Champerty and Other Common Law We Could Use Today

pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"

Comments

Trial By Combat!

[Greyfox]

I shall ready the trebuchet!

Re:Trial By Combat!

[Ihmhi]

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

If things get bad enough that you would want to kill someone, as it stands now the attacker might miss a few times with his handgun and hit innocent bystanders. At least it would remove that risk to a degree.

Makes me wonder if any of the states with their silly old archaic laws still have a dueling law on the books.

Re:Trial By Combat!

[PopeRatzo]

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18

Typical secular left opinion.

Since fetuses and corporations are people, they should be allowed to duel, too.

Re:Trial By Combat!

[EatHam]

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

It'd make the legal profession far more interesting if professional arguers were replaced with professional duelers.

Re:Trial By Combat!

[plover]

I shall ready the trebuchet!

Then I shall fetch thee a lawyer, that thou may'st have ammunition.

Re:Trial By Combat!

[Anonymous Coward]

Since fetuses and corporations are people, they should be allowed to duel, too.

That's only fair, since they have to register with Selective Service. If they can die for their country, they can die for a maid's honor.

Re:Trial By Combat!

[Oddscurity]

I'm trying to wrap my head around what would then be an offshoot of that: gang dueling. At best it's an oxymoron, at worst it's an Erol Flynn movie.

Drive-by dueling, would that then be akin to jousting?

Re:Trial By Combat!

[bofkentucky]

Elected officials in Kentucky have to swear as part of their oath of office that they have never participated in a duel.

Re:Trial By Combat!

[rident]

Wasn't that an episode of Sliders?

Re:Trial By Combat!

[MozeeToby]

Didn't Accelerando have 'deuling' for corporations to settle disputes? Where the duel was a competition set up by the judge to determine which corporation was best for the economy. If I remember right the example in the book was which corp could set up the best trade agreement with the newly contacted aliens.

Re:Trial By Combat!

[dpilot]

Show me where to shoot a corporation to get a clean (maybe even messy) kill, and I'm with you.

If the Supreme Court declared corporations to be persons in the early 1900s, why has the death penalty never been handed down to one, in the time since? Are they really that much better "people" than flesh-and-blood "people", that much more moral? It's also interesting that in Asimov's original, "The Bicentennial Man" that the robot wasn't granted his "humanity" until he'd sufficiently improved his system that he was going to die.

The only 2 corporate "deaths" I can think of in recent history that were connected with crimes are Enron and the (name forgotten) auditing firm. While government disapproval lead to their deaths in the marketplace, neither was "dechartered", the truer equivalent of the death penalty.

Re:Trial By Combat!

[Aklyon]

I shall ready the trebuchet!

And I shall ready the Ballista!

Re:Trial By Combat!

[PopeRatzo]

Hey, I'm with you, dpilot. The judges on the Supreme Court who decided that corporations are "persons" did incalculable harm to US society.

Re:Trial By Combat!

[TENTH SHOW JAM]

I'd settle for Life imprisonment. Where all shares are taken from shareholders and the company has to pay dividends to the government treasury for 25 years. If the company reports a loss in that time they are bankrupted and dissolved.

Re:Trial By Combat!

[Ihmhi]

(Modern) firearms would just make things too risky and messy. Just hand 'em a couple of sabers and have 'em slice it up in an arena.

No, no, no.

[Jurily]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

What next? Stoning girls because they weren't virgins on their wedding?

Re:No, no, no.

[Calinous]

Those laws were applicable in the 1916.
      As for the reasoning behind those laws, remember that the judicial system is paid from the country's budget, not by the legal taxes - so, indirectly, you pay for every case that goes to the judge. And, because of those lots and lots of cases that drag for a long time, your own case might take months and months or years and years.

Re:No, no, no.

[BlackHawk-666]

I'm quite fond of stoned girls who aren't virgins.

Re:No, no, no.

[Capsaicin]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

No what got us into this mess in the first place was not applying tried and true law, but instead being stampeded into enacting new law because "oooooh it's the internet ... we need neeewwwww laws (that'll make a motza for the people I work for)." Take copyright and other so-called IP law back 25-50 years and we'd be in a much better position.

That being said, the issues surrounding maintainance and champerty (which makes working on a contingency fee basis impossible) are a little more complicated. In my jurisdiction (NSW.au) these were still torts until 1993 when the Maitainance, Champerty and Barratry Abolition Act 1993 (NSW), was passed. Until then it was difficult for ordinary people to defend their legal rights as the cost of litigation (the ultimate threat) would be prohibitive. So these torts acted in a highly anti-democratic fashion.

OTOH after the Act was passed the amount if litigation obviously increased. And it increased to the point where it was felt necessary to curtail the remedies available to individuals (via the Civil Liability Act 2002 (NSW)). So the abolition of these torts ultimately acted to reduce an individual's rights. Also it made lawyers unpopular as happens when a people becomes more litigious.

Difficult.

Re:No, no, no.

[Anonymous Coward]

I agree. What the article fails to mention is why these principles have fallen by the wayside.
1) Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state. As is clear even from the wording of the law, it wasn't designed to uphold justice, the nod at the end notwithstanding, but to keep things quiet, which was in the best interest of the king. Nowadays, in a state ruled by representatives of the citizenry for the citizenry, rather than by the king for the king, the principle of barratry has no place.
2) Maintenance (and thus champetry) makes it impossible for charities to for example support people who are in a protracted legal battle with an organisation with much deeper pockets. Again, we can see that this is a very useful law for the aristocracy but not for the common people.
Both these principles were from a time when the single purpose of the law was to enforce stability, and where it served justice, it only did so as a means to that end. Although vestiges of that past are still visible in our laws today, the current attitude is that the law should provide justice and protection to the citizenry. If there are laws that don't serve this end* they should be changed or abolished.
*Previously on Slashdot:
UK Censorship: Demonic Consequences
In the UK, a Few Tweets Restore Freedom of Speech
A New Libel Defense In Canada; For Blogs Too
In Britain, Better Not Call It Bogus Science
And you can help make the world a better place: Libel Reform Campaign

Re:No, no, no.

[Jurily]

the cost of litigation (the ultimate threat)

And there we have the main problem with the legal system today.

Re:No, no, no.

[cthugha]

Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.

I'm not sure of the precise historical reasons for the abolition of these torts in New South Wales, but I note that they also create difficulties for types of litigation funding that are considered legitimate, e.g. funding by public interest groups or unions. IIRC, union lobbying was behind much of the Victorian Wrongs Act, which (in its original form) abolished maintenance and champerty in that State as well as making a whole load of other changes in relation to civil liability for negligence and personal injury.

Re:No, no, no.

[GospelHead821]

I'm curious. Does a "not to exceed" clause violate the law? Say a client and lawyer agree on a fee of $1000 but the jury awards the client just $500. Is it acceptable for the agreement to be "$1000, but not to exceed the awarded damages?"

Re:No, no, no.

[One Monkey]

Both these principles were from a time when the single purpose of the law was to enforce stability... the current attitude is that the law should provide justice and protection to the citizenry

Someone needs to renew their cynicsm prescription. I've never regarded the former state of law to have expired nor the latter attitude to have stretched as far as the actual legal system.

Re:No, no, no.

[hey!]

You voice my objections to the article better than I could.

That said, what we are talking about is a phenomenon where the abolition of one class of legal abuse tends to lead to another, new class of abuse. As long as there is law and there are people with money interested in subverting the law for their own purposes, you'll have new abuses dreamed up by creative and unscrupulous lawyers.

So this is not a matter of getting the law right, but keeping up with the development of novel abuses.

We needn't resurrect the doctrine of champetry wholesale as it existed a century ago to address the most flagrantly abusive forms of maintenance. The problem with champetry is that it assumes that because contingency fees create an incentive to maintain frivolous lawsuits, that any lawsuit undertaken by a lawyer with a contingency fee is necessarily frivolous. That's only true if we assume that substantive lawsuits are brought exclusively by gentleman of means.

The real problem is not the fee arrangements, but the use of law to obtain plaintiffs privileges beyond what the law grants them. It is the use of the law to undermine the rational basis of the law.

So the point the article makes is better than it appears. Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

Re:No, no, no.

[Tanktalus]

"My fees will be $10m, but not to exceed 40% of awarded damages." "But, but ... we're only suing for $1m?"

Something tells me lawyers would find a loophole on that before it was ever proposed.

Re:No, no, no.

[Mr. Slippery]

Nowadays, in a state ruled by representatives of the citizenry for the citizenry...

See, that's the problem. We don't have that. If we did, we wouldn't have the patent system that we do. What we have is a state ruled by representatives of big businesses for big businesses.

We need some sort of controls on barratry, not just to fight patent trolls but to stop SLAPPs.

Re:No, no, no.

[Archangel Michael]

This is exactly why lawyers should be arbitrarily appointed by the judge as if drawn from a hat.

Scenario:

Big Company (BC), wants to sue Joe Blow (JB), for some reason, the BC has to appear before a judge and state the nature of the suit. The judge pulls out of the hat three names of lawyers, of which the BC chooses the one they want.

At the same time, JB is in the courtroom and the judge pulls our three names from the pool.

The judge gives each person one month to prepare. The judge then requires each side to sumbit its case and then each side gets two weeks to prepare a rebuttal. When the rebuttals are prepared, the judge gets these, and sets a final court date for witnesses to appear and such.

The day of the trial comes, the judge assembles the cast, swears all witnesses in at once, and the trial begins.

The trial lasts as long as the Judge (jury) has unanswered questions, lawyers aren't allowed to pontificate anything, but only allowed to counsel their clients on the "law".

Loser pays set fee for use of all lawyers, plus court costs. Since the burden of evidence is upon the person making the suit, they have the added burden of paying the defending litigant the exact sum being asked for in the suit.

Part of every award goes towards a fund for the "poor", to cover the costs associated for people of limited means.

This is fair to everyone involved. If you have a weak case, you're less likely to sue. If you have a strong case, there is a huge incentive to settle out of court.

And the deep pockets of the rich will have limited effect on the case.

Civil trials take way too long, and there is incentives by lawyers to keep the system flooded with needless, useless and pointless lawsuits.

Re:No, no, no.

[Anonymous Cowpat]

Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state

Not if the citizen being repeatedly secrewed over is being screwed over a barrage of frivolous lawsuits which they can't afford to fend off (because even if you get costs back, they'll never really cover your true costs)

Re:No, no, no.

[bill_mcgonigle]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet.

Close, but the assumption that a sitting government can make laws that can keep pace with an economy (and by proxy technology) was rejected well over 800 years ago.

It never worked, it doesn't work, it never will work. Non-crazy people stop trying things that don't work.

Re:No, no, no.

[Ungrounded Lightning]

(Much as I hate to do anything that might appear to support patent trolls ...)

Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

Infringement of a patent while the patent holder is trying to arrange to put the invention into production is also a real injury, with real damages to real inventors / patent holders. Perhaps it's an even larger one than infringement when a patent holder has already gotten over the hump and into production - because it cuts off his opportunity to exploit his invention at all, hits him when he's weak and resource poor, and when he has a hard time demonstrating the damage because he doesn't have a track record of building a profitable product.

The difference between a real inventor trying to exploit an invention and a patent troll is solely a matter of intent: Does the plaintiff intend to actually exploit the invention or license it to others to do so? Or does he intend solely to wait until others re-invent and exploit the invention, then extort them? The latter is "rent-seeking behavior" and well recognized by economists as a bad thing. But the law doesn't currently distinguish the two cases and would have a hard time doing so if the legislatures and courts tried.

Re:No, no, no.

[Capsaicin]

Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.

Well since I started Law at Sydney, a few years after the passage of the 1993 Act, I never read any of the cases, so I'll defer to your greater learning on the matter. OK, so I checked out a leading English case Trendtex this morning, where Wilberforce LJ cites Halsbury's to the effect that "Champerty is a particular kind of maintenance, namely maintenance of an action in consideration of a promise to give the maintainer a share in the proceeds or subject matter of the action.," which accords well with what you wrote. ;)

That being said, the Act did usher a period of greater litigation down here, being I perhaps part of raft of "reforms" (if memory serves me correctly it was from that time that advertisment for legal services began to appear). Of course such reforms might not be the sole cause, as this was the time Deane's proximity doctrine had gone viral.

Re:No, no, no.

[Capsaicin]

Civil trials take way too long, and there is incentives by lawyers to keep the system flooded with needless, useless and pointless lawsuits.

In my jurisdiction practitioners are prohibited from acting in cases in which we cannot demonstrate a "reasonable prospect of success," on pain of unintentionally working pro bono or worse.

Re:No, no, no.

[cthugha]

No it doesn't, because it's not the basis on which the fees are calculated. In fact, the local Law Society where I am enacted a professional rule a while ago to the effect that fees under no win, no fee arrangements couldn't exceed half of what the client ended up getting. This followed a rather embarrassing case where a firm charged more than the amount of the payout made to the client, claiming that since money had been paid out by the defendant the client had achieved a "win".

Re:No, no, no.

[cthugha]

I tend to agree that trends in law tend to arise as a result of the interplay of many factors, both legal and non-legal in character. IIRC juries were still in charge of questions as to, e.g., standard of care back then, meaning that prevailing social attitudes about such things as risk vs cost had their part to play.

Regular modern restrictions would be fine.

[Senes]

All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income. Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.

Re:Regular modern restrictions would be fine.

[u38cg]

What about the capital they invested? Or is it OK just to take that off them?

Re:Regular modern restrictions would be fine.

[bencoder]

that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".

Re:Regular modern restrictions would be fine.

[julesh]

Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.

So if I buy a house, I'm not allowed to rent it out? Or sue somebody who built their own house on my land, thus attempting to live off what I paid for fair-and-square?

Re:Regular modern restrictions would be fine.

[ArsenneLupin]

that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".

Couldn't the same reasoning be used by patent trolls. After all, they purchased their patents with their "hard earned money", so they have contributed something to society too...

Re:Regular modern restrictions would be fine.

[bencoder]

I don't see patents as capital. They are restriction, essentially, having a patent is like "owning" a law restricting other people. The cost of gaining a patent is minimal and has no relation to the cost(or lack of cost) of producing the original item or idea.

Re:Regular modern restrictions would be fine.

[Mr. Slippery]

All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income.

Exactly.

Of course, we also need to apply that to absentee landlords and absentee business investors. That pretty much destroys capitalism as we know it. I'm okay with that.

Re:Regular modern restrictions would be fine.

[Mr. Slippery]

So if I buy a house, I'm not allowed to rent it out?

If you buy a house and do nothing but rent it out -- you do not maintain it or otherwise contribute, merely exploit the land ownership granted you by the state -- you are an absentee landlord, a low form of scum. Ownership of real estate should be based on occupancy and use.

The patent system exists for aiding innovation

[Anonymous Coward]

The patent system is for one thing only. To aid innovation.

If the patent system doesn't aid innovation it fails its own raison d'être.
If a part of the patent system doesn't aid innovation that part fails and should be removed.

Re:The patent system exists for aiding innovation

[houghi]

Logic overload. What will happen is that the raison d'être will change.

Re:The patent system exists for aiding innovation

[starbugs]

Software patents stifle innovation.
Yet they are still around.

Many of us hate software patents. (myself included).
They limit what we can do, so we have to find innovative ways to avoid them.
Meanwhile we are happy when some large companies get bitten by patents.

Besides litigation, how do software patents benefit their holders?

Re:The patent system exists for aiding innovation

[nedlohs]

That would require a constitutional amendment, which is a slightly higher bar than the average lawmaking or judicial action.

Re:The patent system exists for aiding innovation

[sgrover]

Playing devils adovcate here... Your argument contradicts itslef. "Software patents stifle innovation", followed shortly later by "so we have to find innovative ways to avoid them". Which is it? I agree with your sentiment that software patents do not work. But we need to be clear and concise in our arguments against it. Unless you are a lawyer, I guess.

Re:The patent system exists for aiding innovation

[syousef]

They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.

Innovative!? Quick, patent the technique!!!

Re:The patent system exists for aiding innovation

[delinear]

In this case the innovation involves a lot of waste effort circumventing overly restrictive legal practice when it could instead be innovation which benefits everyone directly.

Re:The patent system exists for aiding innovation

[edittard]

The resources you spend on unnecessary innovation - working round the patent - could be spent on useful innovation - creating something new or better.

Re:The patent system exists for aiding innovation

[dpilot]

You're living in the past. That's why both patents and copyrights were conceived in the Constitution.

I fear that has little to do with why patents and copyrights are around now - especially copyrights. I'll be curious to see how patent law is tweaked, so that patents can continue to be a barrier-to-entry, yet get rid of patent trolls.

Re:The patent system exists for aiding innovation

[TheLink]

It's like someone patenting a circular wheel, and everyone having to come up with other weird shaped wheels and special mechanisms (or roads) to make them still run kind of smoothly, and patenting their versions as well.

Lastly, if the rate of progress and innovation is supposed to be increasing, that means patent terms should be decreasing.

Same goes for copyrights - if marketing and distribution is supposedly better than the old days, copyright terms should be getting shorter instead of becoming much longer.

Re:The patent system exists for aiding innovation

[sorak]

Software patents stifle innovation.
Yet they are still around.

Many of us hate software patents. (myself included).
They limit what we can do, so we have to find innovative ways to avoid them.

That they are only a problem when abused. If company X develops some new way of sorting data that allows them to produce a better database, then they deserve an opportunity to profit from their work, just as an inventor deserves a chance to profit from an invention. The fact that company X's invention is not embedded within a specific piece of hardware doesn't change the fact that they have contributed something.

(And, unlike copyrights, software patents have a chance of dying before the product being patented becomes obsolete).

Besides litigation, how do software patents benefit their holders?

Besides paying for your hospital bills, how does health insurance benefit you? Litigation, or the threat of litigation, is the main benefit for patent holders. If somebody steals your idea, you have a legal recourse against them. That's the only good thing that comes from patent law, but it is sufficient.

Re:The patent system exists for aiding innovation

[ResidentSourcerer]

So, perhaps a modification of patent law so that you have to prove that the patent is in active use in order to maintain control of it. Say you have a year to show that you have either:

1. Have started production of a product using this patent
2. Are spending X% of your annual gross cashflow creating infra-structure to use this patent.
3. Have licensed this patent to someone else who has to demonstrate #1 or #2
4. Have sold this patent to someone else who has a year. (This extension happens only once -- it's one year from the first resale date.)

This would prevent a lot of speculation on patents.

Re:The patent system exists for aiding innovation

[badkarmadayaccount]

Then you have to have licensees within a set period of time of being issued the patent, and must grant free unlimited irrevocable patent rights to all
<xml>
<Tivotization-proof>
<copyleft>
<executable level differentiation>
<free open source licensed>
<software> distributors
</xml>
on request, on the condition that the patent license applies only to software released under the aforementioned licensing requirements, and a separate license is required for closed source distribution of the same software. In short only community non-commercial projects get to use these patents for free. If the project beats all the licensees, then apparently community efforts are most efficient for the implementation of these claims/algorithms, and it is in the interest of the free market that they are assisted.

Lets not pussyfoot around

[Anonymous Coward]

Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it. They will inevitably be removed. The only question is: How long will we wait?

Re:Lets not pussyfoot around

[Lunix Nutcase]

So then you have no problems with people ignoring the copyrights on all GPLed code, thus negating any enforcement of the software license, no? Those copyrights to GPL code are doing nothing but hiding information and making the rich richer, right?

Re:Lets not pussyfoot around

[starbugs]

Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it.

Hmmmm...

The disclosure requirement lies at the heart and origin of patent law. A state or government grants an inventor, or the inventor's assignee, a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.

src

So the idea of patents was so that there would be fewer trade secrets. At least that was before information traveled at the speed of light.

Re:Lets not pussyfoot around

[bzipitidoo]

If there was no copyright or patent law, there would be no need for the GPL. The whole point of the GPL is to stop businesses from locking up or "paywalling" software via copyright and patent law. True, they might try modifying freely available software and not sharing those modifications. Copyright law is used to force them to share, and that "viral" aspect wouldn't work without copyright. But copyright is hardly the only way to ensure reciprocity. There'd be other ways.

Re:Lets not pussyfoot around

[mr_matticus]

Not fewer trade secrets, but a strong economic incentive to elect full disclosure, without the competitive disadvantage that comes with it. Trade secrets actually have become more pervasive as the patent system progressed, because companies have specifically elected against public disclosure.

Patents help inventors who do not want to jump through the hoops of trade secret protection but also do not want to give away their hard (and often expensive) work. The statutory schemes primarily help smaller players, since the large corporations can afford the contractual and transactional licensing work to ensure that their products remain their products, even in the absence of statutory patent and copyright law. On the other hand, smaller inventors can rely on the basics of that work being put forth by the government--lowering costs significantly.

Same deal, roughly, with copyrights. It facilitated broad access to creative works without giving away the store, as it were.

Both systems have problems, but both also work remarkably well and with a great deal of flexibility. Patent and copyright holders have a great deal of choice in how to weigh the balances, exactly as it should be. Some patents are licensed royalty-free; some copyrights are voluntarily abandoned or licensed in a permissive style (e.g. BSD, GPL). Other choose to exercise more control because they can afford to.

The problem isn't the system; the problem is that like so many other things, market forces don't really interact well with certain social values. Microsoft would go open source in a heartbeat if it meant greater profitability; it's just that there's no economic incentive for voluntarily lowering the bar.

Now you could say that patent or copyright protection could be extended for those who choose to license in a royalty-free manner. That would provide some downward pressure on prices and proscriptive licensing. You could offer other perks, such as a damage multiplier in infringement cases, such that EFF lawyers and open source projects would earn greater protection.

But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

Re:Lets not pussyfoot around

[phantomfive]

Immoral? I'm not sure that word means what you think it does.

In an ideal world, people who enjoy an artists work would be able to pay the artist directly for their enjoyment. That way the artist is supported, and people who aren't interested don't have to support what they consider 'junk.' That is how it should be.

In the real world, copyright is a pretty good way to get that done. Are there problems with it? Yes, and the law is a little behind the latest technology (big surprise). That doesn't mean everything about copyright is bad.

Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song. Copyright for a reasonable length of time is not immoral, it's a good system.

Re:Lets not pussyfoot around

[DrSkwid]

I sure do hate all those paywalled BSD systems

Re:Lets not pussyfoot around

[WiseWeasel]

Oh, c'mon! At least give Jobs the chance to show you the Jesus pad before you start hatin'...

Re:Lets not pussyfoot around

[pla]

Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song.

No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers.

So yes, "immoral". Patents quite literally mean people suffer and die for no better reason than profit.


As for copyright - Apply the current trend of perpetual extensions to a few works that actually mean something to you, to which you have access only because they lack a current copyright... How about the bible? "Sorry, not yours, the Vatican holds the copyright and forbids any distribution". Newton's Principia. Darwin's Origin of Species. Hubbard's Dianetics - Oh, wait, that one does have a current copyright, and look how open and morally they behave.

Re:Lets not pussyfoot around

[argStyopa]

Actually, no, that's a complete misreading of the intent & point of such laws.

Imagine you invented The Next Great Thing in your garage.
Without these laws, Supermegacorp, seeing your great idea, could (for a trvial investment on their part) copy your idea and annihilate you competitively.

These laws protect innovation PARTICULARLY when the innovator is poor of resources to compete with rich&powerful opponents.

Re:Lets not pussyfoot around

[melikamp]

Copyright is in the direct conflict with the freedom of speech, and there is not a shred of evidence that it provides an actual incentive to produce works of art: i.e. there is no evidence that fewer works would be produced without it. It follows that it only benefits the lucky few, while the public gets stuck with a tax on all art production and consumption. Looks like a pretty good case for it being immoral.

Re:Lets not pussyfoot around

[Attila Dimedici]

No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers. .

So, exactly why would big Pharma spend millions of dollars to develop a new drug, if they must give it away once it has been proven to work?

Are there problems with the patent system? Absolutely!! Would eliminating it entirely fix those problems without creating even worse problems? Not a chance!

Re:Lets not pussyfoot around

[pla]

Would eliminating it entirely fix those problems without creating even worse problems? Not a chance!

I responded to a statement that patents have nothing to do with morality. I provided a clear counterexample (unless you consider "profit" a greater moral good than "lifesaving").

I also didn't call for the complete abolition of IP law - A hefty overhaul, yes, but I agree with you to the extent that companies need some incentive to do real R&D rather than just clone the work of others.


So, exactly why would big Pharma spend millions of dollars to develop a new drug, if they must give it away once it has been proven to work?

As I see it, Company-X could still have a limited monopoly on actual sales of their drug, in relatively wealthy areas. Denying a lifesaving drug that costs pennies in actual manufacturing costs to those for whom even a modest few bucks means their entire lifetime earning potential? Sorry but I call that straight-out "evil", no ambiguity about it.

Re:Lets not pussyfoot around

[pla]

Since the Vatican holds a patent on the bible, does that make it any harder for a person to obtain one?

Well, that would use a copyright, not a patent - Although I suppose you could perhaps patent the bible as a business method. ;)

More importantly... I used that example for a specific reason - Until fairly modern times, the church did strictly control access to the bible. Your average Joe Christian couldn't just pull out the family bible and fact-check the parish priest's claim that the Book of Steve 14:63 says "Oh ye who have a bountiful harvest, neglect not your duty to Rome and give the best third of it in tithe".

Of course, prior to the printing press this didn't take much effort, since few could afford their own bible - But that point nicely continues the example, in that a disruptive "new" technology forced a change on society that I think we'd all agree worked out for the best.

Re:Lets not pussyfoot around

[phantomfive]

As for copyright - Apply the current trend of perpetual extensions to a few works that actually mean something to you, to which you have access only because they lack a current copyright... How about the bible? "Sorry, not yours, the Vatican holds the copyright and forbids any distribution". Newton's Principia. Darwin's Origin of Species. Hubbard's Dianetics - Oh, wait, that one does have a current copyright, and look how open and morally they behave.

This is a dumb argument that doesn't even address what I said.In other words, I never said that perpetual copyright is a good thing. You fail at either logic or basic reading comprehension, or both.

Re:Lets not pussyfoot around

[phantomfive]

Copyright is in the direct conflict with the freedom of speech, and there is not a shred of evidence that it provides an actual incentive to produce works of art

You're kidding, right? This is so dumb I almost didn't want to respond to it. Have you actually looked for evidence? There is tons of evidence that the monetary incentive encourages content creation.

It follows that it only benefits the lucky few,

You mean like ARTISTS?

while the public gets stuck with a tax on all art production and consumption.

I think it is fair for people who consume art to pay those who produce it. Why do you have a problem with this?

Re:Lets not pussyfoot around

[melikamp]

There is tons of evidence that the monetary incentive encourages content creation.

Monetary incentive is an assurance of payment. Of course, if an artist has an assurance of payment (e.g. a contract or a steady pay check) then she will be encouraged to create. The problem is that the copyright does not provide such assurance, so what you are saying here is irrelevant.

There is no evidence that the rate of artistic production is affected by the copyright term (which could go down to zero). There is very limited evidence that the types of artistic works are affected, but (even if totally true) the benefit of that is completely subjective. I am getting this out of the academic research in economics. Studies have been done. Where are you coming from?

Re:Lets not pussyfoot around

[phantomfive]

If you don't understand how copyright provides monetary incentive, then you are dumb.

Re:Lets not pussyfoot around

[pla]

This is a dumb argument that doesn't even address what I said.In other words, I never said that perpetual copyright is a good thing. You fail at either logic or basic reading comprehension, or both.

I couldn't have said it better myself.

Though I have to admit - Balls man, great big ones. To attack a side point tagged on to the end of my post, while ignoring the actual response to what you did say, and then claim I didn't address what you said? 9/10.

<cue golfclap>

Re:Lets not pussyfoot around

[drsmithy]

If there was no copyright or patent law, there would be no need for the GPL.

False.

The whole point of the GPL is to stop businesses from locking up or "paywalling" software via copyright and patent law.

No, the whole point of the GPL is to provide accessibility to source code. There is nothing in the GPL that dictates code must be made available to *everyone*.

There'd be other ways.

For example ?

Re:Lets not pussyfoot around

[bzipitidoo]

Accessibility to source code is more than just having it visible. Code that can be examined but not legally changed might be considered open, but is not free. The GPL is as much or more about preventing that as about prying open black boxes.

SCO tried threatening to sue users who didn't pay them $699 for a license. That could have worked on FreeBSD as well as Linux. That's one way to "paywall". Without copyrights and patents, SCO couldn't have even made a credible threat. As it was, it took extensive legal work from PJ, a legal expert, to kill SCO's grab. It could have gone the other way. Then there's the old trick of asserting patents on parts of a defacto standard, as Unisys did with GIF and Microsoft has threatened to do with FAT. Not possible to do that if there is no patent law.

There are blatant attempts to force patentable material to be a "standard", as MS tried with OOXML. OOXML is awful for many other reasons, but if there were no patents, at the least MS would not be able to try a SCO like stunt and ding users for licensing fees.

Perhaps the big problem is a case like TIVO. They made minor changes to free software and hid it all behind hardware. How to make them share? The first problem is finding out about it, and that's something the GPL can't help with. If caught, the GPL still isn't a guarantee that they will be forced to share. Need an organization like the FSF to take them to court. Then they could fight by milking various delaying tactics for years, until the issue is dead thanks to obsolescence. As it happened, TIVO did not fight, and shared their changes. So the GPL worked in that instance.

So, how to deal with TIVO, without copyright law? If they try to claim they are the creators of the software, they could be sued for fraud. That's one way. So they don't claim that-- they admit they used others' work. Now what? Safety regulations is another way. Can't hide code that operates xray machines, flies airplanes. Ok, so the TIVO is not dangerous to health, what then? There can also be rules against hiding things bearing on the public interest, as could be the case if the software ran voting machines, stock exchanges, tax calculations and such.

The TIVO doesn't do that either, what next? Buy them off. Force isn't the only way to accomplish something. Set up a fund that promotes the arts and sciences by paying out money in exchange for secrets. They can of course refuse the deal. There is also the carrot of government contracts. Governments can easily require that anything they purchase be open. They could refuse that too. So, yet another classic means is reverse engineering. Coupled with reverse engineering is good old competition. Copyright law couldn't be used to stop that, as it wouldn't exist. Cases where copyright law has been used to stifle competition are legion, and 2 I can think of offhand are Lexmark's attempt to stop others from making compatible ink jet cartridges, and another case involving automatic garage door openers. With choices, people can choose the closed TIVO, or some competitor's open clone. The open clone is more likely to become the superior product. It could easily become prohibitively expensive to stay closed. Does that answer you?

Re:Lets not pussyfoot around

[drsmithy]

Accessibility to source code is more than just having it visible. Code that can be examined but not legally changed might be considered open, but is not free. The GPL is as much or more about preventing that as about prying open black boxes.

"Acessibility" was meant to include everything the GPL permits.

The GPL is all about "prying open black boxes". It's practically the fundamental motivation for creating it.

Does that answer you?

No. None of your "solutions" provide the same thing the GPL does. They are all "what ifs", "maybes" and "perhaps". None of them provide what the GPL does.

Look at it this way. Without copyright, there is no difference between the GPL and the BSDL. If you think the BSDL is an adequate license, then you shouldn't have a problem with no copyright. If you think the BSDL is inadequate, and only the GPL provides sufficient "freedom", then you *need* copyright to achieve that.

Re:Lets not pussyfoot around

[phantomfive]

The first half of your post was about patents. It wasn't related to what I said originally at all. Double fail. :)

Re:Lets not pussyfoot around

[AP31R0N]

A dollar is too much for something of infinite supply and finite demand.

Re:Lets not pussyfoot around

[bzipitidoo]

You are asking for more from an absence of copyright than what copyleft (GPL + copyright) can do now. There are many ways to lock things up despite copyleft, and if there was no copyright or copyleft, there would still be many ways to lock things up. I've seen this kind of thinking before. People will overlook that a proposal is superior overall because they concentrate too much on a few supposed flaws, and do not consider that the current system also can't do what they say they want. It's like refusing to use electric cars because they can't go 500 mph, overlooking that gasoline cars also can't go that fast.

Right now, businesses can simply put non-GPL software in a black box. They can make the software themselves, or find suitable BSDL software, or even do a deal with the authors of GPL software. Such a course may be prohibitively expensive, but it can be done. No way for copyleft to pry that open. In an environment where there is no copyright law, the sticks and carrots I mentioned in the GP would have a better chance of persuading them to share than the current environment.

Another thing that copyleft can't force is the sharing of modified GPL software that is only used internally. And yet another is software as a service. Instead of selling a black box, they sell only access to black boxes they keep in their own possession. It's exactly like running a website on a LAMP stack. The website operators can improve the LAMP software all they want, and so long as they don't try to sell copies of their improved versions, cannot be forced to share those improvements, despite copyleft.

If you think the BSDL is inadequate, and only the GPL provides sufficient "freedom", then you *need* copyright to achieve that.

I do not think the BSDL is adequate so long as there is copyright law. Copyleft unlocks what copyright locks up. Without locks, there is no need for keys.

Re:Lets not pussyfoot around

[drsmithy]

You are asking for more from an absence of copyright than what copyleft (GPL + copyright) can do now.

No, I'm not. In fact, I'm not asking for anything, I'm pointing out that without copyright - or something pretty much identical - you *cannot* have what copyleft delivers now. You can have a bunch of other things, but not what copyleft delivers.

There are many ways to lock things up despite copyleft, and if there was no copyright or copyleft, there would still be many ways to lock things up.

Which is irrelevant to the point. I'm not suggesting otherwise.

I've seen this kind of thinking before. People will overlook that a proposal is superior overall because they concentrate too much on a few supposed flaws, and do not consider that the current system also can't do what they say they want. It's like refusing to use electric cars because they can't go 500 mph, overlooking that gasoline cars also can't go that fast.

I'm not making any comment on whether copyright should or should not be abolished, I'm highlighting why the argument "if there was no copyright or patent law, there would be no need for the GPL" is false.

In an environment where there is no copyright law, the sticks and carrots I mentioned in the GP would have a better chance of persuading them to share than the current environment.

It would not. If there were no copyright law, everything would be locked up _properly_ with DRM, unlike the half-arsed schemes that are implemented now as a nod towards trying to prevent piracy. There is zero incentive to "share" in a system where there is no reason for anyone else to share either.

Another thing that copyleft can't force is the sharing of modified GPL software that is only used internally. And yet another is software as a service. Instead of selling a black box, they sell only access to black boxes they keep in their own possession. It's exactly like running a website on a LAMP stack. The website operators can improve the LAMP software all they want, and so long as they don't try to sell copies of their improved versions, cannot be forced to share those improvements, despite copyleft.

Indeed. And they're all irrelevant to my point.

I do not think the BSDL is adequate so long as there is copyright law. Copyleft unlocks what copyright locks up. Without locks, there is no need for keys.

Removing copyright *doesn't* remove the locks, it just swaps keys for combination pads. Similarly, copyleft doesn't "unlock what copyright locks up", it leverages the way copyright locks things up to ensure accessibility to copyrighted works and their derivatives. As I said earlier, without copyright, the GPL is equivalent to the BSDL today (as would be essentially _all_ OSS licenses).

Re:Lets not pussyfoot around

[phantomfive]

........

That may be true, but a dollar is not too much for something of value that was difficult to produce.

Re:Lets not pussyfoot around

[bzipitidoo]

If there were no copyright law, everything would be locked up _properly_ with DRM

No it wouldn't, because DRM does not work. DRM is the technological attempt to stop piracy. They wouldn't bother with legal attempts if it was possible for DRM to work. They've been trying DRM for over 20 years, starting in the 1980s when it was called copy protection. No scheme has yet to work. And so long as we don't have "defective by design" hardware, it is logically impossible for DRM to ever work.

Even if they could build DRM into the hardware ("treacherous computing"), so that users really could not make unauthorized copies, it still wouldn't stop piracy. Only takes one device without the DRM to break the protection. And there are ways analogous to the so called "analog hole", which easily fools even DRMed devices. And anyway, the public won't tolerate it. Windows Vista was a complete failure on the DRM front, and many users quickly figured out that they were sold a bill of goods, that in this respect Vista was a giant step backward from XP. Many heard that the big reason why Vista was slower and flakier was all the DRM checking it does. And too many schemes involving authorization servers have burned users when the servers had to be shut down, or they couldn't connect for whatever reason. Why else has Apple switched to DRM free mp3 files?

There is zero incentive to "share"

Nonsense. There are all the reasons that existed before copyright. In the Middle Ages, before there was copyright, universities by necessity shared knowledge, in contrast to the practices of guilds. As we can fund universities, so we can also fund innovation and art.

Re:Lets not pussyfoot around

[drsmithy]

No it wouldn't, because DRM does not work. DRM is the technological attempt to stop piracy. They wouldn't bother with legal attempts if it was possible for DRM to work.

You have this completely backwards.

The reason that most DRM schemes aren't particularly strong is precisely *because* there is the fallback of copyright law.

They've been trying DRM for over 20 years, starting in the 1980s when it was called copy protection. No scheme has yet to work. And so long as we don't have "defective by design" hardware, it is logically impossible for DRM to ever work.

"Defective by design" hardware, as you childishly put it, is exactly what you would have if there was not copyright law. Without the force of law to be the ultimate backup, DRM schemes would be a lot harder, and involve things like devices calling home, hardware dongles, and the like.

Even if they could build DRM into the hardware ("treacherous computing"), so that users really could not make unauthorized copies, it still wouldn't stop piracy.

The objective is not to stop piracy. The objective is to shift the typical cost-benefit analysis such that purchasing is a more attractive option.

Windows Vista was a complete failure on the DRM front, and many users quickly figured out that they were sold a bill of goods, that in this respect Vista was a giant step backward from XP.

The DRM in Vista is either irrelevant, or useful, depending on whether you have any DRM-encumbered material. Exactly the same as the DRM in XP.

Many heard that the big reason why Vista was slower and flakier was all the DRM checking it does.

Indeed. The FUD about Vista's DRM was extensive.

And too many schemes involving authorization servers have burned users when the servers had to be shut down, or they couldn't connect for whatever reason. Why else has Apple switched to DRM free mp3 files?

I can guarantee you it's not because they have any philosophical disagreements with copyright, patents and DRM. One need only look at the Psystar situation to realise that.

Nonsense. There are all the reasons that existed before copyright. In the Middle Ages, before there was copyright, universities by necessity shared knowledge, in contrast to the practices of guilds. As we can fund universities, so we can also fund innovation and art.

The corporations today *are* the guilds in that analogy, and there's no incentive for them to "share" unless they can be reasonably confident that everyone else will as well. Hence (in a desparate attempt to bring this back on topic) why the assertion that without copyright, there is no need for the GPL, is false - because without something like that there is zero incentive for anyone in a profit-driven situation to share (more accurately, give away) their work.

When there is no net gain to society?

[Anonymous Coward]

Question: Why can't we prohibit a cause of action for patent infringement where there is no net gain to society?
Answer: Because who is going to decide what constitutes a net gain for society? The government (Big Brother sends his regard)? A board of community leaders (who will be on the payroll of the big corporations in no time)? Judges (the same ones who make a mess of patent claims now)? That way madness lies ...

Sometimes old is better (an example)

[piotru]

Oh, don't forget that it was Clinton abolishing in the year 1999 a law from 1929 that had gotten US into the banking mess. Plus, creating innovative rules for mortgages...
Patents and Copyrights sole purpose is to enhance the society and this justification has to come back into consideration urgently.

Sure, but no reason to be sexist

[r00t]

What next? Stoning girls because they weren't virgins on their wedding?

This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more.

Modern science allows us to hunt down most of the guys too, so we don't have to be sexist. We can now get DNA just from a touch, and we can track tiny mutations in the microbes that people normally carry. Even a virus like HIV has mutations that can help lead back to the guilty party.

We can build a database with everybody's DNA signature in it, and soon we'll be able to do full sequences including microbes. We could use GPS tracking on everybody so that we can reduce the search space. We could even have chastity belts with tamper alarms, for both male and female (they can alert on proximity).

For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

Re:Sure, but no reason to be sexist

[AliasMarlowe]

For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

With a bonus extra stoning, if anyone says "Jehovah" during the show, or if a stone-thrower's beard falls off.

Re:Sure, but no reason to be sexist

[Anonymous Coward]

This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more.

I honestly can't tell if you're joking, but let's examine this statement a little more closely rather than blithely passing it off as fact...

Cut down on teen pregnancy. Yes, because teens have time and time again proven that they carefully consider the consequences of their actions in advance (and of course this assumes they never do anything silly while experimenting with drink or drugs).

Cut down on abortion. This assumes that the first point works, otherwise it might actually increase abortion. It's a relatively simple operation now for a woman to have her hymen restored to fake virginity, it's a little harder to hide the fact that you have a child out of wedlock - if you tell people they're going to be stoned to death if they happen to be single mothers you're going to see a net increase in abortions. You also have the tricky situation that the woman might be pregnant. Do you kill her and the unborn child, or do you wait until the child is born, then kill her, and if so, how does this fit into the next point...

Cut down on broken families - aside from what you do with all the semi-orphans created from your previous point, this has some pretty flawed assumptions, firstly that a man and woman can't have a happy relationship unless the woman is a virgin when they meet, secondly that a couple who stay together but are deeply unhappy, or the relationship is violent, aren't also a "broken" family and finally that couples value sex so highly they will stay together even if they are deeply unhappy just because the woman can't remarry if either of them leaves (you didn't preclude them splitting up or getting divorced after all).

STDs - of course, if women are virgins at their weddings, nobody will ever have affairs or sleep with prostitutes ever again.

The fact is we can look at recent historical (and even in some cases current) evidence of societies which enact what you condone here and we can see that all that really happens is that the death rate of young women is much higher, none of the other issues are ever really solved.

Re:Sure, but no reason to be sexist

[Walterk]

*throws stone* He said "Jehovah"!

Re:Sure, but no reason to be sexist

[Teun]

Just have look at the statistics for various nations re. the issues mentioned.

In the developed world there are hardly any unwanted teen pregnancies and by consequence very few abortions.

The main reason is because the teens in these countries have easy access to and educated on the subject of anti-conception, not because someone vainly tries to stop them having intercourse :)

At the same time the use of condoms is the best way to prevent STD's.

In parts of the world (like the Middle East) where, mainly, men feel forced to go to, often illegal, prostitutes the occurrence of untreated STD's is scary.

Re:Sure, but no reason to be sexist

[celle]

"What next? Stoning girls because they weren't virgins on their wedding?"

"This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more."

Ya, like it did before. STD's aren't new, neither is broken families; abortion and teen pregnancy???? You can't beat hormones and millions of years of evolution. Religion has been trying for thousands of years and has obviously lost. The only thing this will do is lower the population and guarantee a civil uprising like so many other times in history.

Re:Sure, but no reason to be sexist

[TENTH SHOW JAM]

At the same time the use of condoms is the best way to prevent STD's.

I would favor abstinence as more effective. Just not as much fun.

Re:Sure, but no reason to be sexist

[Teun]

The problem with sexual abstinence is that it is wholly unrealistic.

A very public example was that daughter of the Alaskan governor.

Re:Sure, but no reason to be sexist

[tehcyder]

I honestly can't tell if you're joking

That constant whooshing sound in your life must get annoying.

Re:Sure, but no reason to be sexist

[r00t]

We really don't need her DNA in the gene pool. The same goes for the guy.

That's even without the threat of stoning. If they know they'll get stoned and still don't stop, then we REALLY don't want their DNA in the gene pool.

Heck, let's stone their blood relatives to be sure.

your big chancego on then, write that law

[DrSkwid]

Go on then, write that law for us to see.

Re:your big chancego on then, write that law

[ArsenneLupin]

Can I make an attempt?

No laws shall be made nor enforced that restrict trade, in any way, of any good or service that can be offered.

Simple as that... it solves everything, does away with patents and copyrights and allows anyone to work their way from nothing, selling whatever there is demand for.

So then, it will no longer be possible to forbid sale of too powerful weapons, spoiled food, unsafe toys, etc. either. Not good.

Re:your big chancego on then, write that law

[delinear]

And as a bonus, your law just legalised contract killing, prostitution, drug dealing, etc...

Re:your big chancego on then, write that law

[Anonymous Coward]

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Re:your big chancego on then, write that law

[bencoder]

And as a bonus, your law just legalised contract killing, prostitution, drug dealing, etc...

Oops, you're right about the contract killing part. I guess in my mind the right to life comes before anything else and is an assumption I make without noticing. My error.

I have no problem with prostitution or drug dealing though.

Re:your big chancego on then, write that law

[GospelHead821]

Even besides contract killing, there are other forms of contract crime. Could I pay neighborhood kids a pittance to shoplift for me? Are protection rackets and blackmail now legal? Organized crime is a lot like a business that happens to be engaged in illegal services. What happens when the guy with the money all of a sudden bears no legal responsibility for the crimes from which he profits?

Re:your big chancego on then, write that law

[BarryJacobsen]

Even besides contract killing, there are other forms of contract crime. Could I pay neighborhood kids a pittance to shoplift for me? Are protection rackets and blackmail now legal? Organized crime is a lot like a business that happens to be engaged in illegal services. What happens when the guy with the money all of a sudden bears no legal responsibility for the crimes from which he profits?

The police hire someone to make him reconsider?

Re:your big chancego on then, write that law

[chickenarise]

...You really don't get it do you. What about the drug company that gets to advertise and sell a sugar pill that they claim prevents cancer? They get to rob all the gullible people and then shore up the company as independent analysts figure out the pill is just sugar? There is nothing glorious about a free market economy when that economy has ANY unscrupulous players. Society demanded a regulated market so that society wouldn't get screwed by lying companies. Granted, society hasn't exactly got what it asked for yet, but rest assured that no regulation is not to the benefit of society.

Re:your big chancego on then, write that law

[Moridin42]

Best part.. lawmaking is a service that can be offered. Your attempt at law makes itself illegal by restricting the service of crafting laws.

The Problem Discussed Lies With The USPTO

[cmholm]

mr_matticus closed by saying: But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

I'll agree that the parent post may have been going a bit over the top. So, I'll attempt to focus on some specific issues:

1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work. Hence, the icon for many of the /. patent-related stories.

2) Holding Patents: The original intent of the framers when setting up patent law was that inventors enjoy a limited window of time to enjoy the fruits of their inventions via a monopoly granted by the state. IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

Pray tell, what does it gain society to permit a business whose sole purpose is to quietly sit on patents in the hope that they don't turn up during a patent search, waiting to jump on the next goat who makes an actual product that might conceivably infringe? This business method is aided and abetted by 1).

Re:The Problem Discussed Lies With The USPTO

[mr_matticus]

1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one.

It's no secret that the Patent Office is badly understaffed. That's not a systemic flaw (at least in the patent system), it's a flaw in public priorities and government spending.

This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.

While it's true that a lower workload would result in more time per application, there are two major problems with the presentation of this point on Slashdot:

1. "Novel" and "Non-obvious" are grossly mischaracterized and misunderstood by the overwhelming majority of posters, with the particular point being what portions of the application must demonstrate these two elements and what the requirements for each are. The abstract, summary, or title will often state the invention in fairly "obvious" terms--by design. The actual invention is disclosed in the claims and the specification, and most of the patent stories around here gloss past that part for ad revenue and cheap laughs. Many patents presented here actually deal with the existing art in the specification.

2. It is not the function of a patent examiner to conclude that the patent works. There is no way to have a fully versed office, conversant in all applicable technologies and methods, nor is there any conclusive way to search and fulfill a negative proposition (that there is no disqualifying art in existence). It is the job of competitors and interested parties to pursue litigation, and more importantly, it is the job of the applicant to conduct an exhaustive search and certify that the patent application contains patentable material.

By design, it is litigation that primarily handles this problem.

IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

Doubtful. The entire legal system of the United States is predicated on extremely low bars to entry--a measured and intentional response to the court practices of England.

This as a matter of course includes having only minimal checks against frivolous lawsuits and it includes a full awareness of potential for abuse. It was decided, as part of the Framers' systemic design, that putting up with abuse was the cost for freedom. After all, part of freedom is living with people who make choices you don't like.

Finally, given that the very early development of the patent system involved (and to this day involves) a high priority placed on free assignment, that is, the ability to sell wholesale patented inventions, assign royalties to any party, and generally deal freely with the invention, patent trolls existed from day one. Anyone can buy a patent outright and then milk the competition.

Patent trolls have become more sophisticated and more prevalent, and their job is much easier with the Internet exposing targets for them that in, say, 1813, they'd never have heard of, but the patent system grants exclusive rights to patent holders on, among others, the manufacturing and use of the patented device or process.

The holder of that exclusive right is free to exercise it. Once again, we come full circle to "freedom means dealing with the disagreeable choices of others."

None of that is to say that there aren't reforms that can alleviate some of the burdens of today's troll industries, but the patent troll will never be eradicated without interfering significantly with legitimate patent applicants and holders. (Then of course, there's also the argument that patent trolls actually perform a useful service and respond to market forces--but that's a topic for another time.)

Re:The Problem Discussed Lies With The USPTO

[Dachannien]

There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.

To some degree this is true, but I want to make it clear that most of us do our job as well as we can in the time provided. Unfortunately, as you mention, we don't have the time needed in some cases. It's taken a lot of arm twisting to get management to agree to modify the way our production is measured, and they were kind enough to give us two more hours per case (sort of) in response to the massive issues with examiner attrition.

But all of this goes back to Congress. The USPTO is supposedly a fee-funded organization. Applicants and patent holders pay us fees for practically everything. When you apply, you pay a fee for filing, as well as a search fee. When the application publishes, you pay a fee for that. When the application is allowed, you pay a fee for it to pass to issue. You pay maintenance fees at up to three points during the issued patent's lifetime. And there are other fees: when we send you a decision on whether your claims are allowed or rejected, you have six months (by statute) to respond, but if you respond after the third month, you have to pay us an extension of time fee. If you want to file a petition pertaining to an app or file an appeal of our decision, there are fees for that as well.

The point is, we charge all these fees, and ostensibly, we run the Office by using the fees we collect... except for two things: one, the USPTO does not have authority to set its own fees. And two, the fees we collect go back into the US Treasury, and Congress has to re-appropriate those fees back to us. Throughout the late 90s, when technology was booming and the USPTO was awash in fees, Congress decided to take those fees and spend them on other programs instead of letting the USPTO use those fees to hire more examiners and update its infrastructure. The result is an inventory of over 700,000 pending applications and an average pendency of about three years - and currently, the Office doesn't have enough money to do anything other than rehire old examiners who left the Office for supposedly greener pastures (because the training expense is vastly reduced, compared to fresh new hires), despite the fact that we're shedding examiners at a rate of 500-600 a year even during the economic downturn.

So if you want a solid and sane patent system, two things are required: reform in the "how patents work" side, and proper appropriations from Congress to ensure that the USPTO can actually get all those applications properly examined.

One final note: patent examination is not expected to have perfect results. Since this is Slashdot, I'll offer a lame analogy: A person walks up to you and says, "I may have lost my needle in that giant haystack over there, but I'm not sure. Could you try to find it for me, please?" Not only is searching the prior art like looking for a needle in a haystack, but you aren't sure the needle even exists, and there's a huge line of other people who want you to look for their needles as well. Eventually, you may have to just give up and tell the person that you didn't find their needle (i.e., give them a patent). While occasionally we do issue something that shouldn't be issued, there are thousands of other applications that go abandoned and thousands more in which the claims are narrowed over the course of prosecution to ensure that the issued patent covers only what the applicant actually invented. As with everything else, though, it's the screw-ups that get all the press.

Re:what if the EU stops with software patents?

[julesh]

Would the US have to follow, or see their software industry collapse?

No. The US is, I believe, the world's largest market for selling software. To sell into it, you have to follow US law, including patent law. So for anyone who wants access to that market (i.e. the majority of software developers), they have to follow US law wherever they are; therefore why bother relocating outside the US?

Barratry

[DynaSoar]

Barratry is alive and well, in both federal and many state judicial systems:

http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/
http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/
http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king

In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.

Re:what if the EU stops with software patents?

[bcmm]

No. The US is, I believe, the world's largest market for selling software. To sell into it, you have to follow US law, including patent law. So for anyone who wants access to that market (i.e. the majority of software developers), they have to follow US law wherever they are; therefore why bother relocating outside the US?

Even if the EU is a smaller market than the US,* it would still potentially be worthwhile to develop non-US software if it was going to be significantly cheaper (due to patent licensing and massive legal costs) to make, especially for smaller developers. It could also end up being cheaper to obtain bespoke software, which won't care about weird American laws if the company commissioning it doesn't have an American branch.

* I wouldn't know how to go about finding such stats, but the EU has a greater population and GDP.

easier: award the trolls $1

[redelm]

Patent trolls are in a very tenuous position -- in the absence of a lawsuit/settlement, they would not make _ANYTHING_ from their patents (even if valid). So their damages are _ZERO_. Not some hypothetical value had they chosen to manufacture or licence.

Time to look at the concept of damages more closely, not just make them broad. There is a serious question whether juries should set damages, or perhaps as fact-finders be forced to break them down for appeals to review at-law.

Even older laws

[gmuslera]

or lack of, at least, like when there wasnt patents in general, or lasted a reasonable amount of time, or didnt existed trivial/common sense/"soft" patents.

A very superficial article

[Grond]

The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.

But do patents have to be freely assignable?

Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.

And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.

But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:

1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.

2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.

3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.

4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.

5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?

So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.

Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e

Re:easier: award the trolls $1

[Theaetetus]

Patent trolls are in a very tenuous position -- in the absence of a lawsuit/settlement, they would not make _ANYTHING_ from their patents (even if valid). So their damages are _ZERO_. Not some hypothetical value had they chosen to manufacture or licence.

You mention licensing - that's the point. Patent trolls rarely fire a lawsuit as the first salvo - they're highly expensive and the outcome is uncertain. Instead, they send a carefully worded letter to indicate that they're open to licensing negotiations. When the target declines, then they file a lawsuit. So, damages can be based off of their licensing fees, or alternately, what the fair market value of a license of that patent would be.

Re:easier: award the trolls $1

[redelm]

... so send a carefully worded reply. Whe3n they become unreasonable, then decline.

Get the patent purchase price as part of discovery!

Re:easier: award the trolls $1

[Theaetetus]

... so send a carefully worded reply. Whe3n they become unreasonable, then decline.

The point about the carefully worded letter is that if they said "we have patent x, we think you infringe, we'll sell you a license for y," then that creates a legal controversy... allowing the non-troll company to file suit for a declaratory judgement of invalidity/noninfringment in their home state, instead of E.D. Texas.

If you send a carefully worded reply that indicates you're not interested, then the troll files in E.D. Texas, and you're in a lawsuit anyways.

Get the patent purchase price as part of discovery!

Well, yeah, of course. But that's additional proof of damages. The trolls don't get them for free.

Re:easier: award the trolls $1

[redelm]

Why ever say you're not interested? Kick the can! "we are unsure about your claim and would like to discuss licencing it further ..."

If there is a first-filer advantage, grab it! You know there's a suit coming, why duck?

Re:easier: award the trolls $1

[Theaetetus]

Why ever say you're not interested? Kick the can! "we are unsure about your claim and would like to discuss licencing it further ..."

"Thank you. To proceed with discussions, please sign this non-disclosure and non-filing-of-declaratory-judgement-lawsuits contract."

If there is a first-filer advantage, grab it! You know there's a suit coming, why duck?

Because it can tip your hand early... The lawsuit may easily cost $100k. What if the licensing fee would be $10k over the next ten years?
Additionally, if you file before a controversy has arisen, then your suit could get dismissed early on for lack of standing.

Re:easier: award the trolls $1

[redelm]

So don't file too early!

As for the cost calculus, consider it prophylactic. If the defense costs 100 k$, the plaintiff will cost at least some [large] fraction of this. You need to scare them off. Delousing as a cost of business.

Humans are the the top of the food chain, so we prey upon ourselves. Do not imagine you can live as a sheep, without horns. The legal system is not intended to stop all predatation, but rather to optimize it. Any purely defensive war is guaranteed to lose.

Yes! But this is a distraction.

[CherniyVolk]

I'm in total favor of reviewing and reestablishing older precedent. For example, my store/school/park/pub or bar, my property, my responsibility, my liability so therefore my choice on who I want to serve.

However, in this case, maybe it's not necessary. I think the champerty laws ultimately govern law processes, I think they can be abused to prevent you from opening a class action lawsuit, or as retribution for having successfully disrupted the system on account of a whistle blower.

Regarding law, Lawyers should be civil servants and paid accordingly. In America it's constitutionally guaranteed legal council, but who in America can really afford an lawyer? To draw up an interesting contrast here, let's pick a hot current affair regarding what the Average Joe has access too... Medicine. We all recognize the medical field is fucked up, average Joe can't get medical assistance, that surgery is too expensive this and that. But, what about compared to the legal system (of which, we are supposed to be constitutionally guaranteed access too)? I mean seriously, has anyone ever drawn up a comparison? Today I can effectively and safely tend to my minor wounds. I can buy some ibuprofen, some cough medicine, I know how to make a splint for a broken leg, I mean I can even get real medicine, the nerve in your tooth just died on a Sunday morning guy down the road has some cocaine to tide you over till Monday. Now, in the legal system you can represent yourself but that's called a fool and the cheapest retainer fee I could ever find was 500 dollars (pro bono you ask? HAH!). The legal system is so far out of reach of the average person it seems a damn waste of time even teaching words like "court", "lawyer/counsel/attorney", "Supreme Court" in our schools.

Now, we have all argued on the patents... my objections above lay on the perimeter of a basic sentiment. We should not rely on a broken and inaccessible system to fix another corrupted system. We should fix the systems, but regarding patents, the legal system and social laws are a totally different matter in themselves.

If RedHat is so bent on trying to provide legal arguments to bring back old stuff, then they should be trying to bring back the recently revised IP laws, specifically altering the legalities of reverse engineering. To me, RedHat's proposition only serves to fix a window pane of a house sitting on a shoddy foundation. I think we need a whole new house.

Amanda Seyfried/Julianne Moore love scene? Check!

[Impy the Impiuos Imp]

This will never happen. It sounds much more like an attack on the legal principle that a lawyer will take on a case "for free" in exchange for 1/3 the "loot" should they win.

And thus it will never get anywhere, even if its promoters scream "It doesn't mean that!" at the top of their lungs, for better or for worse.

Re:fetuses aren't legally people

[PopeRatzo]

If fetuses were legally people, abortion would be tried as murder.

There are a bunch of people in the US that want exactly that. Fortunately, they are not taken seriously.

They're the ones that buy t-shirts that say the guy who murdered a doctor in church is a hero.

Re:fetuses aren't legally people

[Anonymous Coward]

false dichotomy. I support neither the murder of fetuses nor the doctors that commit the act. I do support changing the law and would like to see murder trials of said doctors, but I don't condone vigilantism.

Shall we look at your world view with the same disdain you consider that of others? There are a bunch of people that think that fetuses aren't people and can be destroyed at will. They're also the ones that believe that eugenics, the extinction of "inferior" people, is an admirable goal. Margaret Sanger, the founder of Planned Parenthood, advocated abortion as a means of eugenics and is worshiped as a hero by that side...

Re:Did I hear "net gain to society"?

[mjwx]

And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?

What are you, some kind of communist?

Perish the thought,

To this effect I demand that each innovation must cause a net loss to society.

champerty and maintenance still wrongs in Ohio

[rssrss]

Rancman v. Interim Settlement Funding Corp. 99 Ohio St.3d 121 (2003):

"We are asked to address whether a nonrecourse advance of funds secured solely by an interest in a pending lawsuit and at a contracted return exceeding 180 percent per year is permissible under Ohio law. We hold that it is not. Such an agreement constitutes champerty and maintenance and thus is void under Ohio law."

Re:Did I hear "net gain to society"?

[Ihlosi]

To this effect I demand that each innovation must cause a net loss to society.

Society is entirely irrelevant. As long as the individual benefits, society benefits. Rising tide and all that.

(Hey, pretending to be a libertarian is kind of fun once you pick up the lingo and cast logic aside for a few seconds.)

Re:Did I hear "net gain to society"?

[mjwx]

Hey, pretending to be a libertarian is kind of fun once you pick up the lingo and cast logic aside for a few seconds.

Three books, four speaking tours and eight papers later and the Libertarians still haven't caught on to that.

evolution helps

[r00t]

If we stone the promiscuous, they can't breed. Evolution will quickly change human behavior.

This didn't work prior to DNA testing because we couldn't stone the father (sexist stoning) and because we often didn't even detect that a child was fathered by somebody other than the husband.

Hey, we can go one better. Let's do things like the ancient Chinese: you misbehave, and we kill all your immediate blood relatives. Anybody sharing half their chromosomes (or more, ugh) with you gets stoned: child, parent, sister, or brother. Unlike in ancient times, we won't miss that illegitimate kid you fathered with your cousin.