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

The concept of intellectual property has got to go

[Bonker]

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.

"Original" Copyright law and Patent law

[swhalen]

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;"

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.

Re:First Thing We Do

[ari{Dal}]

Having studied law in a previous incarnation, I think we should look at the ramifications of such actions before beginning the slaughter.

1st, we'd decimate the government. As we all know. most of em have at least some kind of legal training.

2nd, we'd lose the entire justice system. Everyone would be gone except for the cops. And who'd keep them in line?

3rd, we'd certainly end up living in a rampant, copyright infringing society where p2p ruled all.

Having said all this, I say we start at the student level and work our way up. That way, we get some practice in on the lower echelons before moving up to the big time. Now where'd I store my shotgun shells...?

There ARE other ways

[FreeUser]

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.

Here's mine...

[Amazing Quantum Man]

Copyright

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

Re:Here's mine...

[interstellar_donkey]

All copyrights must be held by a private individual. No corporate entity may hold a copyright.

How would that work? Large companies (like Microsoft) do, and should have a right to protect their work (although we should change the limits of that control).

A a large software package is the result of hundreds, if not thousands of coders. If a company cannot own that copywrite, who gets control? The company president? What if he or she dies?

What if a rock band wants to protect their work? Does the band have to sit down and decide who gets to control the copywrite?

I like where you're going with this, I just don't see a single owner as being feasible when so much media today is the product of a collaboration of so many.

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

[caesar-auf-nihil]

In the chemical industry (where I work) here's how patents have gotten out of control and have become an inhibator to innovation, rather than a protector/promoter of innovation.

It starts with patent examiners not being experts in the art. Therefore, what is "obvious to those skilled in the art" who wrote the patent is not obvious to the patent examiner. Therefore, you see patents where claims are made that have no basis in scientific proof because the patent examiner can't find a previous claim which would invalidate the patent claim. The reason for this is that the science behind the bullshit claim does not exist, and therefore, cannot be discovered as prior art.

Here's another abuse of the system. Very often a company will produce a patent with no intention of actually practicing the technology. Instead, they do it to prevent their competitor, (who can make the chemical cheaper with their unique process), from making the chemical for profit. Instead, the non-patent holding company now has to pay a royalty fee to sell the chemical for its original use. So, the company without the patent instead never makes the material, no matter how good it is, because the proposed royalty fees are outrageously expensive.

The patent system is not just broken in the area of software, its also broken in the scientific field. This is why you see corporations trying to patent DNA sequences, natural compounds, basic research, and everything they can to prevent others from using it. I imagine that the practices I listed above are probably also used in the software industry, where a company will issue a patent just to prevent someone else from using a similar piece of code.

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

[jafac]

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.

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

[CaptainCarrot]

IANAL, so I'm arguing at a significant disadvantage here, but maybe I'll learn something.

The main problem as I see it is that the discipline of Software Engineering is still in its infancy. It doesn't even have the advantage that, say, Mechanical Engineering had at the beginning of the Industrial Revolution where all the basic building blocks (wheels, gears, pistons, cams, flywheels, etc.) had already been devised centuries before for the most part, and no one had to hesitate to make use of them for fear of violating someone else's IP rights. Software engineers are still, by and large, inventing the wheel. Or maybe we've advanced as far as the cam. The point is that all the basic tools of the trade, which in other disciplines were developed long before IP law was even remotely contemplated, are still in the process of assuming their standardized forms. It can only benefit "the progress of science and useful arts" to allow these tools to develop unimpeded.

But there's another aspect that's a problem that you pointed up in your post when you said, "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?" The task that the software is accomplishing ought not be patentable. Imagine if the inventor of the locomotive had been awarded a patent that covered any form of self-propelled conveyance. Had such a patent still been valid some 80 years later (and it wouldn't have been at the time, but bear with me -- we may be headed this way anyhow) then the inventor of the automobile would have had to license this patent to build the first car! Rather, it's the underlying method by which this task is performed (steam engine vs. internal combustion engine) that ought to be patentable, and as I understand it, traditionally has been in IP law.

I don't say even that without a qualm or two, since computational methods (algorithms) traditionally have been in the domain of the academy, and in many cases patenting of an algorithm is as absurd as patenting a mathematical theorem. That is to say, it's to an extent an implicit property of the formal system in which it exists. But one does have to draw the line somewhere, and truly clever and innovative algorithms ought to be rewarded with a temporary monopoly, IMO. (But if the same task can be accomplished with an algorithm that is not mathematically identical, that's another story.)

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

[Chris Colohan]

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.

Discovery vs Invention

[photon317]

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).

Re:Just read the Constitution, fer chrissakes.

[MoneyT]

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.

Tie IP protection to the tax code

[Otterley]

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.

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.