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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?
What was wrong with the laws we had 10 years ago? IP owners got protection, but didn't get to run your life. Sounds roughly fair to me.
Didn't the patent office used to more-or-less do their job correctly back then too?
"First thing we do, let's kill all the lawyers."
--Shakespeare, King Henry VI, Part II, IV, ii
Yes, yes, I know the quote is out of context, but it's still damn insightful.
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?
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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.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
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;"
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.
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.
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.
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.
Laws affecting technology will always be bad until enough techies become lawyers.
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
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.
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.
If you require them to review comments from thousands of people after an application is published. the time needed for a patent to issue is likely to double. Imagine the inventor waiting 10 years for a patenbt to issue!
Good points, but if administered correctly, shouldn't submissions actually help the examiner? I mean, practically speaking, very few patents will actually be commented on, and when they are it should just point examiners in the direction of some prior art to aid in their searches. The submissions might become part of the file but it would be up to the examiner to use them.
If once in a while a patent does get thousands of submissions, well there's probably good reason for the all the interest and maybe the examiner should spend extra time on this one.
Subjecting patents to public scrutiny might also decrease the amount (or at least slow the increase) of frivolous patents and even end up decreasing the overall workload somewhat.
You'd probably require a minor fee per submission and limit the comments to a listing of suggested prior art, and possibly very short and basic rationale regarding obviousness etc. The first measure would stop them from getting too many crank submissions through e-mail, the second measure would limit the ability of big industry to abuse the process with persuasive lobby efforts as well as putting a cap on the amount of work required. At the end of the day, establishing the facts through prior art would still be the deciding factor.
You might also need to add an administrative layer to handle and sort the documentation, but this should be nothing wholly different or unworkable.
I don't see it as being unlike the open source process. Yes you do need to expend effort and resources to manage and administer the input of the volunteer base, but if you do it right it should get you better results with perhaps less direct effort than doing it all yourself.
My next sig will be ready soon, but friends can beat the rush!
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.
"You have the option of insanity. I do not. And that makes me crazy!" - Brian to Angela, My So-Called Life
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.
;-)
Service guarantees Citizenship! Questions Guarantee GITMO.... Amerika Uber Alles!
For almost any software problem, there are a thousand ways to solve it. A good programmer will pick one very quickly. Another equally good programmer will pick a completely different one, in about the same amount of time. Arguably, each of the thousand ways is non-obvious, even though any skilled programmer will pick one, because even if you take ten programmers and ask them to solve the problem, there's only about a one in a hundred chance than any of them will pick the one you're testing for obviousness.
By the standards of any other field, most full-time programmers come up with a dozen or more patentable ideas every day. Unlike in other fields, where an idea takes an expensive cooperative idea to develop, the programmer also implements them about as fast as he invents them, and it costs almost nothing to distribute the development. The main barrier to patenting software is not finding ideas worth developing, but the cost of the patent process itself.
Patents don't really promote invention. They promote factory-building. Manufacturers don't want to take a chance on a novel product when another manufacturer can just come along, see how they did it, and do it for a quarter of the investment. This consideration obviously doesn't apply to software.
Patents make some degree of sense when there's a large enough investment in developing a product that the additional trouble of doing a patent search is a small part of the total expense, because the cost of design is dwarfed by the cost of manufacturing. When there's nothing but design, and the cost of patent searches threaten to be the main cost, then patents are utterly counterproductive.
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.
Laws affecting technology will always be bad until enough techies become lawyers.
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.