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

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.

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.

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.

;-)

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.