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?

Comments

As far as patents are concerned

[dmanny]

I would really like to see a period of public review prior to issuance

Faster into Public Domain

[floppy ears]

The best change that could be made to IP laws would be to speed up the time that it takes a work to enter the public domain. Maybe 10 years or so of protection would be good -- after that, no more protection.

Content providers would still have an incentive to create content -- lots of money could be made during that 10 year period. But overall, this would drastically reduce the bad consequences to the public from IP laws.

Just read the Constitution, fer chrissakes.

[Pop n' Fresh]

It was originally designed to balance the rights of the copyright holder against those of the public, and the interests of creating an 'intellectual commons'. If we could just strip away all the BS the content industry has tacked onto copyright law over the years and go back to what we started with, that would be an improvement. Isn't the expiration of copyright now almost as long as it's been since Jefferson died?

Re:Just read the Constitution, fer chrissakes.

[MoneyT]

I'm saying that it's up to the artist to decide what is fair use of his recording. No company should have the rights to your invention, regardless of how much money they pumped into it.

if Band XYZ releases the original recording of a song writen by Q, and Band HIJ wants to perform (and/or record) the song, they would get permission from Q, not from XYZ.
However, if someone wanted to broadcast XYZs recording, they would have to ask XYZ for permision.

Give companies control of information they create

[Anonymous Coward]

Why would it be so bad if companies had copyright over information they create, as long as they wish to produce it, as long as there are laws that also enforce turning it to public domain after the company doesn't sell it for some period of time (5 years?)

Also, there would have to be strong enough fair use laws that mandated easy access to content in cases of fair use.

This isn't a troll, btw, I really have started thinking recently that something like this, with enough safeguards, would be good.

Copyrights on software should be shortened

[JordanH]

Seeing as the whole purpose of IP is "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;", it's absurd to hold a copyright on software for 70 or 90 years or whatever the current law holds.

It's just way way overkill. Rather than promoting progress and the "useful Arts", the current system just extends a monopoly into the indefinite future and discourages anyone from building on your work constructively.

Really, if you can't get enough benefit out of writing a piece of software in 10 years, then it's someone else's turn. Note that you could make modifications in those 10 years and those could be copyrighted, but let the original software go back to the public domain in a reasonable time.

Ten years is just notional. I'm not sure where I'd set it, but I know 70 years is ridiculous and the 90 years granted to corporations (most Software copyrights on proprietary software is probably held by corporations) is even more out there.

Software is different than other IP. It's greatest benefit to society is in it's use and in it's flexibility. A sensible policy wrt to software copyrights would encourage more flexibility and more use.

Just a start...

[Dr. Bent]

This is a huge issue and I'm no lawyer, so I'm just going to give my opinion on once piece of this puzzle:

EULA's are out of control, and they shield software companies from lawsuits which would motivite them to produce better software. In an effort to stop this I would propose the following:

1) EULA's for commercial software must be agreed to BEFORE the software can be purchaced. If software companies do not provide a mechanism for this then they must allow users to return the software for a full refund.

2) Implied warranties like the warranty of merchantability and fittness for a particular purpose cannot we waived in a commerical software EULA. Free (as in beer) software can be distriubuted 'as is', but the second you exchange money for software, you take responsibility for it functioning correctly.

I realize that this will increase the cost of software in the short term, especially as companies scramble to get their software up to code before the changes go into effect. However the long term effect of ignoring faulty software cannot be overlooked, and the sooner we do something about it, the better.

One thing I've NEVER seen here....

[Compulawyer]

... is a CONSTRUCTIVE criticism of software patents. I've seen plenty of comments that reduce down to "patents are bad" but no one ever says why. As a patent attorney who writes and litigates software patents I'd like to find out what exactly people are against with patents in this area. Is it because the USPTO has so few good examiners in the area that there is a sense that the quality of software patents is poor? Or is it simply that because there are so many talented programmers out there who can write code that does the same thing as the patented code that they don't want any impediments whatsoever? As for the former, I agree it is a concern, but one the USPTO is trying to address by hiring more (and more talented) examiners. As for the latter, I have serious problems because I see this as simply asking for special treatment in the eyes of the law.

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. Every other industry has dealt with patents for years. It is time for the software developers as a whole to do so as well.

Re:The concept of intellectual property has got to

[joemc79]

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 [furinkan.net]

Your analogies in this essay are either incorrect or irrelevant.


The prehistoric example is simple. A refugee from a war loses most of his tribe to the invading barbarians, but manages to escape to the next village. If he tells those people of the invasion and moves on, they will help themselves by preparing for the fight or evacuating, and probably taking the refugee with them out of thanks or desire for his experience. If he were to stop at the village, get food and water, and then leave without telling everyone of the approaching ruin, the survivors of the resulting carnage would probably not be so kindly disposed towards him.


This makes no sense whatsoever. It means nothing to IP law. In the above scenario, with or without IP laws, the scenario could be the same.


A more recent example would be the various gold rushes, both with real or imagined minerals. While there was very little real gold in California, the uninhibited spread of information about all the new business opportunities in the area in the late nineteenth century turned an otherwise undesirable region into the one of the hottest business centers on the planet.


Again, you're trying to say that somehow a lack of IP laws was responsible for the west coast's success. Wrong. The idea that gold might be out there helped, but your assertion that flow of information such as news events would not have been possible due to IP Laws is bogus.


The concept of public libraries, which originated around a century ago, is also a clear demonstration of this fact. I don't think that there is anyone who doesn't consider the nation's public libraries to be noble institutions. When they first starting being constructed, however, the publishing industry was in an uproar. People cold go to libraries and read for free rather than pay the publishers for books. It is almost a direct mirror of the current uproar the record industry is making about MP3's and file-trading services such as Napster and Gnutella.


Again, this is a flawed analogie. A library provides access to a single copy of a book for a single person at a single time. They paid the publisher money for that book. Napster provided access to anyone, anwhere, anytime unlimited copies of that item without ever buying that item.
In the library example, the library increased the efficiency of the book by letting any number of people use it over it's lifetime.

Also, the central part of your argument that infinite supply = 0 cost and that the only cost should be in delivery, is rediculous. Record companies spend money to crete music. Software companies spend money to create software. Authors and publishers spend money/time to create works.
You're advocating a communal system that would make any career mentioned above worthless. Your delivery pipes would have NOTHING to deliver since there is no incentive to create.

Return to the "good ole days"

[schon]

The answer (at least to me) is pretty simple:

For copyright, set copyright dates in stone - fixed term (none of this "life of the author +X years.) Each work gets the same amount of protection, and there is no discrimination.

Second, return to a registration system. If you want copyright protection, you must register for it. You must register ALL incarnations of something to get copyright for any of them ie. you must register your source code AND runtime, if you want protection for the runtime. That way, once the work falls into the public domain, the public is guarateed access.

Third, registration would have to be renewed every so often (5 or 10 years.) This would prevent "IP hoarding", and eliminate the current problem with "abandonware."

For patents, I don't think the system is horribly flawed, it's just poorly implemented. Enforcement of the (original) rules needs to done. (ie. You can't patent something you can copyright, better checks for "originality", and for scientific merit.) If the idea is simple, but the implementation is difficult, no patent.

Trademarks? No opinion. Just don't start doing it like Germany ("Hi, I'm a lawyer, and you might be infringing on a trademark. You must now give me money for telling you this."), and we'll be OK.

Charge for it in geometrically increasing sums

[ChenLing]

For the holder of the copyright / patent:
For the first year, pay $1.
For the second, pay $2.
For the third, pay $4.
Then $8, $16, $32, etc....
After 10 years, you would have paid >$1,000.
After 20 years, you would have paid >$1,000,000.
For different industries, you can set
different starting points (so a $1 starting point could be good for books, maybe $1000 for software patents, etc).
So short term, anyone can benefit, and long term, more things will go back into the public domain.
That way, if it is still economically sound for you to hold your copyright/patent, you still can.
If not, it goes into the public domain.
The money collected could help fund basic research.
Oh, and this should be applied retroactively to all current copyrights/patents (take that Disney!).

Also, maybe allow copyrights be to held by coporations, but say every 5 years, it has to go back to the person/people who created it. Allow them the option of re-licensing it back to a company though.

not to punish success

[isotope23]

But to generate tax revenue!
The IRS could be reworked for this purpose.

If the governement is providing IP protection
does it not deserve revenue from that protection?

IMO This would tend to be a more honest way to
generate revenue than from income tax on individuals. In addition it would push corps to ditch IP that is not profitable into the public domain.

;-)

Voting sucks

[rworne]

You can be damned sure competitors would love to participate in voting. Voting against all patents supplied by their competitors.

This can even bring about a new problem... IP cartels. Say IBM, Sun, Apple, MS and AOL qualify tons of reviewers and team up against ... well ... everyone.

Strategic partners get approval votes, everyone else gets rejection votes. They get their IP protection as patents and everyone else's (potential) IP protection for free.

Voting is ripe for abuse. Better yet would be hiring consultants from professional/academic fields by a system similar to jury duty? Have qualified applicants in a pool and select X number of them randomly. That would prevent burn out, allow a rotation of reviewers, and if made compulsory, save the Guv'ment some bucks ($5/day for patent review duty, whee!)

Re:I'll bite

[Compulawyer]

You've gotten many good arguments so far. I hope you read them, too.

I do my best to read all the comments people post in reply to mine. I post because I enjoy the discussion and want to hear what people have to say.

Especially the points that software is mathematics and software is not a machine or a process for physical transformation.

The courts have (rightly under the present statute) held that anything under the sun created by man is patentable. I have a hard time believing that software developers (of which I am one), who supposedly are confortable with abstractions and models, cannot understand the basics of intellectual property which is itself an abstraction. This is not "pure mathematics" as you suggest later -- it is a highly specialized process running on a machine that has the attributes and qualities of an algorithm. However, any one program does not occupy the entire field of mathematical processing the way a "pure" algorithm or mathematical theorem does.

Most extant software patents are entirely bogus, due to prior art or obviousness.

I challenge you to find some concrete factual support for this assertion instead of simply offering an opinion.

Not your industry, which you probably call a profession. None of the documents that you have ever produced as an attorney are patentable.

True. However, I am also a Software Engineer and some of the things I have developed ARE indeed patentable.

Why am I not surprised that you are not interested in constructive criticism at all and have already made up your mind?

You could not be further from the truth. I AM indeed interested in others' comments or I would not post on /. . However, my experience has convinced me that software patents are intrinsically useful and beneficial. The fact that I present arguments in favor of my point of view does NOT mean I do not listen to or consider opposing arguments. I just have not been convinced yet that the contrary point of view is correct. If and when I am, you can be sure I will post it on Slashdot.

Intellectual Property

[aebrain]

If we could start with a tabula rasa regarding intellectual property - which covers patents, copyright, and trade secrets - we'd best first off decide what we're trying to achieve.

1. Attribution. If A invents B, then we want the world to know that B is A's invention. This is for psychological gratification as much as anything. Many /. readers are coders, and know the "warm fuzzies" you get when you create something that you can be proud of. Singers, Songwriters, Artists in general get the same buzz. Some things money can't buy.
2. Improvement. If A invents B, then C should be able to look at B and figure out that B' would be a significant improvement on it. It's this that has spurred the "Open Source" movement, which exposes the internals of Software so that peer-reviewers can spot blemishes.
3. Incentive. The original UK and later US model for patents was intended to give encouragement for people to invent new and useful methods and devices, basically to spur the improvement of what we now call technology, arts and sciences. Rather than reward mere copy-cats and publishers, a time-limited monopoly was granted, during which time only the creator had the right to publish or implement his or her work, or licence this publication. This incentive was entirely Financial - probably the best way in the 18th century, but may not be the best way of doing things in the 21st.
4. Facilitation. Any IP legislation must actually facilitate the widespread distribution and adoption of new and improved methods, artworks and devices. So a creator who wishes the protection of the law has certain obligations not to withold it's adoption for general use. Alternately, they should be free to keep it entirely to themselves, in which case the law should not protect anything other than the attribution, if that. Similarly, something that's already in general use should not be suddenly monopolised by an "inventor", be it a generic name such as Aspirin or ROT-13 or similar Caesar Cypher encoding. Once in the Public Domain, always in the Public Domain.
5. Inalienability. Some moral rights should be inalienable - the owner of the Intellectual Property has some rights and obligations that may never be destroyed or transferred. Should an artist who's painted a Masterwork have the right to burn it and all copies? No, for that would diminish the world's stock of intellectual property. Naturally if the creator doesn't have this right, neither does anyone else. A creator hasn't got the right to allow someone else's name to appear on their work. Exclusive rights of publishing should not be legally enforceable - once the creator has set a certain price for copying, then anyone at all should be allowed to make a copy, for that price. This will stop books and other works going "Out Of Print", as (possibly inferior) copies could be made from an existing edition, via photocopy or MP3. In law, if you make a copy of something - be it a backup, to give to a friend, to put on your MP3 player, or to publish on a million CDs - you should pay the creator during the period of his monopoly for each copy. And so should anyone else, the same amount.

Are all of these requirements feasible to implement in any legal structure? Certainly. Are they feasible to enforce? That's more difficult. Getting someone to pay 0.01c to the production crew who made Buffy the Vampire Slayer every time you use your VCR to record this week's episode requires both the goodwill of the VCR owner, and some non-trivial technology to make it trivially easy. Otherwise people won't bother.

Rather than have a single /. post propose the magic solution to all IP issues, I'll restrict this one to just canvassing what the issues are. Any I've forgotten? Any that you think shouldn't be on the list, or should be modified?

An amusing consequence - Aliens on earth

[usiems]

I always had problems this the term "intellectual property". How can you own ideas? That's as if one could own the air.

Imagine what could happen if aliens contacted the earth and these aliens were so advanced and old, that they had invented everything we could dream of, and more. Would these "prior art" invalidate every patent on earth? Perhaps this would not happen, but what about the new technology? What if this aliens would share their knowledge with us. Would this knowledge be patented? By whom? By the aliens? What would happen if they demanded ridiculous fees for their patents? Remember, they have invented everything! And if this aliens were not allowed to patent their technology, who would do this for them? Their (human) lawyers? A straw firm? The aliens could wreak havoc on human development just by using their patent rights.

I must admit, I find this thoughts quite funny.