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Fair IP Laws?
epsalon asks: "Most of us are against the current status of Copyright and Patent law, and
are outraged from stuff like the DMCA, SSSCA, et al. We know that this system is wrong, and must be changed. However, nullifying all IP laws is IMHO a bit too strong, because there will be no incentive to create anything for mass market sale except out of
goodwill, or for leveraging other revenue (aka Linux). Assuming you could rewrite the entire world IP law, and even create a new
social system, my question is: What laws can be written that will be fair both to content creators and to users, while cutting the middleman?" Here's your chance to do something other than complain about the current state things. How would you revise or restructure IP and copyright law to make both sides of the fence happy?
In the first place, it was created to protect individuals against corporations. Now it's used by corporations to take advantage of individuals. There are just too many advantages to having no restriction on the flow of information. As the poster put it 'leveraging other business' should be the only way people who make information, be it text, code, music, etc... make money. It's the way I and everyone I work with makes money.
It's also the way I spend a great deal of my free time.
Patents, copyrights, and 'intellectual property' has got to go. If not, then when we, as a society, manage to convert fully to a non-scarcity based economy, those who have the ownership rights to information will be kings and everyone else will be paupers.
I wrote an essay for my website about this subject some time back. You can find it here:
http://www.furinkan.net/display.php?pageid=75
The one exception that I would make to getting rid of all IP laws is the use of Trademarks. These are less in the way of making a piece of information which *should* be able to be copied freely uncopiable, but is a lot more about an individual or a business uniquely identifying themselves.
Other than that, IP law has got to go. End of story.
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We'd be fine if we went back to the Patent and Copyright law as it existed before the recent (last 20 years) unwarranted expansion of both.
We'd go back to the 17 year copyright with 17 year renewal, and eliminate "soft" patents including "software" patents, business process patents, etc...
Going back to the basics on both fronts would eliminate most of our current problems.
Our founding fathers had it right in the constitution: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
We know that this system is wrong, and must be changed. However, nullifying all IP laws is IMHO a bit too strong, because there will be no incentive to create anything for mass market sale except out of goodwill, or for leveraging other revenue (aka Linux).
This is an assumption that is stated so often it has become arguably an axiom of intellectual property proponents.
But, the history of the human race, indeed of our own civilization, doesn't bear it out. Bach, Beethoven, Mozart, Ulysees, Shakespear, Van Gogh, Michaelangelo, and other artists too numerous to mention had all the incentive they needed to create the greatest works our civilization has ever known, all without the existence of copyright or any other form of "intellectual property."
There are other ways to insure artists are compensated, without granting them (or, more likely, their publishers) an exclusive monopoly on their work, for any length of time.
It is unfortunate that our society never even discussed, much less considered, alternatives to copyright when the republic was founded, instead saddling us with an approach whose original conception was designed to facilitate censorship of the press, a design flaw which a little tweaking to help give something back to the artist is insufficient to alleviate.
We should be discussing alternatives to copyright which can be implimented to insure that artists get compensated for their work, without imposing artifical, government mandated monopolies upon our society, monopolies which are antithetical to free markets, to freedom of speech, and ultimately, to freedom itself.
The Future of Human Evolution: Autonomy
All copyrights must be held by a private individual. No corporate entity may hold a copyright.
Copyright terms may vary up to a period of 17 years (depending on content type -- To Be Specified), with a single renewal for the same period of time
Copyright expires upon the death of the copyright holder.
Copyrights cannot be assigned to another entity
If a work has some form of access control, that access control must be disabled when the work enters public domain
Reverse engineering any sort of access control is legal
Patent
Patents must be held by individuals, not corporate entities
Only physical objects and processes may be patented.
(Corrolary) No patent shall be granted for algorithms or business processes
A working implementation of the patented process must be provided (upon request of USPTO)
Naturally occuring results of processes may not be patented (ex: DNA)
The USPTO must conduct a good faith search for any prior art
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
The problem with your plan is that there would be no sharing of information. If you outlaw intellectual property, then there is very little incentive to share ideas with others. That would basically mean that companies and people would hide their ideas, and much time would be wasted by having multiple companies repeatedly inventing the same things.
The idea of intellectual property laws is to encourage sharing of ideas by granting exclusivity to the creator for a limited amount of time. I believe that idea has been corrupted by corporate interests, but I don't think we should throw out the baby with the bath water.
I don't practice what I preach because I'm not the kind of person that I'm preaching to.
All laws and systems exist, in the end, to ensure the Greatest Good for the Greatest Number.
Thus the goal should be to ensure sufficent renumeration for the creators to have an incentive to create while ensuring that the products of their creativity are made available as soon as possible to serve as the foundation of further creativity.
The question, of course, is quantification of the length of time; 3,5,7 or 99, years.
Secondary question: should all forms of IP have the same protection? Arguably, a patent should expire, but what about a Trademark?
IMHO the Constitution got it right with 7 years for a patent. I cannot see ANY justification whatsoever for Copyright to extend past the life of the author. Trademark *IS* important, if you buy a Plextor drive or drink Jolt you have a right to be sure that the product you get is the product you expect to get; otherwise it's fraud. But I do think that Trademark should be subject to Fair Use, especially in the realm of satire and product review.
"Our" core geek mantra is sound "Information Wants To Be Free". The greatest good for the greatest number is best served by erring on the side of too free a dissemination of information rather than too restricted, if err we must-and err we will!
"Everyone is entitled to their own opinion, but not their own facts."
Your "no-labor, no-money" thesis sounds awfully flawed.
So you're telling me that if two people enter into a private agreement, where one person gives a thing or idea to another, and in return, the other agrees to pay that person money, in exchange for the use of that thing or idea, for the rest of his or her life - that the government should make a law making such agreements illegal? Such a law would surely be unconstitutional, as well as impractical (how would you enforce it?)
Also, I can think of one specific instance of a pretty good musician who would starve with your plan. Andy Partridge of XTC, writes pretty good music, and records some pretty good music, but he has an anxiety disorder which pretty much precludes public performances. How can somebody like that make a living? I guess he better get a job flipping burgers or something, society can do just fine without his Art, right?
You're trying to turn this into an ideological argument of black or white, right and wrong - placing the whole notion of copyright as wrong and evil. When clearly there's a middle ground that could be found which would be beneficial to all. The problem with the broken IP Law system as it stands today is that the original interests of "public domain" are not represented by the current American zeitgeist of "Capitalism above all else". Because Capitalism was our sword of vengence in the holy war against Communism. As it turns out, it's a double-edged sword, and it's been turned against us by greedy corporations who exploit the concept of "Freedom" for their own personal gain. The middle ground, the balance has been lost. We've fallen down the slippery slope on the side of the giant corporations who wield too much political influence.
The root of the problem is the influence. Remove that, and the voice of the people will be heard instead, and a balance will be restored. We should not tread down the other slippery slope of elimination of the concept of intellectual property, because things are different today - today's world, with today's population, and a technically advanced race of humans, NEEDS capitalism to survive. It NEEDS the concept of intellectual property. People need to profit from their ideas. We just need reasonable, balanced limits to be set. Quite departed from where we are now, and where you seem to want society to head.
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
Once a patent application is published, anyone can send prior art to the relevant patent office. This is one of the reasons that patent applications are generally published.
However, you've got to provide the evidence.
On Copyright:
Copyright should last 25 years maximum.
Copyright should be non-transferable and non-extendable.
Copyright should always allow fair use and duplication by individuals.
Copyright should only prevent outright mass-distrubtion.
Copyright should only prevent this with law, not with technology (which means if someone's violating copyright, you notice them doing it and track them down and prosecute... you don't hopelessly try to manpiluate technology to prevent it in the first place)
On Patents:
Patents should last 10 years maximum, ever.
All patentable things must meet the following criteria:
1) Non-obvious - a technical person (or technical review board perhaps?) in the field in question wouldn't consider this a trivial and obvious solution.
2) No prior art - it has never been done before.
3) No inclusion of prior art - The work being patented must be the sole intellectual work of the patentee. It cannot contain intellectual work of others, even if those others didn't patent their work (example, patenting a peice of software that relies on algorithms you got from a programming magazine... you could still patent portions of your software, but not that portion, and no "portion" that contains those algorithms).
11*43+456^2
Didn't the patent office used to more-or-less do their job correctly back then too?
Unfortunately, no (not if your conception of what they should be doing is anything like mine). The difference is this: a few decades ago, it was not generally thought that you could patent software or methods of doing business, so very few patents were applied for, and granted, for these things. Today, these areas are patented quite regularly, these areas impact the growing information technology sector, and people are up-in-arms about it.
The problem, however, is not that there is something intrinsically worse about patenting software or methods of doing business, it is just that the impact of patents (which is to screw lots of people for the benefit of a few) are felt by many more people today, given the widespread patenting in these areas. While it may have seemed like the patent system worked a few decades ago, you likely wouldn't think that if you were one of the people who had their entire business taken away because of a patent you had never heard of (and had no reason to know of). Before we jump to the conclusion that patents are just fine over there, in that other field where we don't try to make our living, stop to think how you'd feel if you were one of the folks working in that field.
I am happy to see people waking up to the fact that something is terribly wrong with the patent system, but just because fewer people got ensared by it back in the good 'ole days doesn't mean that it was any better (structurally) than it is today.
-Steve (a former patent attorney)
Democracy is a poor substitute for liberty.
How about making copywrites non-transferable. The creator of something retains the original copy write. If they decide they want to be paid for their product, they can sell a copy of such a product to someone. They can arbitrarily decide whether or not a certain use of their invention violates the copywrite. That way, those people that want to keep their ideas to themselves can, and those that want to allow their stuff to be availible can. Instead of RIAA deciding that downloading the songs is bad, let the artists decide. And let them take the people to court. Everyone should be able to decide what happens to their own inventions, not some corporation, not some publisher, the individual. And when the individual dies, the item becomes public domain, none of this stuff where Michael Jackson owning the rights to the beatles music.
T Money
World Domination with a plastic spoon since 1984
Well, I'd tell you some constructive criticism, but it's patented, you see, so we'll have to arrange a licensing fee before you start building your software patent litigation career based on the mind-blowing information I have to tell you.
Or, let me put it this way. Imagine where humanity would be today if 300,000 years ago, Oog the caveman had been granted a patent in perpetuity on his wonderful invention, FIRE. And that this patent was enforced. For the next 300,000 years, people might try to find ways around licensing Oog's invention, and probably fail miserably, because they have no sound foundation of knowledge to back up any other way to heat things. Possibly leaving things in the sun on a hot day, but those aren't really times you want stuff to be hot anyway.
Without free use of fire, we'd be eating raw antelope meat and dying from parasites and whatnot. But that's beside the point. Nobody would have invented bronze, or iron, or any metal for that matter. Hell, we couldn't even fire mud-bricks to build houses, so we'd be living in tents made of animal skins and sticks, that is, when we weren't running from predators attacking our villages at night because we couldn't chase them away with fire.
Oog becomes the richest man in the stone-age, with many wives. But he's not living in a mansion. He's still living in a fucking cave.
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
Intellectual property is a corporate (or individual) asset used to obtain revenue, just like computers, desks, chairs, etc. As such, it is treated as a capital expense under Internal Revenue Code. The full cost of producing the IP must be amortized according to the Code, and amortizations are a time-limited period chosen when the property is first claimed for deduction.
So, why not just tie the protection of said IP to its amortizations? Once the IP has fully capitalized, it should no longer qualify for protection and then fall into the public domain.
This would make IP holders think *very carefully* about how long they want to take to amortize -- it would make them choose a balance between tax savings and IP protection.
We dislike software patents because we do not see software as a product. We do not pay for the software that we use, and we do not charge for the software that we write.
Patents make (some) sense when a product is involved: if you want to produce my invention as a product, then you have to share some of profits with me. If the product is a physical thing, then it is produced and sold in a market, so there is always money involved. Since our software is not sold (many of us (see other posts) don't even believe it makes sense to treat information as something that can be sold) there is never any money involved: none for us, and none to share with the patent holder.
In essence, there are two different ways of looking at software: as product that can be sold, and as community developed and Free. These two dichotic attitudes can coexist right now because for the most part there is little intersection: my computer does not run a single proprietary program, and I have no need to. I don't bother people who do sell software, and they don't bother me. But software patents break this boundary: they are legal invasions by those who view software as a product into the world of us who don't. If an algorithm that we need for that program is patented - that does not compell us to play fair with the patent holder, that restricts us completely from having anything to do with it.
Ask us what we feel about software patents if they affected only proprietary software and left free software alone, and I think most of us wouldn't really care. The business people can play there little games ad infinum for all I care.
Also, you ask for "CONSTRUCTIVE" criticism against software patents - but the person in support of patents is the one asking for proactive legislation. Why don't you give "CONSTRUCTIVE" reasons why software patents are needed? Most studies have found that they are not economically beneficial at all, and there are many examples of how software patents hold entire fields back (look at encryption - modern encryption was invented in the late 70s, yet it was nearly unused when the patents expired in the late nineties, only to have become an everyday thing today).
1. Time Limit
The pace of change in software is radically different than that of, for example, heavy industry. Software companies that cannot recoup their software R&D investment within a few years are malfunctioning, and should not be protected from the free market. They should die and their resources should be incorporated into faster companies. Software is one of the most aggresively self-catalyzing fields of research in history. To assume that the patent time frames that make sense in material sciences are equally valid in information science is irrational.
2. Novelty / Non-Obviousness
I would assume that this is most related to the quality of examiners. My personal example is the one click patent. When I was developing an online computer hardware sales sites in 1996, my boss asked if we could use cookies to store a person's information, allowing them to checkout more rapidly. He didn't get the idea from Amazon, and wasn't an expert in the field. The solution was obvious to anyone who knew anything about online shopping and cookies.
I am not sure if the standard is obviousness to laypeople or obviousness to those in the field. If it is obviousness to the layperson, I would also find this to be counterproductive. Computers are such a rapidly advancing field that even IT professionals rarely have a solid comprehension of areas which are outside their specialty. To expect a layperson to even understand what a software patent is talking about strikes me as highly dubious, let alone using them as the standard of novelty and obviousness.
Patents are most necessary in areas where it is EASY to copy inventions. If everyone needed a few million $ worth of hardware to make the invention, the patent doesn't add that much value against the masses of people who want to copy your invention, it only protects you against the few who have the actual resources to do so.
I completely agree with this, and think you have left out a significant correlary. Patents are least necessary in fields where research and development costs are low or easily recouped. That is, if the cost of developing a new technology is low, or the speed with which the investment can be recouped is high, the length and/or force of a patent should be reduced.
Patents are not intended to be an unquestionable monopoly in the Ayn Randian / solipsist sense. They are intended to maximize the economic benefit from R&D investment and from dispersal of technology.
Stop-Prism.org: Opt Out of Surveillance
I believe the fundamental reason why software patents are viewed as flawed is cultural. Software developers are taught from day one that modularity is the best way of creating software. You start with your toolbox of parts (perhaps the functions provided by the OS and standard C libraries), and you build them up into more useful parts, which you then package as a new library. You then integrate those parts together into a program, which solves a problem in a useful way.
The software engineer builds up a toolbox over time -- perhaps by creating lots of programs, by sharing with other engineers, or by purchasing libraries from other companies. It is assumed that if you write some code starting with just what you think up and what you find in your (legally acquired) libraries you end up with a piece of work that is yours to use and sell. Under copyright law this is true -- you only break the law if you copy someone else's code without their permission. Since it is clear who owns each piece of code, you know clearly if you are breaking the rules.
Patents don't work this way. It is possible for an average programmer to write a program and not know they are violating a patent. The program can be used and/or sold for years without any clue that a patent is being violated. If the patent owner finds out, they can sue! If patents were only granted for truely novel software techniques that were not likely to be independently re-invented, then this would not be a problem. But this is not the case -- programmers have a valid fear that any piece of code they write might be violating somebody's patent.
The software design process (as we know it) has no easy way for incorporating a patent search. Fear of being blindsided by a patent violation can fundamentally change how software development is currently done, by adding significant extra time and manpower to any project to ensure it is not infringing on any patents.
As an attorney, would you like it if you could be randomly hit by lawsuits from other lawyers even though you are just doing your job? If for every case you prosecuted or defended you had to think up entirely new arguments on behalf of your clients, out of fear of re-using a patented argument that someone else has used before? Programmers like to create software, and like to use available techniques for doing so. Having to constantly worry about which techniques are currently "allowed" or "forbidden" just detracts from the real job to be done.
Try and sell this idea to the software vendors if it's so great. I think you'll see few takers.
Remember if even one patch, security enhancement or minor improvement is made after initial purchase, the vendors will probably try to extend the Copyright by the date of the change. That would certainly be the what would happen if it were part of the Copyright law. Sure, the initial package's Copyright expired in 5 years, but the enhancements you wanted, those expire in 20 years.
This seems overly complicated and fraught with loopholes. Just make the Copyrights expire in a fixed amount of time and be done with it.
Remember, that IP law isn't about letting the Markets decide, or making inventors/authors rich, it's about promoting progress. A simple system, applied consistently is the best way to do this, I think.