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Structures of Intellectual Property
PeterP writes: "ARSTechnica has an interesting editorial today. It advocates altering the discussion of intellectual property laws to be one of structures, as opposed to rights. Kind of a breath of fresh air from the dogmatic, kneejerk debates this topic usually brings up. An interesting read, too." I second that. Definitely one to read and think about.
Just an idea, what about thought crimes? If I were involved in some sort of legal battle over a "thought crime", would the DMCA give me leverage? Would assumption of my thought process fall under reverse-engineering?
Not that it would ever hold up in court. Just curious.
The WIPO document "Technical Protection Measures: The Intersection of Technology, Law, and Commercial Licenses." is available in PDF Format and Word Format Here.
--Got Lists? | Top 95 Star Wars Line
As Stokes points out, the hard part of setting up this kind of structure is that it must be naturally sustainable if it's going to last.
Content owners openly admit that this is a direct attempt to artificially reproduce the constraints on copying naturally inherent in analog media, thus doing away with the advantages of digital media for everyone but the content owners themselves.
That's the key - the basis of the "digital revolution" is that it's just too damned easy to copy and share IP. What is needed is a system that (a) takes advantage of the easily replicable nature of IP, and (b) allows the creators (not necessarily the distributors!) to reliably get decent revenue from their work.
Without that second part, the big companies will win, because if they can preserve a system which makes it possible to rake in big bucks by making distribution hard for Joe Blow, then most writers, musicians, etc. will go through them. Sure a limited number of people will produce stuff for the free (as in speech) market, but those will be the idealists, dissidents, the fringe. Probably the more interesting art will be there, but the majority of "culture" will follow the money.
Unfortunately, as long as the big guys have the most reliable way to cash in on IP, they will have the money they need to reinforce their position with marketing, lawyers, legislation, enforcement, and technology.
If a way can be found that Joe Blow can make money from music, writing, video, or whatever by taking it directly to the Net, the big corporations will lose. Napster was a nice dry run, it proved the power of the grass roots Net, but it didn't make anybody any money, so it wasn't sustainable.
On a side note, it really seems that these issues have the potential to bring together a strange group of bedfellows - Libertarians, anti-globalists, open source believers, and artists of all kinds. Of course it won't appeal to pseudo-Libertarians who worship the accumulation of money as proof of virtue, but true Libertarians who dislike the use of wealth to pervert the free market may have more in common with protesting commies than they'd like to think!
-- Sigs are for losers
I don't usually respond to trolls, but I couldn't resist this one. Since the anti-IP movement is all about envy (I want my free MP3s! I want my free software!), I guess it's par for the course that IP should be all about greed.
Toronto-area transit rider? Rate your ride.
What a lot of people don't realize when the criticize Big Pharmaceutical Companies is that they tried giving cheap drugs to Africa. They got nothing but crap for it.
At least one of the big names out there (I'm sorry, I can't remember which) had a program whereby they sold expensive drugs to Third-World countries at cost or very close to cost. Guess what happened? A bunch of Americans got pissed off that they had to pay more for their drugs (blah blah... ripping off Americans... blah blah), and wrote their Congressmen. The result was a law allowing and encouraging other companies to re-import cheap drugs from the Third World. Of course, the drug companies then had to stop their program.
Drug companies spend a higher percentage of their revenues on R&D than any other industry. If they couldn't make a profit off new drugs (which they are able to only thanks to patents), they wouldn't develop anything new. The result would be widespread disease, as bacteria become resistant to our current antibiotics, and no new ones come down the pipe.
To all those completely opposed to IP: I agree with you that there are many flaws with the current IP system, mainly that they grant patents for obvious garbage, that the term of copyright is too long, and that consumers are losing their share of the rights. Nonetheless, can you propose a system that will still encourage drug companies to make new drugs, yet doesn't involve some kind of IP? Take a close look at your system--is it Communism of some form ('cause we've tried that one a bunch of times, and it's not too hot).
I have yet to see a system that will still encourage free enterprise to innovate, that does not involve IP. We create this notion of "intellectual property" to allow the free market to allocate intellectual resources the same way it does physical ones (it's pretty darn good with physical resources, so it at least seemed like a good idea). Anybody got any better ideas?
One 23-year term with current restrictions. Moral right as in Europe. Anything in copyright but out of print is subject to compulsory license at a modest fee. No interface copyrights. Fair use per pre-DMCA copyright law. EULA cannot require buyer to give up rights allowed by copyright law. No database copyright.
Copy protection cannot prevent any use allowed by copyright law. First sale doctrine applies. Rental cannot be prohibited. Registration cannot be required. Deposit copy required by copyright law cannot be copy protected.
Repeal entire act.
No patent term extensions. Compulsory license for pharmaceuticals, allowing an audited reasonable profit. No business method patents. Patents cannot be copyrighted.
Return to historical interpretation of trade secret law - applies to contracting parties only. Trade secrets frowned upon by law.
That would fix it.
I beg to differ -- IP law is hardly a boolean prospect.
No law is boolean, and that's the strength of the system. Speeding? Nope...you can go to court and contest the ticket, and in a good number of cases, you can get out of it. You think Free Speech is a boolean absolute? Let me point you to censorship, and the FCC's regulation of various media. You are free to say whatever you like, but you need to avoid saying certain things which could be construed as assault, a hate crime, and so forth.
If you remember your basic philosophy courses, there was the issue of "the chains of society" -- you live in a free country, but are you truly free to do anything you desire and remain part of the social community? The answer, of course, is no. Social regulation is something that is determined by the entire group.
IP law should go the same way, and it isn't. IP law is being dictated to society as a whole by a small minority that has a vested interest in maintaining the status quo and are using their financial leverage to get their way.
Should there be IP law? Yes. Should it be exploitable by companies with an army of lawyers with the intent of stuffing their wallets to the point of exploding? No.
Unfortunately, the trend seems to be that "you can pay us buttloads of money for our product, but you can only use it in the manner we proscribe, and if you make any money off the use of our product, we're entitled to royalties." I can see it happening. Some paint company suing Picasso's estate for unpaid royalties on the use of their paint...
*knock on wood*
blog |
"Make no mistake, this group may talk "rights" to the public, but they're thinking "structures," and even a cursory examination of the documents they produce will bear this out. "
The exsistance of monopolies in free markets will always harm them. The current reward for getting a patent is a monopoly. The markets ability to "sort it out" is stripped from it as monopolies are added.
Inventors should be rewarded for their work. So we cannot abandon the system of giving a reward for inventions. Instead I think we should change the reward from a monopoly to a tax break for related profits for the patent holder.
The monopolies are squashing further research by creating impassible barriers. The stated goal of patents and copyright was to encourage creative works. We are now working against that goal.
For the naysayers there are many good angles to this but here is a bite. Patent holders can wait for competing markets to mature and then sell their patent (and subsequently their tax break) to the highest bidder for a much higher price than they could now.
Novel theory: Modern Man evolved from psychopath
"No, a "rights model" is not an appropriate framework for IP. What fundamental human right (i.e. life, property, religion, speech, etc.) does this have to do with?
Talking about rights in this context, or so-called "animal rights" or a "patients' bill of rights" cheapens the very foundational concept of rights."
I do agree with your main points here... All too often, lobbyists, such as the trial lawyers who are trying to get what is really a "lawyers enrichment bill of rights" passed but are calling it a "patients bill of rights, completely perverting the term.
However, when it comes to copyright and patents, I do think there IS a rights issue.
Why? Because patent and copyright law more or less is an EXEMPTION given to IP holders to the Bill of Rights.
IE, freedom of the press can't allow you to publish an entire copyrighted work, the Constitution's provision for copyrights grants you a limited duration monopoly, and thus, abridges the 1st and 2nd amendments, which is why, it MUST be Constitutional, not statutory (made by Congress) law. In exchange for a limited duration monopoly (at least, it USED to be limited), there are certain rights of "fair use" that are given, and this right is derived from the Constitution. The intent is to both allow creaive, inventive people to both profit from their creations, AND to allow others to build on those ideas to create better ones. That is really the ONLY interest any government has in even recognizing copyrights and patents, to encourage invention.
Again, because copyrights and patents in some ways abridge the Bill of Rights, is the reason why the framework is actually included in the Constitution, and MUST be Constitutional, rather than statutory law. Which is the main flaw of the DMCA. Also, the Sonny Bono Copyright Extension Act would seem to stretch "limited duration" to 2 seconds less than forever.
=== The price of freedom is eternal vigilance
into account the latest law passed by Congress. It could definitely have some impact on IP and free speech.
Did I get it right?
-- B.
This sig does in fact not have the property it claims not to have.
One of the core reasons that IP law is breaking down so much is the level that it has been subverted by corporations, the very thing it was invented to stop! The orignal idea was that invetors and creative people would be protected from theft from corporations. If you invented something you got to have the rights to it. you could sell the rights but they could not be stolen from you. This was desinged to protect people like the person who invented the paper clip. He desinged the paper clip to pay off a debt and was payed the total sum of $400 for the idea. It has made the people he solled it to millions of dollars since then. Because he did not patent the idea he gets nothing.
I think part of the problem would go away if we mandated that corporations cannot have patent and IP rights, they can only be assinged to real people. That way corporations will stop this nonsense of making you signe your IP rights away to them when you work for them. This would have a two fold effect:
1.) truly brilliant people who are inventive would be rewarded. These people would become like athletes as they became more desirable as the number of core patents they hold increases. If a company wanted to produce something they would have to hire the person that held the IP or the patent. This would cause a great demand for these intelligent people and give a large shot in the arm to pure research and people wanting to go to school, If it becomes as lucrative and glamorous to be a scientist as it is to be a basketball player.
2.) Companies would be a lot slower to patent trivial things that they use. The fear would exist that when the person leaves that holds your trivial patent it will become just as dangerous to you. Campanies might try to get around this by having their intellectual property assinged to people like the CEO but you would still face having to buy the rights back to transfer them to someone else in the company (pricy) or risk having the CEO leave and screw the company over. This would lead companies to conclude that frivolous patents where dangerous, and that having the necesary ones spread out in a corporation would benefit them.
Just my two cents
Papa Legba come and open the gate
It is certainly worth thinking about.
"It is a greater offense to steal men's labor, than their clothes"
If the "time to live" of all copyrights, patents etc - only lasted for 3 or 4 years - would the system still work?
Would this be enough of an incentive to still create ideas and content?
The author is basically suggesting that we stop talking about existing laws and begin the debate in terms of why we need Intelectual property laws in the first place.
So...For instance, The difference between alchemy and chemistry can be considered the open sharing of information. Repeatable results. It could be that some alchemist, five hundred years ago, figured out to turn lead into gold, but then he took that information, made some gold and then retired to his country estate. Ultimately such inventions and knowledge die with the originator and don't benefit humanity.
So, open sharing of information needs to be encouraged by our IP laws. It seems to me that our modern technological society would not be possible unless people feel that they can share information without losing the value of that information. In fact under our IP laws the very act of sharing information protects it. Or at least it should be the case.
But now we seem to have laws that go against the very nature of Intelectual property laws. It seems to me that in order to hold a copyright, that information must be able to be copied in the first place. So why throw people in jail when they merely tell people how to copy information? There needs to be a threshold of profit that should be the basis for our laws and money needs to be the way disputes are settled, not jail.
But these are the things we must debate as a free people.
So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. People in the IP discussion of software should make themselves more familiar with the discussion surrounding the creation of libraries. People in the IP discussion about music/movies/etc will not benefit from this analogy, though, since the content produced there is primarily entertainment - not information.
Your belief that ideas can be "owned" is your RELIGIOUS belief. It is not universally right. And further, you do not need to spread your RELIGION to us "unenlightened barbarians".
I live in Taipei (Taiwan). Taiwan is not signed to either the Berne nor WIPO treaties. This means that copying software, movies, CDs, etc., and yes, even reselling them is 100% legal here. Accept this. We do not believe that ideas can belong to any one person.
As example, Son May Records is a local company here that copies, repackages and sells music, movies, etc., usually minus all the extras, for much less. This is legal. The company is not underground. They are licensed, pay taxes, employ locals, even give to charities and fund many local youth sports.
I also should say, Taiwan has very many cool LOCALLY BASED music bands. Many live an extravagant lifestyle from their success. How can that be if you say that no IP law means no one will produce content? Looks like you're wrong again.
Westerners need to learn that other positions on IP by other nations are as equally valid as their own. Did you learn nothing from your own Spanish Inquisition? You're doing the same thing all over again.
But then biggest IP pusher is Amerika; people who came to a land where the people (American Indians) did not believe land could be owned. They tell children fairy tales about trading some beads for Manhattan Island from these savages and laugh and pat themselves on the back for their cleverness which is little more than smug theft. And US has still not made reparations for this act and never will, and now preaches righeousness to us?
Further, these same USians attempting to ram their DMCA/WIPO down everyone's throat (looks like Canada is next)... these same people DON'T GIVE A SHIT ABOUT WHAT OTHER NATIONS THINK IS ILLEGAL. So while the US uses influence to get foreigners busted for breaking US law (Sklyarov from Russia, MoRE and DeCSS from Norway. Streamcasting sites rebroadcasting free-and-clear-broadcasted TV in Canada), US porn sites continue to be accessible and knowingly accept connections from places where porn is illegal like Saudi Arabia, and most Islamic nations. The US still allows promulgation of Nazi propaganda and private sale of Nazi artifacts illegal in France, Austra, Germany, etc. You ignore this but expect other nations to obey your law?
Yankee go home.
I see the point, but I think the approach is wrong. I don't think the problem lies in a rights-based approach, but in the fact that only one group's rights are being acknowledged. At least, this seems to be the author's problem (and mine) with WIPO. But a lopsided definition of rights is not inherent to the approach.
I also think there's a danger to a structure-based approach, which is that rights can be even more easily forgotten when a legal structure is based on something other than rights (e.g., economic efficiency). The standard criticism of utilitarianism then applies--that the rights of the minority can be breached if their violation sufficiently benefits the majority.
Society has lost millions of lives, and struggled over many centruies to get to a government whose preamlbe says "we take it to be self evident that people are endowed by their maker with certain inaliable rights". His article totally ignores the foundation of rights based history.
The question we should be addressing is not wether a rights based model is good or bad, but if rights being exercised are just rights - like slave owners who thought that they had a right to own people. This was clearly not a just right, even if they did have no incentive to grow cotton without them.
I wish people would understand that incentive is not a justification for property - maybe I have no incentive to grow oranges unless I can plant a tree in your yard and force you to water it, but that would not be a just right either. I wish people would understand that just because a government or institution calls something a property right - does not just mean that it is - either. I wish people would understnad that free markets are not about markets, but about freedom - where markets are just one of many pleasant side effects. what can I say or do to get people to get it????
--Mike--
Yes but that falls directly under his point in the intro. He says that he agrees with parts of both sides. As do I, as do (I think) most people. Not everything is black and white. And his point in the article is that it is virtually impossible for him (or me) to resolve our opinions of what we _beleive_ is right to the statements of "There are only two positions." Neither to me holds completely true. So that leaves us stuck. He has offered a new framework for us to try and resolve this issue. He's not proposing a solution, merely a framework to look at it differently. In terms of 'rights' you either do or do not there is no middle. In terms of 'structure' as he discusses then there are no double standards in his beliefs. He's looking at this in a different way then you. One that agrees with his morals. Which to me makes sense.
-cpd
> So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. ... People in the IP discussion about music/movies/etc will not benefit from this analogy, though
I don't know about the US, but in Finland we do have music in public libraries and it is perfectly legal to make a copy of what you have loaned. But I wonder how long given the current trend and Euro-DMCA. Indeed, I seriously doubt that if libraries were invented now, not in the distant past, that they'd ever become anything more than just an idea.
What we need is balance in IP. I think that rather than owning an idea, one should have commercial rights to the idea - that is, you don't have the right to prevent me from using your idea in my software, but you can expect royalties if I make a profit off your idea. Same goes for copyright - you can't restrict me from copying your work, but if I charge for it, I owe you a royalty.
The society for a thought-free internet welcomes you.
What I'd like to see is a thorough comparative analysys of the practical benefits and problems (i.e. consequences) of different approaches. Media conglomerates claim the civilisation will return to the stone age with no intellectual property. FSF on the other hand claims invention will flourish. Is there no way to find out?
Interesting enough, but there's no discussion about a strong part of any property rights/violations structure: penalties. This feeds into another complaint: the claim that rights are binary. As Platonic ideals, maybe, but in the world your rights are only as strong as your ability to defend them (or have them defended, for example if you own property under a government that recognises the "right" to keep it). That is, I can easily see a relatively humane system in which there are intellectual property rights, but the penalties for violating many of them aren't onerous, corporate "persons" have no or fewer rights than actual persons, the "necessity" defence is usable.... Call it the "Dutch model" for IP....
It's war... undeclared, but war, none the less.
--Mike--
struct IntellectualProperty {
short copyrightYear;
long int copyrightExtension;
char sensiblePatentCount;
unsigned long int trivialPatentCount;
boolean useDMCA;
boolean launchLawsuit;
boolean screwPeople;
};
The author of that piece thinks it's right for people to be compensated for the fruits of their intellect (eg, he should be paid for that article he wrote) but when it runs contrary to his own moral position (getting AIDS medicine to Africa or genetically modifed grains to thrid world farmers) he says morality should win out.
Easy for him to say since his words will never be of humanitarian use, and therefore never subject to mandatory public release under his proposed 'structure'.
As much as he want to change the vocabulary used in the IP debates, in the end it is a boolean arguement: Either there is or there is not Intellectual Property. True or False.
Changing the vocabulary may make for nicer conversation, and may even help to achieve comprimise faster, but it is an obfustication of the reality of the issue.
Disclaimer: I am of the camp that says the answer is "False, there is no such thing as IP and any attempt to suggest otherwise is an illusion thrown up by corporate fatcats looking to stuff their wallets just a bit thicker at the expense of the public and of reality.
-Tom
-Tom
The overriding concern to which citizens should adhere when deciding on how a society is structured is the question, "What incentives do we wish to create?" The Slashdot crowd seems to be overwhelmingly anti-intellectual property rights; I'm not sure whether it has adequately examined the consequences.
Consider the ideal pursued by many in the debate right now: total and absolute freedom of any idea. The inescapable consequence is that the ability of any one individual to capture benefits from that idea is gone. Thus the driving incentive to develop ideas is gone; I personally love studying astronomy, but I'm a programmer to pay the bills because I cannot feed my family on looking through a telescope.
So the paradox is that a society that jealously guards the rights of intellectual authors benefits the most from those ideas.
Here's a quote from another post:
The current IP regime is preventing inexpensive anti-AIDS drugs from being developed in Africa.
Consider the reality of the situation: a drug company spent millions of dollars to develop that drug for the purpose of making money. Maybe we wish they did things for different reasons, but unless we're willing to send their kids to school, it's really none of our business. If we abolish their intellectual property right to a particular AIDS drug, we gain the one drug for free use in Africa...but we can be sure there will never be another AIDS drug produced by that company.
The painful reality is that the profit motive is the most powerful transformative agent in the world. Abolish intellectual property, and you risk abolishing the benefit we derive from them.
If your bitterest enemies are people who hack the heads off civilians, then I would say you're doing something right.
Talking about rights in this context, or so-called "animal rights" or a "patients' bill of rights" cheapens the very foundational concept of rights.
Rights are inherent, God-given (natural), and inalienable. The US Constitution and Bill of Rights do not create or grant rights, but merely recognize them and establish guarantees of their protection.
Also, "intellectual property," is a terrible misnomer. To quote Thomas Jefferson:
Since I only lurk the ars forums I wanted to encourage anyone here who likes what Ars has to offer, to offer their support by subscribing to Ars.
Everyone (including me) hates to hear how IP owners are bearing down on users to squeeze out every dime from their users. Ars will go offline before that crew sells out so show some support if you dig their site (plz).
BOSTON SUCKS!
I agree with the basic premise of the article that those of us concerned with IP of the individual nature should be working toward creating structures that clearly define what's legal and what's not with the large corporations. However, We are a small minority. We are fighting corporations with BILLIONS invested in this area. Our only leverage is our rights which are defended by the Supreme Court. So yes I agree with you, but I think it's as likely to happen as stopping a war by getting everyone to hold hands and sing.
And so as Balinares astutely points out, we have a situation of a large group of consumers freely giving a chunk of their income to a record label or software corporation or movie studio, who give us a product that they "produced" (that must be the most abused concept in IP) by handing a small percentage of what they got from us last week to artists and crafters who have freely signed away their rights to ownership or significant income from the products of their labor.
What's wrong with this picture? What's wrong is that its all free. Sputter sputter yeah, but... But nothing. We make these choices and we pay for them.
Any abstract discussion of intellectual property is moot because of a simple fact: The price of freedom is ETERNAL VIGILANCE. A good constitution won't purchase your freedom. Better IP laws won't preserve your freedom. The reasons our freedoms are being abused is because we are lazy. Sony or M$ or Time-Warner-AOL offers us a sugary snack in the palm of their sickly hands and we eat it right up. The USA political machine offers us two bought-and-paid for suits in the most money-saturated presidential election of all times and we obediently fight each other over which stay-the-course status quo asshole will fuck the average citizen further into the ground for the next four years. We deserve what we're getting. Even among those of us who know better most cannot be roused to write a letter, boycott a product, or even vote.
It Is the Nature of Information to Transgress Artificial Boundaries
The GPL itself is not sufficient to satisfy the principles from the article because its emphasis on freedom overrides most other considerations, including compensating the authors in a straightforward manner. The GPL is fine for use in large swaths of the software landscape, where well-to-do computer professionals donate efforts for the public good. However, it's hard to see how the GPL alone would be sufficient to support most writers or musicians.
A different kind of public license could be written, though, that is intended to fairly balance all of the interests discussed in the article. It would allow copying and modifying of works by the user, as long as attribution is carefully maintained. It might allow for free redistribution; however, it would certainly prohibit redistribution or public performance for a fee unless royalties are paid to the author. I would think that Gnutella would be allowed, but Napster disallowed, because Napster was trying to make money indirectly. Redistribution for a fee would be non-exclusive; anyone could produce and distribute copies as long as the appropriate royalties were paid. Royalties terms need not be fixed, but they would have to be simple and well defined by the license. All parties would know exactly what to expect in terms of royalties.
Even if file sharing is explicitely allowed, the content creators would still see revenue. Free sharing is a self-limiting phenomenon. When people really like something, they want a token of it in the form of atomic matter (like a disk, a pamphlet, a T-shirt, whatever). If this weren't true, TV and radio would have wiped out IP decades ago. Any production of atomic matter will involve a fee, because it costs money to produce copies of these; you'd be a fool to stamp out CDs and then give them away for free. ('Free' distribution tied to some other condition or promotion would not be allowed, either; no embrace-and-extend.)
If that's not strong enough, maybe content protection would be allowed. However, the license would clearly define how the protection is used and what rights the end user has; these rights would be at least as strong as those implied by current analog media. Any protection schemes would be openly developed and implemented (and therefore, probably more secure than current schemes). Cracking the protection would be explicitely allowed; however, redistributing the plaintext results would not (even for free). Redistributing the encrypted form would be OK.
This kind of license would share an important advantage with the GPL: it would be a well known contract that anyone could choose to use. This provides a kind of pre-canned business plan that could make it easier to get started selling IP without giving up all of your rights to a distributor. The 'viral' aspects would be important, too. As more artists, users and distributors find out about the advantages of this license, more would choose to join in and avoid the current distribution oligarchy. It might even build up enough momentum to challenge the current order.
One of the core reasons that IP law is breaking down so much is the level that it has been subverted by corporations, the very thing it was invented to stop! The orignal idea was that invetors and creative people would be protected from theft from corporations.
I think this might more accurately be described as the core reasons you believe IP law should have been invented to stop. It wasn't.
The moral desire to protect author's rights may date from Roman times, but the actual legal mechanisms for enforcing copyright aren't really seen until printers guilds in England demanded them, (back in the 16th century), as a means of keeping control and monopolizing profits.
American copyright law is purportedly based on the incentive system for advancing society's good, not the authors.
The French, though, and some others too, do place an emphasis on author's rights, and the original authors in some places (Canada and others?) have rights which cannot be transfered to corporations or subsequent owners.
(ie: artists can place limits on how works are displayed, no matter who winds up owning the original. Something about some fellow and his geese statues at the shopping centre I vaguely remember).
These original author's rights are the only thing approaching your anti-corporate proposal that are even remotely tenable in today's world, and even in their case there are two things you should remember.
1) they're threatened under the increasing ubiquity of Berne and WIPO, and
2) part of the reason they're threatened is because countries use them as shields to achieve national political objectives and not to protect authors.
Of course, if you could get "them" to banish corporations, then you might get somewhere. But that's a whole new conspiracy/impossible dream, Quixote.
There is a common misconception in the old Soviet Union: we'll have a free market, we just won't let anyone have property rights, because that's not good socialism. Of course, you can't have a market without property rights.
The problem with the suggestion that
But one could license the rights to a corp, you respond. Fine, how about exclusive rights to use and sub-license, irrevocable, for the term of the patent? How is that different from an outright sale? It seems to me that this is really all-or-nothing: either you are free to dispose of your invention as you see fit (assuming that we are going to assign property rights at all) and it has value, or you aren't, and it doesn't.
This would work fine for folks who could innovate on their own, but how about engineers and geneticists who need multimillion dollar facilities? How could a corp justify paying out tens of millions for someone to develop a patentable invention, which they could then walk off with? Again, contractual ties which bind the rights-holder to the corp are no different than outright assignment to the corp.You point out that
I believe that there is no natural right to intellectual property. That's exactly opposite to the situation with physical property, where there certainly is such a natural right. The difference, of course, is that physical property doesn't copy well: if I eat your hamburger, you can't. If I use your idea, you can too. All you have lost is the monopoly.
This was obviously to work in the public interest, by encouraging productive work and its public disclosure. Enriching inventors is plainly not the aim. Nor does it suggest any pre-existing natural right.For all of human history, we have built on the intellectual shoulders of those who came before. It is right and natural that we should share ideas, and we are all better off when that happens. In order to encourage that, the US constitution (Article 1, Section 8)gives Congress permission
See what I've been reading.
In 14 years we won't even *have* mice.
It seems to me that the rapid pace of the advance of technology is in itself a cap on the lifetime of a patent, and the duration, instead of being shortened need not be capped at all. After all, if we don't have mice in a few years, a one click shopping patent will be irrelavent, so who cares about the duration of a patent. Ditto on any similar relatively minor innovation.
On the other hand, a really worthwhile innovation that really opens a whole new field is likely to be valuable for a long period of time, and is also not likely to realize it's true value for many years. Perhaps the current 20 year life of a patent doesn't offer enough incentive to companies to invest in the really risky, hard, costly and fundamental work that is necesary to come up with revolutionary technologies.
Although this often seems like a good approach - 3 to 4 years seems to be the right length of time for an Internet technology patent, for example - most technologies take about two years to go through the patent office. Typically, a patent owner will file a provisional patent application, develop their idea a bit further, and then submit the complete concept after fleshing it out to be more thorough.
In many cases, a single patent isn't enough to cover a product for its lifetime. For example, while building industrial machinery, my associates have frequently applied for patents throughout their job: they can file a patent beforehand demonstrating what they intend to do, during development they file amendments and patents on newly discovered processes, and so on.
By the time the hardware is ready, it may easily be five or six years since the first provisional patent applications were submitted - sometimes the key parts of the machine are only covered for a short time. Then, the marketing department starts selling these machines (it takes a few years to convince people that they need anything revolutionary).
Next, considering the massive investment that was required to build the new machines, the first few years of profits go straight to pay off debts and to build a successful corporation around the patent. Fortunately, the original inventor (whom we hope owns stock) can get some payoff on investor enthusiasm and an early IPO, although that's less likely in today's market.
A similar case might be the inventor of the cellular phone: his patent lasted the full 17 years, but he was simply never able to get the business off the ground during this time. His patent expired before cell phones caught the public imagination, and other companies ended up making the profits.
Now, contrast these two examples with the Amazon.com one-click patent. One guy sits around the table and says, "It's too difficult to place an order. I wish we could do it with one click." Another guy replies, "We have their credit card number cached - why not make it just one click?" It may have taken a month to go through QA and legal, but their patent will become active and profitable immediately.
It seems to me that the worth of a patent can be judged (among other factors) by how long it takes to put the idea into practice, and shortening the life of a patent would penalize inventions involving the most effort. Perhaps the patent office should be reviewing the time and effort it takes to build the product when they consider it for a patent? A product that can be built in one month should frequently be more similar to prior art than one that takes a year to construct.
In contrast to what Stokes supposes, for example, the "rights" that content owners now demand for themselves were never available to them in the status quo. For example, in the evolving concept of the consumer as a mere renter of content it might be construed as illegal to share books with friends and colleagues, or sell used books at garage sales.
Moreover, the discussion about "rights" of content holders in the digital age, follows exactly the evolution that has occurred throughout society in the past 50 years; which is to say a focus on rights but nary a word about responsibilities. Forget about worrying that the school system might be used as a propaganda tool in this evolution, schools are already little more than propaganda tools in the "rights" babble. The education system presents everything in cartoon form. This is why hackers and physicists alike, always learn more on their own or working with friends than they do in school.
Stokes somehow has it that the greatest threat to getting GM crop technology out to feed a hungry world are corporations and hordes of lawyers. I can make a cogent argument that the greatest threat is actually from sparkle-headed protestors who destroy other people property to vent their synthetic rage at injustice. These folks scare politicians, who haven't much courage anyway.
Stokes made not one useful suggestion. Want to fix the problem? Shorten the term for copyright and patents, in our time-compressed world patents have to pay for themselves quickly anyway. Use the education system to focus on both rights and responsibilities. And legislate an automatic life in prison sentence for anyone found using the DMCA to censore and silence their critics.
I love how you choose music as your only example. Music is a bit special, because even though fans are perfectly happy to pirate CDs, they'll still pay to see the band in person, and the band can make a killing on ticket sales. The same is not true of authors, painters, photographers, sculptors, programmers, nor in fact pretty much any other kind of artist.
Imagine trying to make a living as, say, a nature photographer if anybody could simply appropriate your work and sell it without you seeing any money from it. Does anyone here honestly think that (say) Ansel Adams would have produced such astounding photographic works if they were published without his permission, and nobody would actually pay him for his work? Would the world be a better place if that had been the case? Maybe, maybe not. But I'd be willing to bet that there aren't that many successful Taiwanese nature photographers (just to pick an example).
The idea of anybody being able to take a program I've written, and sell it without my permission and me not see a cent from it, really pisses me off. And I have a feeling that most of you chanting "information wants to be free" would feel the same way, if it were your software being used without your permission.
IMPORTANT POINT: before you flame, remember than in complete absence of IP laws (as in Taiwan), the GPL isn't legal. That's right -- Microsoft could steal whatever parts of Linux or other GPLed software they want, and use them as their own, and you couldn't do a damned thing about it. THAT's true lack of IP laws.
ZFS: because love is never having to say fsck
You've taken the discussion from an unconstructive "us vs. them" rights point of view and turned it into an unconstructive "us vs. them" belligerent point of view.
Here's a little bit of information for you: The WIPO holds all of the cards. Big businesses hold all of the cards. The only way we have half of a prayer of not being squashed like little bugs is if we discard the "us vs. them" point of view and work with these countries. This is NOT a zero-sum game; the key is to demonstrate to these companies how, if they structure their proposals in a different way, that they can benefit further -- and moreover, to show that with the current structure, that they are harmed.
Because the real problem is that overly reactionary policies cause businesses to stagnate. The people structuring these deals are not just doing bad things for little guys; they're doing bad things to their own companies and those companies' shareholders.
Throw away the "us vs. them" mindset. We really are all in this together.
"We hold these truths to be self-evident" is a nifty bit of flim-flammery on the part of Jefferson. He was easily smart enough to know that "self-evident" was a load of crap, but it was necessary to provide some kind of legitimacy for a set of "rights" that had virtually never existed before for anyone. If they were so "self-evident", why hadn't any of the monarchies of Europe ever noticed them?
This piece of text is the equivalent of getting all your friends to go to a movie by telling each of them that "everyone else is going." If they all believe that, then it will be true. Jefferson knew this, and clearly understood that rights are created by common assent, and that the main goal of the DoI had to be to manufacture that assent.
-rusty of kuro5hin
At least, how I understand it, is that it is information that wants to be free not that "we'd like information to be free". The distinction is very important: It means that you can't control information: Stuff will leak out no matter how hard you try to control it, sooner or later it will be known to many more than you intended. Some information will leak out, at considerable cost to the one who leak it, even the cost of your life. For example Stephen Biko, who was killed after revealing some details about the suppression in South Africa in 1977, if I remember the case correctly.
So, it is not about if somebody like information to be owned or not, it is about if it is possible to keep information under control.
Employee of Inrupt, Project Release Manager and Community Manager for Solid
You don't need complicated legal or moral rhetoric to see through the current (flawed) "IP" debate. Straight economics will do.
For scarce, excludable goods (like chairs) it makes sense to have strong property laws because this gives society the information it needs (through price signals) to allocate its resources most efficiently. Consumers support what they want (and much they want it) by allocating money, letting producers know what to make more off and what to make less of.
For non-scarce, non-excludable goods (like ideas, code, music etc...) you don't need property laws in the same way because society does not need to reallocate resources based on market demand. If I have an idea and I share it with you, now we both have it. There is no scarcity that needs to be managed. Therefore, society benefits MOST when all ideas exist in the public domain for everyone to use as they wish.
Copyright law was created to HELP PUT IDEAS IN THE PUBLIC DOMAIN. By giving IP producers TEMPORARY monopoly and ownership on their ideas, the thinking went, they would have more incentive to come up with ideas. Copyright law NOT originally conceived to give IP producers ownership of their work, nor was it conceived to ensure IP producers can make money off their ideas. Its original intent was to help society produce more ideas for the intellectual commons.
The point isn't "ideas should be free" vs. "ideas are property". Copyright was, and should be about structuring society so it creates more ideas for the public domain. Everything else is details on how to implement that society structure best. This is an economic argument, not a moral or legal one. If keeping ideas OUT of the public domain for a limited time helps create more ideas for it in the longer run, then that's cool.
Obviously, copyright has moved so far from this original intent that people think of ideas as property, and even folks supporting freedom of expression base their arguments on competing ownership and fair use rights, missing the central economic driver at the heart of all of this: how do we structure society so that it generates the maximum ongoing amount of ideas that enrich the public domain.
Copyright used to be a friend of the intellectual commons. It should be made a friend again.
Zimran
http://www.winterspeak.com
I have written an expanded analysis of what I think practical effects would be.
*Patent holders can wait for competing markets to mature and then sell their patent (and subsequently their tax break) to the highest bidder for a much higher price than they could under the current system (only speculation as to possible profits is available now.)
*People/companies could register patents without grinding research to a halt.
*Most IP lawyers won't oppose it since they get to keep their jobs.
*Bodies of existing law will only need small adjustment. The method for registering, transferring, etc. can stay the same. Only the reward will change.
*Companies won't necessarily oppose it because their patents retain value, perhaps even more if it is a good and useful patent.
*Congress will be very motivated to fix the patent office because not doing so is like throwing money out the window. Desire for tax breaks in the market will insure that.
*Patented technologies can be used as they were never intended perhaps accumulating far more market power/usefulness than if it was tied up in a monopoly.
*Ordinary people are scared by companies patenting genes (as am I) and recognize the need for reform.
*And most importantly it's simple to explain. Joe Sixpack gets it (I know him, I asked.)
I've got two objections to this approach:
1. It does not solve the complaint about market interference by government. While you don't have an 'evil monopoly' any more, you still have distortion of the free market by government interference.
Yes but the level of the distortion can be regulated by adjusting the rate of the tax break. This would work much like the federal reserve adjusts intrest rates. to slow or speed the economy. It might not even be a bad idea if the federal reserve were the ones to regulate the rates.
2. The tax break does not protect the inventor from being ripped off by a larger company that has a very strong financial position. Such a company through market power could easily expropriate an invention, leaving the actual inventor's commercial endeavor without any profits at all.
Ha HA, you are still thinking in terms of our monopoly patent world. In this kind of system there would as many companies making the product as the market would support. An inventer could, (and should) wait to sell the rights until the market is nearly mature. That represents the bigest tax break for a company that sells the invented/derived product.
The only way that he could benefit in such a circumstance would be to try to sell his patent rights to the large company, and hope that the tax benefits to said company would make it attractive enough to get compensation. This basically boils down to forced licensing to large companies, and is not what I think would lead to fair compensation of inventors.
If he/she/it has a good idea, a real vision, and noone is willing to be fair with buyout offers. The best piece of advice is... wait. When the companies can save a billion in tax breaks their offers should be a little more fair ;)
ooooo Ooooo more more. More Retoric.
This is a good idea damn it I know it is.
Novel theory: Modern Man evolved from psychopath
The motive behind the inception of DCMA and UCITA and more to come is not balance, ease of use, fairness, improving society and culture, the progression of technology, or consumer benefits. It is profit, and control. Nothing more. We're turning into the fucking Ferengi... it's so pathetic. How to coax and twist the system into a state to ensure that truckloads of money continue to pour in, regardless of whether they do anything to earn it anymore. I am reminded of that scene in Episode 1:
"My lord, is that legal?"
"I will make it legal."
"Mind, as manifested by the capacity to make choices, is to some extent present in every electron." -Freeman Dyson
"So, a reasonable extrapolation says that Michaelangelo was not the only artist around at the time. "
Thats right, but he was one of very few.
I can't believe I have to point this out - you are talking about a time when by necessity 99% of people were illiterate, and the number of man-hours that a society could support being spent on non-essential labour (eg arts) was a tiny tiny fraction of what it is today. Today, an hour of work buys enough food for a week. Parents of common blood can now afford to support their give kids through 12 (or more) years of education instead of work. Think about these things.
If anything, the increase in our arts community over the years is a fraction of what it perhaps should be when compared to the much larger growth of similar non-essential pursuits resulting from the mechanisation of essential labour.
Talk of artists then and artists now without consideration for the changed cost of living is insane.