The Case Against Intellectual Property

dhilvert writes "David Levine and Michele Boldrin argue that current IP laws encourage an inefficient rent model and stifle the potential for innovation without intellectual monopoly. Levine teaches at UCLA and maintains an Economic and Game Theory page."

Comments

Thing thats bothered me about Software PAtents.

[trotski]

A question one must ask one's self is when does a research result or algorithim or something stop being a matematical or scientific process, that should be shared with everyone and when does it become intelectual property?

I mean, the 'breast cancer gene' has been patented, the harvard mouse too; not to mention all of the computer algorithims that are patented. Whatever happened to the notion that mathematics and science should be shared with everyone? The scientific community has functioned on the 'open source' model for hundreds of years, but it seems that thanks to the concept of 'intelectual property' this is all changeing.

Really, I mean some of these patent claims are analogous to Newton/Leibnits attempting to patent calculus or Feynmann trying to patent his discoveries in quantum electrodynamics.The point is when does intelectual property become a rediculous concept, or is it a rediculous concept from the very begining?

Re:Thing thats bothered me about Software PAtents.

[The Tyro]

I remember learning about James Watt... I certainly never learned about the patent angle, and his subsequent crushing of his competitors. An interesting hypothesis, that his patent and "rent-seeking behavior" delayed the industrial revolution by 30+ years.

I don't know when the IP-seeking behavior began in academia (I haven't been in it long enough to pontificate about the "old days). Perhaps it has always been there, and people were simply much more discrete about their patent filings.

Some of the patent drive may be related to the "publish-or-perish" mentality that exists at many larger universities. Aside from generating prestige and name-recognition, having a nice fat generating-income-for-the-university patent out there could do wonders for your chances of being granted tenure. Then again, it might also be a transparent attempt to financially rest on one's laurels, as it were.

Re:Thing thats bothered me about Software PAtents.

[bm_luethke]

"The point is when does intelectual property become a rediculous concept, or is it a rediculous concept from the very begining?"

That is a really difficult question. At what point does an algorithm become a mathematical equation. At what point does patenting it become a detriment to society.

To use medical stuff as a starting point the theory (and it is well played out in reality) is that the development cost is huge, manufacturing cost is tiny - same is true in CS. In order for them to recoupe costs (and therefore make them want to do the research) they are given a period of unilateral controll of sales. In the end it drives progress, for a few years only a select few get the rewards, in the long run the poorest are extremely elevated.

Software, unfortunatly, does not have the much harder line that a pill does (not really a physical product from quicksort). Is a windowing system patentable? is Quicksort?

Ultimatly the question is "does this help advance society". We, in many cases, are quite capable of answering this question. That question is supposed to be the job of the courts or the patent office. Unfortunatly they want an expert system type of decision making. A simple yes/no based on a simple given input written in a few pages of documentation. Patenting online sales in our current date is idiotic, but it passes thier simple "yes/no algorithm". Patenting a new extremely low latency/high throughput network interconnect is patentable (and really should be).

The next question is length of patents. In our industry a 5 year patent is really "in the past" let alone our current patent system. If you can't make a profit in 5 years in CS a ten year patent will not make you a profit, nor will a longer one. On the other hand it seriously dampens societies progress.

Patents are supposed to be, and should be, a balance between the need of society to benefit from advances in tech, and the people who invented the tech (or corperation) need to profit from the tech. When one is given great priority over the other the system gets screwed. It generally takes a person, capable of rational thought, to find that line, not a simple "yes/no" solution. Plus they need to realise the line is not necessarily in the same place each time (and some may disagree), that is why there is such a thing as "comprimise" (which is where neither side is happy, and neither side is greatly unhappy :) ).

Re:Thing thats bothered me about Software PAtents.

[Billly Gates]

" Trouble is you have these people coming up with all sorts of crazy ideas, like they invented the internet, then start pestering people for a fee."

This is what I meant by patening a means to access. Patening the internet or plumbing is an example of this. This brings in shitloads of money and this is why there is a contest in corporate America to patent something first before your competitors do so. A structure or algorithm should not be patented because they are used to access data or be used in a method to access the data.

This kind of patenting should be illegal wether its prior art or not. That in return would kill software patents as well as drug companies patenting genes.

You think patenting software is evil, then you know nothing of the horrors of the drug and bio-engineering market which is price gouging. IT makes Enron look ethical.

Software is scary because its not real but virtual. No one can make a compatible system if something is closed. Any physical object can be examined if its patented but not software unless its opened. OLE and DCOM is what is keeping Microsoft a monopoly. Because their products are virtual no one but Microsoft knows the inept details about them. Everyone else only knows how to use them and not build a competitor.

Re:Thing thats bothered me about Software PAtents.

[anubi]

Yes, I am seeing this.

And it scares the kerpookie out of me.

No matter how you design or code anything, you are sure to step on something someone has documented. I mostly do analog design.. now there are several circuit topologies for switching power supply design.. but are any of them safe to use outside of an academic lab? Or as mentioned, can one even use a quicksort algorithm without the risk of the letter in the mail? What if I use a m-way search tree in a custom mini-database which keeps track of some activities my robots are doing... can I expect somewhere someone is going to see I am using an m-way tree and hold my company ransom for it?

I can only imagine what it is like in the biochemical industry. I have seen my share of organic synthesis books.. and how similar organic molecules are. You can darned interpret anything you want if you get Congress to back your patent. Its like coming to the building industry because they used copper wire, copper pipe, bricks, nails, whatever in the construction of the building, and you have your lawyers hold them hostage for it.

Scary indeed...

But then my great hope is the Chinese. Hopefully they will look at us and learn. They will be able to innovate and construct and hopefully use their resources for production instead of litigation. It won't bode well over here in the States, but then Congress may have another thing to consider, how do you control the masses of people once they have lost their homes and no longer have money or jobs to pay rent. I do not like to be a fat man in the presence of hordes of hungry wolves.

Re:Thing thats bothered me about Software PAtents.

[Znork]

Actually, like all laws in a democracy, patents are supposed to be solely for the benefit of society. Laws are only made to benefit individuals and corporations as far as the end result of those laws is a benefit for society (or, rather, the voters).

In the case of patents there is a benefit if allowing patents has a result of inventions being available to society faster and more ubiquitously than they would otherwise be. That's a good idea for things that take a long time to develop and are unlikely to be independently developed by many different inventors. However, when the patent office allows 'trivial' patents, the result instead is that something that would have been freely and ubiquitously available for everyone, due to the ease of which it can be invented as need arises, is instead that society as a whole and other independent inventors are deprived of the use of that invention for a certain time.

What I'd like to see in the patent system would be a kind of brainstorming. When a patent is applied for, the problem the patent is intended to solve has to be posed (in engineering terms). A group of 5-10 engineers who are well versed in the field of the patent gets a day each (or in a group) to figure out possible solutions to the problem. If anyone comes up with a solution close to the patent the invention is declared trivial and unpatentable, and the solution and any other ideas the engineers have are entered in a database as prior unpatentable art, against which any further patent applications are compared for triviality.

Such a solution would probably be rather personell intensive in the beginning, but as the database evolves and more one-click shopping solutions get dumped on application there would probably be a sharp drop in frivolous patent applications and the system could go back to what it was supposed to be in the first place.

It's even worse now...

[occam]

Now, the wolves are guarding the hen house. In the early 90's, when Bruce Lehmann hosted the USPTO's sham hearings on whether to institutionalize s/w patents, his panel was comprised entirely of lawyers.

IOW, lawyers chose to instititionalize s/w patents in spite of strong protests from individuals throughout the software industry.

From that point on, it has been accepted that lawyers have the right to reap profits and taxes off of so-called innovation in software. It's a huge inefficiency, impossible to enforce, and impossible for anyone to prove virtually any software is unencumbered by patent conflicts. It's ridiculous.

The USPTO loves it though. They just increased their staff to handle their backlog which will forever increase since software patents are prolific and easily twisted into patent submissions.

Better yet, lawyers are having a heyday. The more lawsuits, the better. They get wealthy while the software industry grinds to a halt. It's obscene and a severe conflict of interest that they should have instituted s/w patents over all reason from the s/w industry itself.

I'm not even sure it's legal. I wonder what authority the USPTO head, Bruce Lehmann, really had. Was he appointed, and by whom? He certainly wasn't a member of Congress where laws should be created.

S/w patents should be abolished.

Re:It's even worse now...

[hype7]

Better yet, lawyers are having a heyday. The more lawsuits, the better.

But isn't this the US all over? I know you must be sick and tired of hearing being the most litigatious society etc - but don't think it's just limited to IP.

You want to talk about wolves guarding the henhouse? How many politicians used to be lawyers?

-- james

IP is Efficient

[Anonymous Coward]

Protecting businesses with regulation returns the least effort with the most campaign contributions. Politicians are great advocates of the 'for rent' model.

Here we go again...

[marko123]

Disclaimer: I work at an IP firm as a programmer, but not as a professional in the IP field.

Before people post "Burn down the IP laws!", make sure you have a valid alternative that comes some way toward protecting the rights of creative people.

As a model for handling commercial rights, which not too many creative people seem to mind having, intellectual property laws are not a perfect construction. Especially now we are trying to stretch paper rights around a digital wordl. But to the distant cousins of anarchists would like to see the whole system trashed (because destroying things feels good):

Go and read Animal Farm and construct a good alternative before you go starting a revolution.

Cheers, and good luck :)

Lawyer Fodder

[anubi]

After reading the article on Watt and his steam engine, I am even more convinced that most of this patenting process is mostly contrived to feed lawyers.

Does this really protect the individual who actually *invented* something or protect the ones who say they have the rights to it and have the resources to protect it.

The post before mine recognizing Newton/Leibnitz and the possiblilty of "patenting" calculus drives the point home.

This seems to me just to be another excuse not to work. My whole country seems to be doing this. It seems everyone is out not to produce anything per se, but to tie up anybody trying to do anything and exact a fee. Somehow this system passes as "free enterprise".

Now, if the patent protection lasted for seven years or so, I would consider it much more appropriate. That way one could profit during the market window, but not tie the works up in perpetuity.

It's not just IP

[Boss, Pointy Haired]

The United States has developed a litigation culture in many aspects of everyday life.

Marconi vs Tesla

[NigelJohnstone]

Read this:

PBS, Who invented Radio?

Its about how Tesla filed for patent on the radio in 1897, Marconi applied for his patent in 1900.

Marconi's patents were thrown out at first. Marconi became rich and powerful, then Tesla's patents were thrown out in place of Marconi's.

So you end up with a market in which the patent owner isn't the inventor and the whole purpose of patents - to reward the inventor, is turned on its head.

You can see the same pattern happening in software patents and the constant requests on Slashdot for prior art.

Adam Smith and *Intellectual monopoly*

[NZheretic]

last posted back in October, but IMO still of relevance to the topic...

From The Relevance of Adam Smith by Robert L. Hetzel.
With added commentary by yours truly...

MONOPOLY AND GOVERNMENT SUBSIDIES: The principal theme set forth in The Wealth of Nations is that a country most effectively promotes its own wealth by providing a framework of laws that leaves individuals free to pursue the interest they have in their own economic betterment. This self-interest motivates individuals? propensity to truck, barter, and exchange one thing for another and thereby leads them to meet the needs of others through voluntary cooperation in the market place:

...man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favour, and shew them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind, proposes to do this. Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of. It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. (p. 14)

Everyone realises and acknowledges that Microsoft is a business, there to make a profit to share with it's marjor stakeholders, from it's shareholders to it's employees. However ...

Smith also argues that the harmony between private goals and larger socially desirable goals promoted by voluntary cooperation between individuals in the market place is interfered with by monopoly and government subsidies. In contrast to competition, monopoly and government subsidies cause individuals to devote either too few or too many resources to particular markets:

....the private interests and passions of individuals naturally dispose them to turn their stock towards the employments which in ordinary cases are most advantageous to the society. But if from this natural preference they should turn too much of it towards those employments, the fall of profit in them and the rise of it in all others immediately dispose them to alter this faulty distribution. Without any intervention of law, therefore, the private interests and passions of men naturally lead to divide and distribute the stock of every society, among all the different employments carried on in it, as nearly as possible in the proportion which is most agreeable to the interest of the whole society.

All the different regulations of the mercantile system, necessarily derange more or less this natural and most advantageous distribution of stock. (pp. 594-5)
Every derangement of the natural distribution of stock is necessarily hurtful to the society in which it takes place; whether it be by repelling from a particular trade the stock which would otherwise go to it, or by attracting towards a particular trade that which would not otherwise come to it. (p. 597)

.... sometimes, because of the overiding profit motive, the end consumer can be put at a disadvantage, and the natural model can become unbalanced. This often happens in tha case of several types of monopoly...

Smith describes the actions of monopolists as follows:

The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate. (p. 61)

The natural price is the lowest which the sellers can commonly afford to take, and at the same time continue their business. (p. 61) Today we would use the word competitive for natural. The effectual demand is the demand of those who are willing to pay the natural price of the commodity. (p. 56) Monopoly, as well as a governmentally subsidized activity, contrasts with a competitive market where a commodity is...sold precisely for what it is worth, or for what it really costs the person who brings it to market. (p. 55)
The Wealth of Nations contains three general kinds of criticism of monopolies. The first is that the higher prices in a monopolized market reduce the welfare of consumers:

If...capital is divided between two different grocers, their competition will tend to make both of them sell cheaper, than if it were in the hands of one only; and if it were divided among twenty, their competition would be just so much the greater, and the chance of their combining together, in order to raise the price, just so much the less. Their competition might perhaps ruin some of themselves; but to take care of this is the business of the parties concerned, and it may safely be trusted to their discretion. It can never hurt either the consumer, or the producer; on the contrary, it must tend to make the retailers both sell cheaper and buy dearer, than if the whole trade was monopolized by one or two persons. (pp. 342-3)
In every country it always is and must be the interest of the great body of the people to buy whatever they want of those who sell it cheapest. The proposition is so very manifest, that it seems ridiculous to take any pains to prove it; nor could it ever have been called in question, had not the interest sophistry of merchants and manufacturers confounded the common sense of mankind. Their interest is, in this respect, directly opposite to that of the great body of the people. As it is the interest of the freemen of a corporation to hinder the rest of the inhabitants from employing any workmen but themselves, so it is the interest of the merchants and manufacturers of every country to secure to themselves the monopoly of the home market. (p. 461)

.... like deals made between vendors to set prices, which RAND "reasonable" licensing systems effectively does.

The second criticism of monopoly is that it engenders inefficient management:

Monopoly...is a great enemy to good management, which can never be universally established but in consequence of that free and universal competition which forces everybody to have recourse to it for the sake of self-defence. (p. 147)

For example, Microsoft's Internet Explorer containscurrently 20 unpatched vulnerabilities , a disproportionately high number in comparison to all the other browers on the market today. Also, because of a general disregard for security in the past, many of those same vulnerabilities are exploitable though other Microsoft applications.

The third criticism of monopoly is that it is inequitable because it increases arbitrarily the inequality in individuals? incomes:

...The policy of Europe occasions a very important inequality in the whole of the advantages and disadvantages of the different employments of labour and stock, by restraining the competition in some employments to a smaller number than might otherwise be disposed to enter into them. (pp. 118-19)

And there is many a CIO discovering that the new Microsoft enterprise licensing agreement is far more expensive than before.

Monopoly has always been a contentious issue in debates on public policy in the United States. It is interesting to examine the way in which the ideas of Smith appear in current debates over monopoly. In general, proponents of government intervention in the market place argue that monopoly is endemic in capitalism and that its elimination requires significant intervention by the government in the market place. An opposing group argues that free markets effectively restrain monopoly power and that it is in fact government intervention in the market place that is chiefly responsible for monopoly. The first group assumes that large size, fewness of firms, and operation over an extensive geographic area automatically imply monopoly power and thus supports its position by citing the existence of industries dominated by a few large firms and the existence of multinational corporations. The opposing group supports its position by trying to show that where monopoly power exists it is made possible by particular governmental actions, e.g., in the United States by marketing orders that fix the price of milk above what it would be otherwise, or FCC regulations restricting the growth of cable TV, thereby preventing competition with the established networks.

The view of the world suggested in The Wealth of Nations is that monopoly power cannot persist without the assistance of government. The specific examples of monopoly that Adam Smith attacked required the police power of the state for their maintenance. These monopolies were of three kinds. One kind of monopoly depended upon the mercantilistic system of laws which England used to monopolize trade with its colonies: Monopoly of one kind or another, indeed, seems to be the sole engine of the mercantile system. (p. 595) Another kind arose from the monopoly power granted guilds (referred to by Smith as corporations), which allowed them exclusive rights to produce a given commodity:

The exclusive privilege of an incorporated trade necessarily restrains the competition, in the town where it is established, to those who are free of the trade. To have served an apprenticeship in the town, under a master properly qualified, is commonly the necessary requisite for obtaining this freedom. The bye-laws of the corporation regulate sometimes the number of apprentices which any master is allowed to have, and almost always the number of years which each apprentice is obliged to serve. The intention of both regulations is to restrain the competition to a much smaller number than might otherwise be disposed to enter into the trade. The limitation of the number of apprentices restrains it directly. A long term of apprenticeship restrains it more indirectly, but as effectually, by increasing the expence of education. (p. 119)
The government of towns corporate was altogether in the hands of traders and artificers; and it was the manifest interest of every particular class of them, to prevent the market from being overstocked, as they commonly express it, with their own particular species of industry; which is in reality to keep it always understocked. (p. 124)

A final kind of monopoly depended upon tariffs and quotas that prevented foreign producers from competing with domestic producers:

The superiority which the industry of the towns has every-where in Europe over that of the country, is not altogether owing to corporations and corporation laws. It is supported by many other regulations. The high duties upon foreign manufactures and upon all goods imported by alien merchants, all tend to the same purpose. Corporation laws enable the inhabitants of towns to raise their prices, without fearing to be under-sold by the free competition of their own countrymen. Those other regulations secure them equally against that of foreigners. (p. 127)

Competitive markets restrain monopoly because the above-average profits associated with the exercise of monopoly power attract new producers who increase output and thereby lower prices:

When by an increase in the effectual demand, the market price of some particular commodity happens to rise a good deal above the natural price, those who employ their stocks in supplying that market are generally careful to conceal this change. If it was commonly known, their great profit would tempt so many new rivals to employ their stocks in the same way, that, the effectual demand being fully supplied, the market price would soon be reduced to the natural price.... Secrets of this kind, however, it must be acknowledged, can seldom be long kept; and the extraordinary profit can last very little longer than they are kept. (p. 60)

The next section is very IMPORTANT.

Monopolists can preserve their favorable position only if the government prevents potential competitors from entering the monopolized activity:

The exclusive privileges of corporations, statutes of apprenticeship, and all those laws which restrain, in particular employments, the competition to a smaller number than might otherwise go into them, have the same tendency...They...may frequently, for ages together, and in whole classes of employments, keep up the market price of particular commodities above the natural price, and maintain both the wages of the labour and the profits of the stock employed about them somewhat above their natural rate.

Such enhancements of the market price may last as long as the regulations of police which give occasion to them. (pp. 61-2)

In fact, the term "intellectual property" is a misnomer, a more correct term would be intellectual monopoly. Patents, Copyrights and even Trademarks are a government granted monopoly, they do not occur naturally. That does not mean that they are a bad thing per-say, but their use should be dictated by the benefit to socitety in general, with approprate limits so their use cannot be abused.
These statutes give the power that the ol' Mercantile laws gave to those monopolies. There is no true effective choice in the market. Compainies like Microsoft are sustaining it's dominate position in the markerplace by using a state-constructed and granted monopoly, which gives Microsoft the monopoly over it's protocols , effectively just as restrictive as the East India Trading Company trading zone monopoly of the Orient.

Free markets make the formation of monopoly difficult because monopoly requires the adherence of all actual and potential sellers in a market. Self-interest makes achievement of such adherence difficult because each seller has an incentive to undercut the monopoly price in order to increase his share of the market. Monopoly power is increased or made possible if enforced by the government. In the following passage Smith refers to the guilds, or corporations, of his day:

An incorporation...makes the act of the majority binding upon the whole. In a free trade an effectual combination cannot be established but by the unanimous consent of every single trader, and it cannot last longer than every single trader continues of the same mind. The majority of a corporation can enact a bye-law with proper penalties, which will limit the competition more effectually and more durably than any voluntary combination whatever. (p. 129)

Smith?s ideas appear in current public debate over monopoly. Advocates of deregulating the transportation and communications industries by eliminating or reducing the power of Federal regulatory agencies argue that these agencies promote monopoly by limiting the entry of new firms and by fixing prices for all producers. Government regulations enforced upon all firms in an industry have the effect of allowing producers to eliminate competition and to raise prices. At the same time, lack of competition reduces incentives for efficient production.

It could use some fact checking.

[jkheit]

It's tough to take anything they say too seriously when they seem not to have bothered to do the most BASIC research and/or fact checking. They cite incorrect durations for both patents and copyrights. A rather impressive feat.

Design patents have a term of 14 years. Utility patents have a term of 20 years from filing. They had it reverse. Also, the current term for copyright is the life of the author plus 70 years, not 50 years--this was changed several years ago (is the piece that old?)--and I believe one of the reasons Disney and others had an excuse to request extensions of copyright law (yea right to "harmonize" the old and new law/copyright term).

That's in the first 4 pages of chapter 1. Perhaps they are typos and not indications of the intellectual rigor that went into the book.

Proactive IP regulation & Patent Busting

[kscguru]

The problem is that IP "regulation" is reactive instead of proactive. Two large companies want to merge, they have to get regulator approval beforehand. But if I want to own a piece of IP, I just claim it (copyright) or come up with an obscure description and pay a small fee (patent); I basically own it until someone proves I don't - the onus is on YOU to challenge MY ownership. And I can threaten all sorts of lawsuits until you succeed in that challenge. If I hold a patent that's "obvious", guess what - you've got to sue to break my monopoly.

The solution I'd like to see, instead, would be the government taking a proactive stand. Instead of granting patents and waiting for the mess to sort itself out, I want the government to go out and bust patents. Presidents like to portray themselves as trustbusters; well, "patent cartels" are one large trust that's never been busted. If some technology covered by a patent becomes truly umbiquitous - that is, so widely used that the inventor has ALREADY recouped his R&D investment - I'd like to see the government force the patent into the public domain. Example: CD-ROMs... Philips hold the patent, and has been very generous with it. But the technology protected by that patent is SO widespread that any abuse of the CD-ROM patent would ruin the technology sector. Think of how much some companies (or the RIAA, to supress non-DRM formats) would pay to control that patent - the value is inconceivable.

At this point, CD-ROM technology ceases to be a useful patent and starts to become something that the general public has a vital interest in... and here's the point where the government should "seize" the patent and turn the IP over to the public BEFORE the patent expires of its own accord. A widely used piece of IP (or any of the "obvious" patents we regularly complain about here on Slashdot) has passed the point where the inventors NEED a monopoly to protect their idea and has reached the point where the only purpose of that patent is profit at the expense of the public.

Monopolies are useful, but powerful monopolies are not; patents are useful, but exploitable patents are not. The government has an active role in regulating all other monopolies; it needs to take an active role in regulating IP monopolies as well.

The bad thing with IP patents

[rolfwind]

is where do we draw the line?

Amazon's one click nonsense, how was this even patentable? In essense that idea was click a virtual button, and it does something, does that sound innovative? No step in that process was innovative, Amazon, like a million other companies keeps a cookie in your browser, and you're shipping/billing info in their file/database, what was new with that? And yet here we are, patenting these simpleton ideas a retarded chimpanzee could have come up with.

Software techniques should not be patentable on the simple basis that the staff on the USPTO simply seem incompetent, due to no fault of their own, to designate what truly deserves a patent and what is merely an old idea in a new dress. The system is set up by lawyers for lawyers, in the end tilted toward corporations with cash and IP agreements with each other, so the small software development houses can't get in.

Really, Software should not be patentable, at the most, copyrightable in certain aspects, the name, logos, and protected in regards that nobody should be able to legally take the binary and resell it as their own.

But that is about it.... otherwise all you are asking in the future with this so-called 'ip property' is a constant headache with unscrupulous people who are smart enough to patent an idea that has been around for ages and ask enough so you pay them, but don't ask so much that you fight them in court.

Obvious patents = theft

[ctellefsen]

A patent is not a right one person gets when he patents something, it is a right everyone else loses. If Amazon had not patented the obvious one-click order, everyone could do it. I think that taking away the right of every person (save one) in the entire world to do some action is a very serious thing to do.

Therefore, patent granting should be very restrictive - not like today, when you can patent obvious bits of code, obvious business processes, DNA sequences, the wheel, swings, whatever.

When the patent is obvious, patenting is theft - taking from all and giving to one.

The summary for lazy people

[Erpo]

Chapter 1: The idea of "intellectual property" is broken down into two components.

1. Right of sale. If someone has an idea, that person can sell a copy of it to someone else. If someone makes a copy of it and the originator hasn't agreed to sell it, legal action can be taken. Example: An aspiring screenwriter sends a copy of his latest script to a famous director. The director likes it so much that he makes a movie out of it -- without having first acquired the right to use the script's contents. The script's author could sue the director in this case.

2. Intellectual monopoly. The originator of information can decide what others can do with that information once sold. Shrinkwrap software licenses/EULAs are a great example of this.

They argue that right of sale is a good thing because it gives creative people an incentive to produce and some amount of legal protection. They also argue that while intellectual monopoly gives them even more incentive to produce, controlling what people do with information after they have bought it (including making copies for other people) cannot be done without terrible social consequences:

Take the case of slavery. Why should people not be allowed to sign private contracts binding them to slavery? In fact, economists have consistently argued against slavery -- during the 19th century David Ricardo and John Stuart Mill engaged in a heater public debate with literary luminaries such as Charles Dickens -- with the enconomists opposing slavery, and the literary giants arguing in favor. The fact is that our labor cannot be separated from ourselves. For someone else to own our labor requires them to engage in intrusive and costly supervision. Such transaction costs are socially damaging as they imply violation of privacy and essential civil liberties. Hence they are commonly rejected on economic, not just moral, grounds. Moreover, there is no economic reason to allow slavery. With well functioning markets, renting labor is a good substitute for owning it. And so we allow the rental of labor, but not the permanant sale.
For intellectual property we are proposing the reverse: allowing the permanent sale, but not rental. For with intellectual property, posession belongs to the buyer and not to the seller. If you sell me an idea, I now have that idea embodied either in me or an object I own. For you to control the idea requires intrusive and costly supervision. Similarly if you sell me a book, a CD or a computer file. In each case, I have physical control of the item, and you can control its use only through intrusive measures.

I haven't read all of chapter 2 yet, but I'm trying to compromise between providing a decent summary of what's obviously a very insightful text in the hope that people will read it, and not getting buried on the second page where nobody will see the post.

From what I've read so far, this is really good stuff.

"the industry would be at a complete standstill"

[NZheretic]

PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn't done any patent exchanges tha I am aware of. Amazingly we havn't found a way to use our licensing position to avoid having our own customers cause patent problems for us.

-- Bill Gates, Challenges and Strategy Memo May 16, 1991

You might want to look up the Seldon patents too

[kfg]

Seldon was a lawyer who patented the automobile. He didn't build one, he never even so much as understood them, but he understood that sooner or later someone was going invent the thing, and if *he* already held the patent the actual inventor would either owe him a mint or simply be forced out of business.

So he filed a patent on the *idea,* and got it.

The fight between him and Henry Ford is one of the great sagas of intellectual property dispute in any nation. The patent was eventually broken, but not until after many, many years of courtroom fighting had passed, and millions of dollars such fighting takes to wage had passed from the hands of innovators into the hands of lawyers.

The Wright Bros. invented flight. Then they made sure that America became the absolute *last* in aero technology through patent fights. By the time we entered WWI, hardly more than a decade after that first flight at Kitty Hawk, America had to license aero technology from Europe in order to be competitive in the military aeronautics.

The Europeans either outright ignored the Wright Bros. patents, or found work arounds they could claim didn't violate them.

KFG

Or that both parties have too many lawyers

[ShatteredDream]

Many of our founders felt that lawyers shouldn't be allowed to serve in Congress or as the President because it'd be a conflict of interest. Afterall, if a lawyer can vote on the law, they can essentially vote themselves into a lucrative occupation at everyone else's expense.

Facts and figures against copyright...

[Paul Fernhout]

This AEI-Brookings Joint Center for Regulatory Studies article by Mark S. Nadel is also relevant to showing the case against intellectual property.

http://www.aei.brookings.org/publications/abstract .php?pid=302

From the abstract: This article questions the economic justification for copyright laws prohibition against unauthorized copying. Building on the thesis of Stephen Breyers 1970 Harvard Law Review article, The Uneasy Case for Copyright, it contends that not only may copyright laws prohibition against unauthorized copying (17 U.S.C. 106) not be necessary to stimulate an optimal level of new creations, but that 106 appears to have a net negative effect on such output! It observes that the higher revenues that 106 generates for popular creations are, in the lottery-like entertainment markets, generally used for promotional efforts (rent seeking), and that such marketing crowds out many borderline creations. The article also identifies and explains how new technologies and social norms provide many viable business models for financing new creations relying on only a heavily abridged version of 106. Hence, the article questions whether the current 106 could survive the intermediate scrutiny standards of the First Amendment, given the lack of evidence that the benefits of 106 exceed its costs.

This is a fantastic paper. It is full of references and numbers a lot of hard work and scholarship obviously went into it.

For support for eliminating copyrights or greatly reducing their terms, see Richard Stallman, especially here:
http://www.memes.net/index.php3?request=displaypag e&NodeID=650

and also Brian Martin's essay "Against intellectual property" (part of a large book -- _Information Liberation_)
http://www.uow.edu.au/arts/sts/bmartin/pubs/98il/i l03.html

You can also see lots of other ongoing discussion here on Lawrence Lessig's blog here http://cyberlaw.stanford.edu/lessig/blog/ and in his two books.

Here is a paper by an intellectual property lawyer against the current system: http://emoglen.law.columbia.edu/publications/anarc hism.html

Here are some of my own comments on the situation: http://cyberlaw.stanford.edu/mt/mt-comments.cgi?en try_id=898 http://cyberlaw.stanford.edu/mt/mt-comments.cgi?en try_id=889