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;"

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....

[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).

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.