has become trivial. For example a while back there was a discussion about someone claiming a patent on downloading and paying for audio over the internet. The patent was filed in '88 (I think). Ok in '88 the patent was probable semi original. Paying for things over the internet especially sounds was a rather new concept. Now though the patent is still in effect and the concept is trivial. Much too long a patent. RSA on the otherhand is still (by my limited understanding) state of the art crypto. And still covered under a patent. A good thing in my opinion. In other areas patents are even more applicable. Pharmaceuticals - drugs rarely make it to market before they have only a few years left on patents. Therefore they have a little time to recoup a large outlay of cash (in research). In this sense it almost seems that the patents are too short. I think that there should be varying patent lengths. Or the patents get a short reexamination upon the annual renewal.

    On a side note I wonder if patents should be rewarded more. Yeah I said that right. Consider this intelectual Darwinism. Currently money runs the world. As a game imagine a changing of the rules. Companies can no longer own patents. Only people can. And they last longer. Therefore the better a patent you come up with the more money you make. I also tend to think that the smarter you are the more willing you may be to share the information with more people/companies. Of course I make the assumption that more smart people develop patents. Suddenly smart people become like sports stars. snicker I could almost see the headline now "Transmeta signs Linus for $15mil over 5 years."

    -cpd
  • My argument was that there is nothing better than RSA now. Therefore it is still state of the art. A wheel is trivial but still state of the art because nothing does the job (of a wheel) better than a wheel. My arguement (looking back) was more along the lines that a patent should be granted for X years, or until the idea patented is no longer state of the art. In this model RSA would still be patented unless you can prove something is signifigantly better. The streaming audio patent though would have been forgotten by now. Determining X such that it is fair is rather difficult though and I do think that 17(?) years is too long esp for software. What is fair, I don't know.
    State of the art does not nessecarily mean complicated beyond human comprehension. It mearly means the best implementation for something.
    -cpd
  • "Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance".

    One thing that I'm sure to agree in this article is about the power of boycott. Even if the GPL was overturned in court I think that if a company was foolish enough to violate the spirit of the GPL then there would be A LOT of people that will boycott this company (I've heard some time ago about a company that tried to trademark Linux, or something like that, and that was boycotted).

    The GPL is the fondation of the philosophy of the FSF (as the BSD license is the fondation of the philosophy of the Berkeley university) but now that this philosophy is shared by a lot of people we have more power even without the GPL. The GPL was a catalyser for this particular philosophy.
  • The article does contain some arguments which are not that strong, but it is not a "stupid" article.

    patent law does not prevent an individual from building a patented device for his own personal use

    I believe it does but I may be wrong. From what I understand patent law gives the owner the ability to exclude others from making, using or selling the invention. I don't think it makes any mention of a requirement that the use be for commerce.

    Say someone patents a means of mixing chemicals to produce heat over a few hours (like those boot warmer packs for skiing).

    If a huge multinational ski company like K2 starts selling those with skis then it's clearly a violation of patent laws.

    What if it's some local guy at a ski hill who is giving them out with the ski passes he sells? Or what if it's a member of the volunteer ski patrol who is giving them out so people don't get frostbite? It's easy to reduce this situation to one where a guy uses the idea to keep himself from losing a foot to frostbite.

    Admittedly this is reducing the situation to a point of absurdidty where nobody is likely to refuse the right to use the patent. But that's not the point. Legally they could say "no, you must not use my patented means to heat your foot" in any one of those situations.

  • You can only sue him if he violated the terms he agreed to. If I stole the book from him, or copied it without his consent or knowledge you couldn't sue him.

    And yes, I am forced to accept copyright laws, that's why you can force me to get a copy of your book only on your terms. If I declare I do not accept copyright laws then go and copy your book, you can nail me. Therefore I am forced to accept copyright laws.

    Saying I don't have to accept the laws is like this: say there's a line on the ground that it's illegal to cross. You're saying that I don't have to accept that law -- that I can choose not to cross the line. Those aren't the same things. I want to be able to cross the line without facing a penalty. That's the only way in which I would not be forced to accept that law.

  • The crux of the disagreement I have with this whole issue is in your comment If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! I don't believe ethics should force you to adhere to laws you don't believe in.

    Taking things to extremes, say there was a law that said you were not allowed to travel more than 1km from the place you were born. Or that required you to keep at least one slave. If you do not believe in these laws, do ethics dictate that you should follow them as well?

    I say if you don't believe in a law, break it, but be prepared to face the consequences.

  • I agree, it's a matter of ethics. If you have no ethical problems stealing the candy, then steal it. If you have no ethical problems copying the book, copy it.

    I personally would have an ethical issue with stealing the candy, because if I have the candy the previous owner of the candy no longer has it. If I copy the book, the previous owner of the book still has everything he/she did beforehand.

    The issue of being forced to buy the book is a red herring and has nothing to do with the argument. It's about being forced to do something, or not to do something you don't agree with.

  • I don't lie. That isn't the issue. The issue is whether or not I respect the copyright. I find copyright to be vastly different from an author asking me personally not to copy the book.

  • Say I see a cool logo on Joe Blow's web page. If I decide to put it on my web page, I can be nailed for copyright violation.

    But if copyright law didn't exist it would be different. I could not be nailed for taking the image because I never signed a contract or in any other way promised I wouldn't take the image.

    To make this analogy closer to the book metaphor, imagine Joe Blow bought the book and signed the contract saying he wouldn't distribute the book. Then say without his permission I photocopy the book. He didn't distribute the book and I now have a copy. I never signed any contract so the author can't legally do anything to punish/stop me. But if copyrights existed I could be nailed.

    The difference between copyrights and contracts is that you have no choice to "accept a copyright", but you have a choice to accept or reject a contract. If you have never signed a contract saying you won't do something then you can't be nailed for doing that thing.

    To me that's the one of the real important issues with copyrights (and many other things), they're rules you're forced to obey without ever having agreed to obey them.

  • Perhaps patent laws are a bad idea from a philisophical standpoint. However, in the absence of such laws, there would in fact be disinsentive to spending on R and D. If a company could merely reproduce any device that a competitor had invented without even paying royalty, it could obviously offer the product for a lower cost than the rightful inventer becausse it would not have to recoup it's research costs. In this way the abolition of patent law would destroy technological progress. Only groups who had no monitary interest in the fruits of their research, such as governments would spend money to pay for the development of new technology.

    This economic arguemet can be applied to copyrights, but on a lesser scale, because it often costs much less to create copyrighted material than it does to create patented material.
  • "If everyone were able to knock out cheap ripoffs of other people's works, it would be very hard for people with only a passing knowledge of the work to sort out the originals from the copies."

    The changes I described in my original post would require all unauthorized derivative works to be marked as such.
  • by TheDullBlade ( 28998 ) on Wednesday May 12, 1999 @11:17AM (#1895695)
    (note: this only concerns copyright)

    I'm surprised that I haven't seen anyone mention the importance of distinguishing between the right to produce verbatim copies and the right to produce derivative works.

    In short, I think "fair use" should be greatly extended, beyond the needs of reviewers and parody-writers to all derivative works.

    Fanfic is copyright violation, but darkfic (extremely twisted parody) is not. Similarly, pornographers freely trample the wholesome images of family entertainment while honest artists are prevented from writing tasteful side-stories relating to events and characters which have become cultural icons. I once came across a parody of The Hobbit which was the most pathetic piece of literary tripe I've ever had the misfortune to glance at, but one of the most beatiful works of animation ever produced is incomplete despite the approval of the copyright owner (because of earlier contracts signed which were only possible due to the excessive powers given to the copyright holder; "enough rope to hang yourself").

    Currently, copyright law discourages valid creative, though derivative, works which increase "mindshare" and thus marketability of the original work, and encourages unpleasant mockeries which are used as cheap hooks to attract buyers and reduce the value of the works they are derived from.

    I would much rather see a general requirement for products to be labeled "unauthorized derivitive work of X." This would make it clear what is canonical to the storyline, and what is Joe X's take on the story.

    Also, the specific exception of parody is not adequate to allow the creation of works that would otherwise never have permission granted (incidentally, I've heard more than one author praise a well-executed parody of his own work). Parody is not the only way to challenge the ideas set in a story. An unauthorized sequel might be the best way to express disagreement over the long-term consequences of the actions of the hero.
  • I disagree. I can access copyrighted material without any commerical relationship with the author -- by checking a book out of a public library, for example. Intellectual property rights, like all property rights, are a creation of societies and governments, and our current conceptions about property rights are very different from those of a few centuries ago.

    Ideas about property rights have evolved to adapt to changing social, political and economic circumstances, and they will change again.
  • Arguably, hearing music infers a lot with respect to what one can and cannot do with it. I won't argue (at least here) that it infers that one can do anything with it, but people are not capable of complying with a demand to do nothing with it. Thus, a witness to copyrighted material (such as someone hearing a song) must be allowed to have some rights over that material. Denying those rights will succeed as well as repealing gravity; it is not that people will not comply, but that they cannot.

    When a person receives information (such as hearing a song), they assimilate that information just like they assimilate breakfast. It becomes an inseperable part of them.

    Such a relationship is at least ownership. Either I own my mind and body, or I have a stronger relationship with my mind and body. Any law that denies this natural fact is as bogus as a repeal of gravity.

    Once I hear a song, I have it. Nothing short of disease or death will make me forget the first bars of "Money for Nothing". I will not comply with any law requiring me to forget it, because I cannot choose to forget it any more than I can flap my arms and fly.

    I own...or, if you prefer, I include...terabytes of copyrighted material. I cannot separate them from myself. If I could and did, I would still be a viable human being, but would barely be recognizable as who I am today. I would certainly not be able to hold down any engineering position; removal of all the engineering savvy I learned from books would leave gaping holes in my head.

    In a very real sense, hearing (or otherwise witnessing) copyrighted materials irrevocably changes the person. If you deny someone all rights to information they know (and this is not done in copyright law, you deny them the ability to use their own natural capabilities. You can deny them certain rights, but not all. You can't even deny all but certain rights, simply because we don't even understand all the ways that we use information.

    One must grant all rights by default and deny certain rights by law. This is simply the nature of one's control over one's self. One cannot deny an innate capability (such as stomping one's foot) by default, but can deny particular capabilities (such as stomping one's foot on somebody else's face).

    Merely hearing a song or reading a book makes the information therein an integral part of your being. I've never seen a law that would deny all rights to that information, only limited rights to it. Any law that denies all rights to it is delusionary--one may as well redefine Pi.

    Of course, people have tried that before...

  • I think that we're agreeing, then. I was not arguing for the right to copy said music (or book, or whatever). I was arguing that one has to have some rights over using the copy of that material in your own head. The right to influence is required, but the right to copyright outright is not required by my arguments.

    Of course, then it's up to the lawyers to draw the line between influence and outright copying. After hearing "Money for Nothing", I can write another song about the rich life of a rock star (that's influence), but I can't just cover the song without clearing it with Dire Straits' label (that's outright copying). Writing a song with the line "I want my MTV" blurs the line a bit (doubly so; did MTV have a trademark on that tagline?). Unfortunately, law often has to deal with these fuzzy logic situations...

  • by deborah ( 32113 ) on Wednesday May 12, 1999 @08:46AM (#1895701) Homepage
    As a scientist, I can't let this pass without comment.

    I think the important thing that the author has not done is consider the benefits of property laws. The key here is that without some kind of regulation on intellectual property, no one is going to want to share!!

    The author gives the example of a levitation device which could prevent you from being eaten by tigers. He gives the scenario that you have learned about the device at a seminar he gave, but can not build the device to save yourself since he has a patent. There are some problems with this argument:
    1. First, and most importantly, in the absence of patent laws, he, being a stingy bastard, would not have ever given a seminar. More likely, he would hoard his information.
    2. Second, there is a reason that the death penalty does not apply to patent law violations. Under the circumstances where violating a patent law would save your life, I would hope you'd be clever enough to value your life over the fines you may be charged.
    3. Third, suppose you made a levitation device and saved your own life, then quickly destroyed that device. It is not likely that even a stingy bastard would go to the trouble of taking you to court, and, if he did, not likely that a jury would choose a large penalty. Even if the laws are not perfect, our legal system is developed so that every case can be considered individually.

    My conclusion? Considered only in and of themselves, patent laws can easily be made out to be un-constitutional. To understand why they are necessary and fair, one must be willing to pursue the concept deeper than the surface that this article skims.
  • This seems like an excellent article to read, even if you are not a dyed-in-the-wool libertarian. Interestingly, it was apparently published in Autumn 1995, long before the current media splash. I especially enjoyed the author's explanation of why the gap in the Tolkien movies exists (I always wondered before why Bakshi didn't finish the whole LoTR series).

    One might extend the basic argument against copyright and patent further in the Linux/*BSD/FSF/OSS sphere. ESR's essay on OSS development as a type of bragging rights competition or "gift culture" (at http://www.tuxedo.org/~esr/writings/homesteading/h omesteading.html [tuxedo.org] comes to mind as an example. The basic tenet is that voluntary cooperation, in both the positive (contributions of code, etc.) and negative (boycotts of those who break the rules, anti-MS sentiment, etc.) senses, is the real basis for much of this phenomenon, as opposed to formal legalisms like those contained in the GPL. Although I certainly don't intend to slight RMS and the FSF for its attempts to use copyright law against itself, in order to formalize the hacker ethic. Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance.

    P.S. IAAL (I am a Lawyer) but I don't practice - I still have my Texas bar card though. (Sysadmin work has been more fun/sane, plentiful, and almost as lucrative). Thus the following disclaimers apply:

    Not Board Certified by the Texas Board of Legal Specialization. This is not intended as creating a lawyer-client relationship or providing any form of legal advice.

    #include "disclaim.h"
  • Aaron's points are salient, if one takes the view that an interest in property is predicated solely on the ethical predicate of possessing the fruit of one's labor. Of course, this is not the entire story, even among libertarian philosophers.

    I profess no great expertise in this area of philosophy, and so I shall defer to others to articulate best the philosophical opposition, and to state more perspicaciously Ms. Rand's point of view. (I think merely dismissing her arguments on the grounds that she owned the rights really begs the question and amounts to ad hominem argument; indeed, even this naive amateur philosopher sees that the libertarian "fruit of labor" argument seems far stronger for IP than, say, for land.)

    No, my foundational understanding of the justification of property rights is a more practical, economic, argument. It is simply this, if I can own property, then I am more likely to care for it so that it produces well, or at least to sell it to someone else who values it more. Accordingly, the property will find its ways (in an aggregate sense) into the hands of those who value it most, which is to the overall benefit of society.

    Of course, the preceding is an overly simplified version of the argument. I merely wanted to identify the point of view for the purposes of the following, rather than to defend it per se.

    In adopting this, I don't disagree with Aaron -- the INITIAL ALLOCATION of property does tend to be inequitable in some sense -- giving property to folks based solely upon conquest and the like. The thesis is that this initial allocation is irrelevant to the workability of the property system -- however initial allocations work out, the eventual reallocations that result from free market interaction will reach pareto-optimal levels in due course. There will be local inefficiencies, but the overall system will result in greater aggregate wealth. This is, IMHO, a good thing.

    Moreover, this is not inconsistent with what Long calls the "ethical" argument, IMHO. Copyright law, for example, gives you the right to own the fruit of your labor, subject to your freedom to assign it to others. Likewise patents and trademarks. If you work your land, you will likewise own the fruits of that work.

    Without the right to exclude, however, others can trample on or hoard the resources necessary for you to work the land; and without the right to exclude, your works may be used indefinitely by others without your having benefitted thereby. The latter isn't an ethical argument, but tracks back to the principles laid out in the Constitution, that an incentive is necessary to promote the "Sciences (read -- skills to write works of authorship) and the useful Arts (read -- skills to invent)." Whether or not you have the incentive, absent that right to exclude, the capital necessary to make it possible for you to feed your family while inventing and/or creating will have to come from your other labors and efforts, thereby depriving you of those fruits.

    It's not PC here to say so, but there it is.
  • With all due respect, I disagree with the proposition "Many people desire . . . ." While some may leave pieces of land disused "for speculative purposes," few do when another person is interested in buying at a responsible price. (Of course, there is a corresponding -- but pervasive -- problem that arises from having no propery rights -- the tragedy of the commons).

    More important, I never said that every piece of land is placed in position that is optimal for society -- I said that aggregately, the land is placed in the hands of those who value it most. If a person considers that the land has value in the future far outweighing the value of its present production, and that it would diminish the value of that land in the interim to use the land's production near-term; with noone feeling that they can make greater use of the land and hence be willing to pay more, who is to say that society has not benefitted by not using the land?

    For example, a farmer may rationally leave land fallow for a period of time to avoid overusing it, so that aggregately more bounty is produced by the land over time. Is that detrimental to society?

    In short, as between any individual or committee's view of the virtues of what should be done with the land, or the overall impact of the market decision, I favor the latter. Yes, there will be examples of stupid people with more dollars than cents doing stupid things with particular assets. But as a whole, it appears to me that society is better served by allowing the market to work. (It also appears to me far closer to the libertarian ideals than the proposition of abandoning property rights entirely.)
  • Larry makes good points. It is important at the outset of these disputes to note that there are no clear answers -- that the truth is far more interesting than any of our speculations. However, on some of his remarks, I dissent.

    1. IP not a scarce resource NOT!.

    Granted that once created, IP can be freely and inexpensively duplicated. However, this does not mean, IMHO, that IP is not a scarce resource. Until created, IP does not exist. And it need not exist unless those who would create it have an incentive or reason for doing so -- as well as the resources to do it.

    Money makes this happen. Money for houses, money for food, money for beer. Money for computers, money for research materials and for education. Companies won't invest in IP if they can free-ride off of others and others can free-ride off of them -- for the simple reason that it makes sense to wait, and spend the money on marketing to out-market the bejesus out of those who did the making. hence they won't invest in scientists who invent, and inventors will create or not, depending upon their wont, for the good of the creation only.

    Perhaps a few rare kings will patronize the best minds, the Bachs, the Mozarts, the Beethovens. And then we will have the art that those kings like best. It will be good, but it will suit the needs of the kings. Perhaps.

    And perhaps a few things will be made for the sheer glory of it.

    Perhaps not.

    This is because innovation and creativity is scarce. And becuause absent IP, inventors and innovators have an incentive to hoard their great ideas -- relying, where possible on secrets.

    And the great writers will, yick!, go to law school so they can make a living.

    Understood that once created, copying is possible. That is not the point of property. It is to allocate resources where they are desired most. And one of those resources are the time and minds of our best and brightest. I want them thinking about brilliant invention and the fame and wealth they might obtain -- I want them aspiring to be brilliant innovators. I don't want them studying case law in a law library.

    Inventions and copyrighted works aren't the scarce resource, innovators and authors of works are the scarce resources. IP is how we reward them, for the benefit of society.

    2. Free beer and open movies -- TANSTAFFL.

    Larry says that there will be an open source version of star wars. That a cadre of artisans and musicians and actors and model-makers will, for the love of it, make the film just so we all can watch the credits at the end. They will reach into their pockets (or some patron will) to pay $100M up front just to make it happen.

    I dissent, finding it incredible that the dollars and resources necessary to bring the whole thing together would ever happen absent the ability to recover and make a profit on that investment. More than brainpower and innovation is necessary -- so is capital.

    And between your great story idea and mine, how will that cadre of artisans decide? Will we be destined to see nothing but low budget art films for the rest of our life, or is Larry right, nothing would change except for the better?

    Each of us can judge for themselves -- just be realistic in arriving at your own conclusions.

    Between you and me, the same argument made against IP in part 1 above, with which I don't agree, but for the reasons stated I believe misses the point, explains in large part why a Linux might happen, without demonstrating that a Star Wars can: Linux didn't require the AGGREGATION at once of real and meaningful capital to create. Don't get me wrong. Linux is great. But its only what it is, and its existence does not to me prove the possibility of a spontaneously created Star Wars trilogy.
  • deborah writes:

    >Considered only in and of themselves, patent laws can easily be made out to be un-constitutional

    Unlikely, since Article I, Section 8 of the constitution expressly provides that Congress may pass a patent act. The present Patent Act is not substantively different (albeit there are many procedural differences) in any constitutional regard than the one drafted by Thomas Jefferson in the first Congress.
  • Perhaps this is because he expressly criticizes the views of Hayek and Rand on this matter?
  • These words do not mean what you think they mean. As an aside, the term "strict construction," at least as that term is used by jurisprudential scholars, has little to do with the proposition you cited, although you adequately characterized Justice Black's absolutist view of the First Amendment as one of strict construction. (Interestingly, if strict construction meant what you said it did, citing the first amendment, which does not enumerate, but rather limits powers, would be a bad example. Black's analysis, I think, is far closer to "textualism" than strict construction, but that's another piece.) But I did not write to get deeply involved in semantics or definition of terms.

    The words I am concerned about are the use of the actual language of the constitution, "to promote the Progress of Science and useful Arts." This is not a general requirement to promote "progress," indeed, that construction is not permitted from the text. Nor is it even to promote the progress of sciences as we commonly use the term (for "useful Arts" does not refer to copyrights). Rather, they meant an older definition of Science, used at the time, and consistent with correspondence between Madison and Jefferson, to wit: "the sciences of reading, writing and ciphering;" or rather "a trained skill" as in an occupation.

    The Sciences, the progress of which was to be promoted, was the technical skills of the writer. The useful Arts were the technical skills of the inventor.

    I *do* understand that this seems obscure and unlikely to someone seeing it for the first time. I do understand these are archaic references (although the phrases quoted above were taken directly from Webster's Third New international).

    Please understand that I too was a skeptic until I saw the research. To motivate this construction, please consider how a protecting purely fictional works of authorship or poetry could ever be found to promote "Sciences and the useful Arts."

    References available upon request -- they are not online, not terribly -- be ready to sink yourself deeply into the Jeffersonian mind and 18th century-speak. This, by the way, is the strict constructionism as practiced by Bork.
  • By "quite a few," I presume Mr. Harlan means the three (3) that patents that bear your name. Were there more that I missed? Fair enough, but one might have been led to think there were many more.

    With all due regard, these characterizations of the process are inconsistent with my experience. It is true that first office actions routinely reject all the claims, and that a fair percentage of patents are granted on the second office action. Mr. Harlan's explanations for these reasons are overstated or wrong.

    Mr. Harlan is incorrect that "the burden of proof is on the defender." Mr. Harlan is quite incorrect that the USPTO "simply scans for keywords" in patents, or that they do not search literature. I frequently find non-patent prior art in initial office actions. It *is*, however, the case that the USPTO does lean heavily on patent prior art, doing less search of literature.
    There are many reasons for limiting the scope of the novelty search to less than a comprehensive search of all prior art, however -- mostly related to the impossibility of conducting a comprehensive search and more importantly, to keeping the cost of a patent examination within the means of individuals.

    The statement, "At no time is your patent read by
    someone who understands it," is outrageous and untrue. It does happen, I suppose, from time to time, but rarely will an examiner pass upon an application before comprehending the nature of the subject matter (s)he is examining.

    Also misstated are the standards during an infringement action. A plaintiff must prove owernship and infringement by a preponderance of the evidence, or collect nothing, even if the patent is found to be valid. It is true that the validity of the patent is presumed unless the defendant has made a very substantial showing.
  • Noone else worked on them during that time because they didn't work out so well. So weak were they that Mazda itself abandoned the technology. Everyone else was in a position to develop the technology further, and to attempt a cross-license, but noone bothered. (That happens often in markets, witness the chip marketplace).

    I think that forces other than the patent act let to the demise of the everlastingly cute, and undeniably innovative, but commercially unimportant Wankel engine.
  • > Of all the nations in the world, the US stands alone in permitting software algorithms to be patented.

    This is not the case.
  • I am truly sorry if the response was painful. I hope that you found it at least interesting.

    It is difficult, if not impossible, to respond meaningfully to the general hypotheticals you gave without more detail. Suffice it to say that I have defended against patents that I found to be overbroad and invalid, winning some and losing some. I have also had to defend some patents that issued because of less than vigilant defense of the system by the examiner. No system is perfect, but ours works pretty well, IMHO.

    As to the benefit in your case -- Conopco hired you to do the research. It paid for your salary. If it couldn't own, to some extent, the fruits of that work, it might not have hired you at all, or might have paid much less -- finding the better business decision to be to let the other guy hire you and benefit by free-riding. (Problem is, the other guy is thinking the same thing).

    Perhaps Stanford is better able to provide you with the facilities you provide because of the revenues it derived from licensing?

    I do think, however, that the scope of patents you describe is somewhat different from the scope of patents in my experience. On one hand, you seem to suggest that the use of mathematics is precluded. Not so, although the use of a particular formula in order to create a tangible and meaningful result via an apparatus might be. Then, you express concern that a patent for a particular apparatus might cover an entire application area. This would be extraordinary, particularly under present federal circuit law, but not impossible. Even if this were so, the concern you seem to have expressed is that your colleague misrepresented to you the scope of his or her claims, not that the claims are too large.

    Please do not forget, the benefit and purpose of the system *is* to provide a meaningful right to exclude. It is also the cost of the system. Depending which side you are on, you might have a different subjective view as to its benefits, but the theory and argument is that society benefits even though you might not.

    The balancing of these interests is, well, where the meat of the matter lies. The truth is therefore, far more interesting than the simple conclusions stated by either of us.

    I think you unfairly demonize patents, patent attorneys and examiners. The system is far fairer and more straightforward than you suggest. It is also imperfect and could benefit substantially from improvement. Although many engineers and scientists bristle at the system, it is the reason many have their jobs in the first place and, without it, much of what we do as scientists and, particularly as engineers, would be financially unsupportable.

    It is also possible that you yourself might derive no benefit whatsoever from the system, but that the system is nevertheless a good thing for society as a whole. Society is like that.

    There are many costs, yes. There are also many benefits. These must be balanced in the aggregate and viewed from a societal standpoint to arrive at a fair assessment of whether the system does good or evil.
  • by werdna ( 39029 ) on Wednesday May 12, 1999 @09:21AM (#1895723) Journal
    As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.

    I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.

    However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)

    Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.

    I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.

    This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.

    The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]

    This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.

    Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.

    Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).

    Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.

    Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.

    The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
  • by AmJur2d ( 49306 ) on Wednesday May 12, 1999 @09:42AM (#1895738)
    Right now, if you infringe a copyright, you are subject to damages in tort, which (since infringement is generally an intentional tort) consists of all damages to the copyright holder which flow from your infringing activities. The law also allows statutory and punitive damages, as well as an award for fees and costs.

    Suppose, however, in the absence of copyright, you sold your book to Joe Infringer with a restrictive contract that mirrors the current statutory rights of copyright law, and Joe Infringer breaches the contractual duty. You can sue him for your "expectation interest" in the contract: what you stood to gain by Joe's compliance with the contract terms. You cannot get any sort of punitive damages; Anglo-American law does not punish contract-breachers. The recovery will probably be less than what is currently available under the current statutory copyright law, and might be a lot less if the court elected to refuse to allow expectation interest and only gave reliance interest (which it might, because expectation interest is going to be highly speculative, and people will probably flinch at buying a book if the book purchase contract specified liquidated damages in the six figures for breach).

    There is, however, a far more difficult problem: a legal concept called privity. When I sell you a thing, and place restrictions on your use of it, I am creating a contract with you. We are in privity of contract, and are mutually bound to abide by that contract. Now, suppose you then later sell that thing to someone else. Is the person you sell it to bound by our original contract? The answer, under contract law, is no; he and I are not in privity of contract. The answer under property law is more complex: If the original contract forms what is called a covenant than he and I may be in privity of estate, and the covenant might run to him. However, covenants are generally only applied to interests in real property; I am not aware of any application of covenants to personal (or intangible) property (although I haven't looked very hard).

    Suppose, to get around this sticky problem, I put in a clause that you can't sell the book at all. This is called a restriction on alienation. For real property, the courts generally do not allow restrictions on alienation; if the court does the same in personal property, then you can't do this either. However, some restrictions on alienation are permissible, and a restriction that requires that you bind your buyer to the same contract terms that I bound you to might be permissible. Only a court can answer that question (this is all common law doctrine). Even so, in the case where you do transfer the book without meeting my conditions, we still have a problem with remedy; can I have the court rescind your sale, or do I merely get damages? Can I get an injunction against the your third-party purchaser to prevent him from making copies, even though he has no duty to not do so? What if he's already made copies? I could probably sue YOU for that, even if I can't sue him....

    Another problem would deal with theft; if someone steals your copy and then makes copies en masse, who do I sue? You? Was it your fault that it was stolen? Do I sue you and let you bring in the thief as a third-party defendant on a derivative liability theory?

    What about if you merely lose the book, or abandon it? Would you like to be potentially liable to a publisher for millions of dollars of damages because you left your copy of Virtual Light on the bus by accident? Hell, anyone who buys a book will have to buy "bookowner's insurance" too.

    Of course, we'd end up passing legislation to prevent these problems. And that legislation would probably end up looking a whole hell of a lot like copyright law. Fancy that.

  • Few people think that out current IP laws couldn't using some tuning, but this article was way off.

    1) You cannot patent laws of nature. You can patent inventions, not discoveries. Newton couldn't patent gravity, but he could patent an invention that takes advantage of his discovery.

    2) Tiger's wouldn't eat you, because you could build a levitation device. You just wouldn't be able to use it for a profit or in compatition to the inventors levitation device.

    3) Patent do not stop the transfer of information, the facilitate it because they make a ready source of information about inventions. If Mr. X patents a mousetrap, you can patent the mousetrap widget that makes Mr. X's mousetrap better. The "problem" is that you cannot patent the mousetrap-widget combo for an arbitrary period of time.

    This is a problem for people who want to expand on previous ideas, but it also protects the labor and work of the originator--not forever, just for a while, and maybe that time unit needs to be reviewed.

You can tune a piano, but you can't tuna fish. You can tune a filesystem, but you can't tuna fish. -- from the tunefs(8) man page

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