Judge Posner Muses on Excessively Strong Patent and Copyright Laws

About time... by ChristW · 2012-10-02 00:10 · Score: 5, Insightful

Finally, a judge with any common sense?

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Re:About time... by fuzzyfuzzyfungus · 2012-10-02 00:24 · Score: 3, Informative

I'd say that the jury is still out on Posner:
A couple of his equally straightforward comments(this one from the bench), during a case appealing an Illinois wiretapping law: "But I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police." and "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers,"
Re:About time... by KiloByte · 2012-10-02 00:26 · Score: 1

Don't worry, he won't be allowed anywhere he can damage the copyright/patent lobby. He filled in for a missing judge in one of intermediate appeal rungs, but 1. he's there no more, and 2. non-final appeals don't matter if both sides care enough.

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The creatures outside looked from Alt-Right to Antifa; but already it was impossible to say which was which.
Re:About time... by StripedCow · 2012-10-02 01:37 · Score: 1

Unfortunately, a judge has absolutely no power to change the system.

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If Pandora's box is destined to be opened, *I* want to be the one to open it.
Re:About time... by Joce640k · 2012-10-02 01:40 · Score: 0

Finally, a judge with any common sense?
Not really. If he thinks the most serious problem with copyright law is the length of copyright protection then he's way off the mark. The most serious problem with copyright protection is that it's being used to subvert democracy and basic human rights.

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No sig today...
Re:About time... by Anonymous Coward · 2012-10-02 02:10 · Score: 1

Don't worry, he won't be allowed anywhere he can damage the copyright/patent lobby. He filled in for a missing judge in one of intermediate appeal rungs, but 1. he's there no more, and 2. non-final appeals don't matter if both sides care enough.
His rulings in the Apple/Motorola trial did more harm than good, guaranteeing about 2 years of appeals that will earn the law firms on both sides many millions of dollars with the highly likely result being a complete reset of the trial. In some of his rulings on the case, he actually, literally (not making this up) said that previous rulings by the circuit court were stupid so he ignored them and made up his own rationale. The court that will hear the appeal; he called them stupid.
Re:About time... by Anonymous Coward · 2012-10-02 02:27 · Score: 0

Congratulations! You just proved that you have absolutely no idea how a common law-based legal system works!

Unfortunately, a judge has absolutely no power to change the system.
Re:About time... by Anonymous Coward · 2012-10-02 03:41 · Score: 0

Finally, a judge with any common sense?
Aaaand one jurisdiction looking for a new judge after the old one "willingly stepped down" under "perfectly normal" circumstances (clearly without any outside influences wielding bags and bags of cash) in 5... 4... 3... 2...
Re:About time... by hairyfeet · 2012-10-02 04:08 · Score: 1

Actually I'd say his remarks on big pharma show his common sense? Really not that great. Do you know who pays for the research for most new drugs? YOU DO, as the majority are being found by universities who then sell the patents to big pharma. The biggest cost to big pharma? ADVERTISING, we are talking 8 to 1 last figures i saw.
So no having crazy patents laws isn't required for ANY industry, it just lets a handful rake in insane profits (such as the often noted 8000% profit drugs that are causing our medical costs to spiral out of control) while shafting the consumer. I'm all for sane patents and copyrights, along with a maximum profit limit for big pharma (lets face it if they can't make money with 100% profit per sale? they probably shouldn't be in business) but unless/until we can get the blatant bribery out of government copyrights and patents will remain a joke, a way for those that got big to maintain their hold on the market by setting up tollbooths.

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Re:About time... by poofmeisterp · 2012-10-02 04:44 · Score: 1

Finally, a judge with any common sense?
He's out in no time. Common sense can't last.
Re:About time... by Luckyo · 2012-10-02 06:53 · Score: 1

Judges are actually quite often people with "common sense" because that's essentially half of their job. They must combine legislation and reality to produce verdicts.
Problem lies in legislative branch which has been empowered by our political system inherited from French revolution and corrupted over the course of last hundred years or so. Essentially the problem is that it hasn't withstood the test of time all that well, as various corrupting influences discovered more and more holes through which they could affect legislative process for their advantage and to harm of general populace who's supposed to be choosing legislators to represent themselves. As a result we ended up with a system where legislators are essentially elected by a few corrupting elements and do not represent the society as a whole as is the point of democracy.
So we get the situations where judges are pressed into dilemmas where reality and common sense are in direct conflict with legislation which started off with good intentions, but got massively corrupted over time. Copyright legislation in USA is an excellent example of such legislation.
Re:About time... by trimpnick · 2012-10-02 07:20 · Score: 1

Though it's sometimes true that drug patents come from universities (though certainly not the only source of drug patents), you have to be completely clueless about clinical trials to say that marketing costs are the only considerable expense. Let's say you get a 100 drug patents from university, you will refine purification and production methods for at least a few months and you might select 10 based on multiple criteria including in vitro toxicity for clinical studies. From those 10 drugs, maybe 2 or 3 will go to clinical trial phase 2b-3 and if you're really lucky, one will end up on the market. Clinical studies for safety and efficacy of drugs are VERY expensive and have low chances to yield a drug. This is in part why commercialised drugs are so expensive. That said, I certainly won't defend Big Pharma and say they are poor and need more support, but just keep in mind that there is a lot more to drug development than "freeloading" public university research.
Re:About time... by hairyfeet · 2012-10-02 18:24 · Score: 1

And I have NO problem with that, in fact I'd say that they deserve to make every cent of that back and then some. but drugs that end up with 8000% profits? Give me a fucking break. I have a relative on a drug that is costing medicare $117,000 a year, if he went across EITHER border the cost? $12,700. And you KNOW they ain't selling that shit at a loss in those countries, they are literally making 10 times more profits here than there, its bullshit and why our medical system is so fucked. Know how much it costs now to have a baby in Dallas with NO complications? $86,000, no shit, they have jacked the living fuck out of the drugs normally given to keep births from having complications THAT damned much.

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Re:About time... by trimpnick · 2012-10-02 23:59 · Score: 1

I agree with you about prices, as I said, not defending them at all, just saying it's not just marketing costs. Oh and I'm Canadian, so, those prices you cite for drugs seem as alien to me as little green men. It's just completely ridiculous.

Copyright is the corporate fiefdom by Chrisq · 2012-10-02 00:17 · Score: 4, Interesting

Just as must of the nobility live of the income of lands that were granted to them in distant times, corporations like Disney want a perpetual and eternal income Mickey Mouse and other ideas that would have previously gone into the public domain. You can see that 70 years after death has been extended to 120 years after creation, and looking at the trends it is clear that the aim is to keep this moving so nothing enters the public domain again. Should something written by your great great grandfather still give you income?

Re:Copyright is the corporate fiefdom by fuzzyfuzzyfungus · 2012-10-02 00:26 · Score: 4, Funny

Should something written by your great great grandfather still give you income?
Obviously not. However, the stuff my great great grandfather wrote under contract for Viacom should definitely still give them income. Anything less would be an attack on America, Job Creators, and our God-given property rights!
Re:Copyright is the corporate fiefdom by Anonymous Coward · 2012-10-02 00:51 · Score: 0

Funnily enough, they solved the problem of the nobility by introducing inheritance tax (the idea of which goes back to at least Plato - prevent families from growing to wield too much power by adding friction over the generations).
Where is the mechanism here to prevent corporations from growing too large and powerful?
Re:Copyright is the corporate fiefdom by cyn1c77 · 2012-10-02 01:13 · Score: 2

Should something written by your great great grandfather still give you income?
Yes, but only if it was written by my great grandfather. If it was written by anyone else's relative then I should be able to download it for free over the internet.
Re:Copyright is the corporate fiefdom by Zontar_Thing_From_Ve · 2012-10-02 01:43 · Score: 4, Insightful

I have long ago given up the hope that any sanity could be restored to copyright in the USA. The Capitol Records vs. Naxos case was unbelievably far reaching, with the court that heard the case ruling basically that every recording ever made in the USA, yes even back to Thomas Edison, was still under copyright. They essentially made up the law in their ruling, but as Naxos was clearly in the wrong (they knowingly violated a valid copyright on an old recording from the 1930s) Naxos didn't want to appeal and spend more money on a case they couldn't win, even though an appeal might have knocked down some of the more insane parts of the original court ruling.

What really gets me is that in this current age of declining government budgets that nobody sees the biggest flaw of the Bono Copyright law - namely that it allows automatic renewal of copyrights for free . I'm not in favor of perpetual copyrights, but as others have argued, at least make the people that want them have to pay for them. If they are so valuable then charge for them. I cannot believe the US government is willingly passing by possible copyright fees by allowing automatic free renewals. At least if renewals cost money, some people would refuse to pay it and some things would fall back into the public domain and those who really consider renewals to be valuable would at least have to pay for it. A sliding scale where the renewal costs began to get more costly over time could also finally cause things to go back into the public domain.
Re:Copyright is the corporate fiefdom by martin-boundary · 2012-10-02 01:46 · Score: 1

Tun, tun, ta! Hello Viacom, I am Robin Hood, and I am here to steal fuzzyfuzzyfungus' grandfather's copyrighted works from you to give them back to the People!
Disney: Someone catch him! He escaped from one of our patented vaults!
Re:Copyright is the corporate fiefdom by tepples · 2012-10-02 02:12 · Score: 1

I cannot believe the US government is willingly passing by possible copyright fees by allowing automatic free renewals.
I think the problem is the Berne Convention, which appears to prohibit countries from requiring a formality to maintain a copyright.
Re:Copyright is the corporate fiefdom by DaveGod · 2012-10-02 02:15 · Score: 3, Interesting

The problem with inheritance tax is that it leads to a substantial amount of inefficient, uneconomic activity as rich folk try to mitigate it.
Here in UK, if you have a large plot of land, you could:
a) rent it out and let someone do something useful with it, or
b) stick 1 sheep on it and claim agricultural relief.
Option a) would have to turn in a profit equating to approx 100% of the value of the land in order to approximately break even with the 1 sheep.
Why? Let's assume the plot of land is worth about $100. The net cash position with option
a) $100 profit less ~50% income taxes = $50 banked, plus $100 worth of land, total asset values $150. Deduct 40% Death Tax, kids left with $90.
b) $100 land, no IHT due to agricultural property relief, kids are left with $100.
Similarly, say John the entrepreneur built up a great trade, but now his heath isn't so great and he's kinda run out of steam. The business is floundering, it isn't turning a profit, each year a few more staff are let go, everyone is demoralised and it's basically crap. Another entrepreneur, James, eyes up the business, has some great ideas and the ability to pull them off. He's really on the ball and has business lined up already, very comfortable he could turn it around and grow at least 10% per year. He puts in an offer of $1m.
If John sells, he'll pay 28% capital gains tax now and 40% death tax on what's left when he dies. Net cash position £432k to his son.
If he does not sell, passing the business to his son will fall under business property relief so he'll hand over the whole business. If the son later sells he'll pay the 28% capital gains tax, so he will come out ahead provided he can sell for more than 600k.
Obviously the examples are highly over simplified, there's other things that can be done to mitigate etc, but you can see how it easily poorly thought out taxation can cast aside economics and basic common sense. I should point out that it's not just those reliefs or aggressive avoidance leading to perverse incentives, a lot of sensible IHT planning can. Also, for the avoidance of doubt I am not trying to suggest that IHT nor high taxes are a bad thing in principle, but rather that taxes have to be carefully thought about and designed - however they are mainly driven by politicians.
And BTW I am an accountant and while the above are made up for illustration, the principle is no concoction. I do not need to guess the number of clients I consider "substantially wealthy" where IHT significantly impacts their strategic decision making, the answer is all of them.
Re:Copyright is the corporate fiefdom by cpt+kangarooski · 2012-10-02 03:53 · Score: 1

The Berne convention is a problem, but the answer is that the US should withdraw from it; it's garbage, and given that our publishing industries did fine before we signed on in 1989, we clearly don't need it and don't derive any benefit from it.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:Copyright is the corporate fiefdom by Anonymous Coward · 2012-10-02 04:40 · Score: 0

You kill them after 80 years?
Re:Copyright is the corporate fiefdom by poofmeisterp · 2012-10-02 05:28 · Score: 1

Funnily enough, they solved the problem of the nobility by introducing inheritance tax (the idea of which goes back to at least Plato - prevent families from growing to wield too much power by adding friction over the generations).
Where is the mechanism here to prevent corporations from growing too large and powerful?
You only correct that AFTER it happens, not before.
There's no money in 'BEFORE' action. C'mon. Get with the times. ;)
Re:Copyright is the corporate fiefdom by Anonymous Coward · 2012-10-02 09:56 · Score: 0

I have to pay property tax on stuff I inherited. Paying said tax, ( which is a bit over 1 percent of the market price of the property on an annual basis ) gives me the right to tell someone else he can't pitch his tent there.

If I do not pay the tax, the government will not back my rights to my own stuff, and give it to someone else who will pay the tax.

The corps have lobbied long and hard, and have successfully had ideas and other imaginary objects reclassified as "property", and have lobbied for the right to tell me I cant pitch my tent there. Fine. In all equality now, in exchange for their right to tell me I can't pitch my tent there, I expect my government to exact the same property tax rate from them as they exact from me for the same privilege of telling others they can't pitch their tent on MY property.

Go ahead and claim everything if you want, then I can use the tax you paid to tell me I can't do anything to pay you to do it.
Re:Copyright is the corporate fiefdom by Anonymous Coward · 2012-10-02 13:25 · Score: 0

From your post, it sounds like the problem isn't inheritance tax, but having loopholes in it: the "agricultural relief" and "business property relief". Take those away and it works. As a bonus, you reduce the economically unproductive activity associated with administering and gaming the tax system.

Meanwhile... by zblack_eagle · 2012-10-02 00:20 · Score: 5, Insightful

...your bought representatives don't give a shit

Re:Meanwhile... by wbr1 · 2012-10-02 00:34 · Score: 1

You mod him troll but he is right. The legislature writes laws and they are bought and paid foe. The judjiciary enforces those laws and is often appointe by paid legislators. Barring umcostitutionality, he can say what he likes but the law still stands

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Silence is a state of mime.
Re:Meanwhile... by phantomfive · 2012-10-02 04:36 · Score: 1

...your bought representatives don't give a shit
This is a direct result of 95% of their constituency not giving a shit. Most people don't care about this topic. Really.

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"First they came for the slanderers and i said nothing."
Re:Meanwhile... by yuhong · 2012-10-02 12:29 · Score: 1

Yea I know. I hope the SOPA protests have improved this a bit.
Re:Meanwhile... by phantomfive · 2012-10-02 13:47 · Score: 1

Doubtful. People thought that was going to destroy the internet. Most of the people who opposed it didn't even know why. This caused me to be very cynical, more than I already am.

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"First they came for the slanderers and i said nothing."

Hold the "Well, DUH!" by overshoot · 2012-10-02 00:22 · Score: 5, Insightful

Of course this isn't news to us. The news is that someone in the legal community got the memo.

And not just anyone. RIchard Posner is the most-cited appellate judge in the USA. He's incredibly influential, and most of all on topics relating to law and the economy. To give you an idea, he has almost single-handedly convinced the antitrust bar that there is no such thing as monopoly power, statutes to the contrary, and is spearheading a movement within the legal community to "revise" antitrust law to something closer to what the railroad barons would have recognized.

So, yeah, we can feel smug. But we should also be very glad that this particular pebble is starting to move.

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Re:Hold the "Well, DUH!" by Intrepid+imaginaut · 2012-10-02 00:34 · Score: 5, Interesting

I do agree that copyright terms are ludicrous at the moment, and really only a cash grap by the likes of Disney, but the power to create and spread that creation is rapidly moving away from large companies and into the hands of individuals. A decent DSLR can create very acceptable HD movies with good lighting, sound gear is dirt cheap, home studios are springing up everywhere, graphic design programs are becoming simpler to use and master with every passing decade, it all adds up. I can see things reaching a stage where nobody really cares about copyright lengths because they'll be too busy making their own stuff.
Doesn't mean they should be changed of course, the big fish will still try to trip people up, but we're moving from "consumers" to "competition". The only question is how long they'll take to realise it and try to patent "sci-fi".
Re:Hold the "Well, DUH!" by Intrepid+imaginaut · 2012-10-02 00:35 · Score: 1

*shouldn't
Re:Hold the "Well, DUH!" by DJRumpy · 2012-10-02 02:00 · Score: 3, Informative

I don't follow the logic. New technology making it easier to create content isn't really related to patent and copyright law directly unless studios start copyrighting movie 'themes'. Content creation isn't the issue (yet). Content creation technology, however, is. Right now it's still owned by huge companies. I found the main premise of the article kind of 'duh' moment, while the last link about how it got there in the first place to be excellent reading.
We've all seen opinions about how Patent and Copyright Law has gotten out of control and this one isn't much different. The last link, however, was a very nice breakdown as to the 'breakdown' in the process.
GOOD stuff...
Re:Hold the "Well, DUH!" by mcgrew · 2012-10-02 02:41 · Score: 2, Insightful

I don't follow the logic. New technology making it easier to create content isn't really related to patent and copyright law directly
technology, science and art have things in common, including the "shoulders of giants". Everything new comes from the old. Had today's copyrights existes when Disney made Pinnochio, they would have had to buy the rights from Grimm's heirs.
The guy who wrote "catcher in the rye" successfully sued another author for writing a sequel. You have a great idea for making TV shows and movies about Asimov's Foundation series? Sorry, you can't, his widow won't let you.
Asimov died thirty years ago, his stuff should be in the public domain.

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Re:Hold the "Well, DUH!" by DJRumpy · 2012-10-02 03:04 · Score: 1

You misunderstand. I definitely agree that patents and copyright are out of control, but the parent seems to make a point that because someone can pick up a smartphone and make a movie, that the problem will somehow lessen and go away. I disagree. It will take the force of law to fix this. Someone making a movie with a phone may be easy, but it's also unlikely to threaten the status quo or major studio profits.
Re:Hold the "Well, DUH!" by marsu_k · 2012-10-02 03:12 · Score: 1

You have a great idea for making TV shows and movies about Asimov's Foundation series? Sorry, you can't, his widow won't let you.
While I agree on principle, sometimes it's a good thing.
Re:Hold the "Well, DUH!" by Stormwatch · 2012-10-02 03:15 · Score: 2, Informative

Had today's copyrights existes when Disney made Pinnochio, they would have had to buy the rights from Grimm's heirs.
No, because Pinocchio was written by Carlo Collodi, not the Grimms (whose works were compilations of folk tales).

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Re:Hold the "Well, DUH!" by cpt+kangarooski · 2012-10-02 03:41 · Score: 2, Informative

Had today's copyrights existes when Disney made Pinnochio, they would have had to buy the rights from Grimm's heirs.
Minor nit: Pinnochio was written by Carlo Collodi; it's not one of the Grimms' (and given that the Grimms merely collected stories, rather than writing their own, I'm not sure how successful they'd've been in getting a copyright. Plus there likely would've been nationality issues.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:Hold the "Well, DUH!" by dubbreak · 2012-10-02 04:36 · Score: 3, Interesting

You have a great idea for making TV shows and movies about Asimov's Foundation series? Sorry, you can't, his widow won't let you.
While I agree on principle, sometimes it's a good thing.
First, I whole heartedly agree is a horrible candidate to do the Foundation series justice. But the only reason Emmerich can do Foundation and some indie group can't is because of copyright. The people with big bucks can do pretty much whatever they want whereas indies can't afford to even think about getting rights to do so. I'm sure there are studios sitting on books/stories they've purchase just so other studios can't do them (with no plans to ever produce movies out of them).

That's the reality we live in right now with our mega corps. Not sure what to do with that singer you have in your rosters, but afraid she'll become a superstar elsewhere? Just make sure to have her tied down with a contract and run her in circles. Don't have time, interest or appropriate talent to produce a film? Buy the rights so someone else can't make it into the next blockbuster that over shadows your next formulaic super-action-rom-com-3D.

Copyright wasn't created to be used that way, just as patents weren't made to prevent innovation, but that's how they are being used by our "do anything to make bigger profits" corporations.

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Re:Hold the "Well, DUH!" by mcgrew · 2012-10-02 05:19 · Score: 1

You can make a crap movie out of thin air as easily as you can make a crap movie from an existing story. And you can make a crap movie from an existing story with the rightsholders' permission, ever see the awful SyFy channel's adaptation of "Nightfall"? Boring as hell, while the short story was as interesting as the movie was boring.

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Re:Hold the "Well, DUH!" by Anonymous Coward · 2012-10-02 05:28 · Score: 0

If you can't even factcheck the date Asimov died, am guessing it'd be a waste of my time to point out that you're suggesting that Asimov's wife should lose her 'pension' so uninventive nimrods can co-opt his creations.
To be fair, I'm less worried about Janet Asimov's restrictiveness than I am about corporations that stripped original work from authors and performers and now won't let the copyright die: folks like Chubby Checker, various creators of comic-book superheroes, and the deep irony that Disney mined the shit out of everything older than the 1920s ( Kipling, Barrie, Grimm for examples) but won't let go of anything newer.
The SF channel is a 24x7 monument to how easily one can generate crappy new content that'll barely suck little enough to attract an audience. A complete revocation of copyright isn't necessarily the balanced answer -- perhaps there are partial steps, like tiers of content (newspapers and data protected for a shorter duration than fiction) or compulsory licensing.
Re:Hold the "Well, DUH!" by Anonymous Coward · 2012-10-02 05:45 · Score: 0

I suspect that's only going to go so far, though. Slashdot readers are not a representative sample of all people, and easily the majority of the public doesn't really have any interest in content creation. They really are just 'consumers', not because of their socioeconomic status but because of their psychological characteristics. Most of the money paid for content comes from people who will never be creating significant amounts of it on their own.
Of course, this just magnifies the problem because it means that large media companies can continue weaponizing the legal system against small content creators knowing that most people don't really care about the issue.
Re:Hold the "Well, DUH!" by sjames · 2012-10-02 06:57 · Score: 1

There probably wouldn't BE a Grimms Fairy Tales at all. They'd have been forced to burn the draft if they ever hoped to afford food again.
Re:Hold the "Well, DUH!" by doom · 2012-10-02 11:48 · Score: 1

And not just anyone. RIchard Posner is the most-cited appellate judge in the USA.

He's also a really problematic "public intellectual" who, for example, was strongly in favor of the Iraq war, and has launched a number of what look like politically motivated attacks, often rather empty ones with just enough complex detail to confuse the unwary.

He's incredibly influential, and most of all on topics relating to law and the economy. To give you an idea, he has almost single-handedly convinced the antitrust bar that there is no such thing as monopoly power,

And this actually sounds like a good case in point: he's a free market ideologue who appears out-of-touch with most of the rest of us would recognize as "reality".
It's nice to have this guy on "our side" for once, but that also makes me stop and wonder if we're on the right side.

Posner has been part of the problem by JoshuaZ · 2012-10-02 00:28 · Score: 5, Informative

Posner is one of the people who has gotten us into this situation. He wrote the opinion In re Aimster http://en.wikipedia.org/wiki/In_re_Aimster_Copyright_Litigation which provided a precedent for a fair bit of modern copyright issues on the internet. He's also advocated in the past that linking to copyright violating material should be considered a violation http://www.becker-posner-blog.com/2009/06/the-future-of-newspapers--posner.html. Yes, he's right that the problems he identifies in TFA are there, but this is someone who has contributed to associated problems. It almost seems like Posner isn't quite able to say "I was wrong" but I guess we should take what we can get.

Re:Posner has been part of the problem by JoshuaZ · 2012-10-02 00:30 · Score: 5, Informative

Actually, having just reread the bit about linking, I now realized that it is even worse than that. Posner was arguing essentially that linking to a legitimate copy such as a newspaper's website should be considered a violation. See also this prior Slashdot discussion http://tech.slashdot.org/story/09/06/28/1619211/Judge-Thinks-Linking-To-Copyrighted-Material-Should-Be-Illegal.
Re:Posner has been part of the problem by Anonymous Coward · 2012-10-02 12:07 · Score: 0

In 1818, an English appeals court confirmed the right of a defendant to claim trial by personal combat. Since nobody had done this for 300 years, it came as something of a surprise to his accuser, but the court decided the law was on his side even though everyone agreed it was ridiculous.
The following year, Parliament finally abolished the centuries-old institution of trial by combat.
It's a judge's job to apply the law as written. If it's badly written, then the law should be changed - not the judgment. Deriving absurd conclusions from law is a form of activism, and it's historically the most successful way to bring about changes in the law.

Apple and Microsoft are the poster children... by andydread · 2012-10-02 00:34 · Score: 3, Insightful

of software-patent abuse in the IT world with a goal of driving Linux, Android, and FOSS out of the marketplace. They are driving up the cost of writing software. Who would have thought 20 years ago that in the future when you write software that gains any traction in the marketplace (especially system software and operating system related) you would need an army of laywers because Microsoft and Apple will find a way to take ownership of your code though the use of software-patents. All your code are belong to us.

Happy birthday to you, happy birthday to you by Anonymous Coward · 2012-10-02 00:41 · Score: 1

The copyright on this is far far from the clear cut case, the current copyright holders would have you believe.

http://en.wikipedia.org/wiki/Happy_Birthday_to_You

See, the copyright was applied before far later than the words were written, and likely the people who *really* wrote the lyrics were dead by then. Since it's such a generic lyric. The person claiming copyright on the lyrics is simply a troll that wrote it down.

However he can't be examined in court because he's dead, and whoever knew it existed before him, they're all dead too.

The power to create by overshoot · 2012-10-02 00:41 · Score: 1

I do agree that copyright terms are ludicrous at the moment, and really only a cash grap by the likes of Disney, but the power to create and spread that creation is rapidly moving away from large companies and into the hands of individuals.

Just as the power to create software moved from large companies into the hands of individuals.

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Strawman once again by Type44Q · 2012-10-02 00:43 · Score: 1

But the conditions that make patent protection essential in the pharmaceutical industry are absent.

This is a bullshit strawman argument which - even if most people haven't has been listening - has been demonstrated over and over again.

Re:Strawman once again by swilver · 2012-10-02 00:47 · Score: 2

I agree, the conditions are absent in the pharmaceutical industry as well.
Re:Strawman once again by sjames · 2012-10-02 09:47 · Score: 1

Demonstrated?

More attention to the problem! Yay! by erroneus · 2012-10-02 00:50 · Score: 1, Insightful

So yet another story identifying the harm to the public and to the industry which software patents bring. We need more and more of this. It's the new global warming -- there will always be deniers but as time and opinions increase, the deniers are becoming more silent.

"But [I/we/they] worked hard to create this [thing]. [I/We/They] deserve to collect money from everyone based on that."

Copyright protects profit motive, innovation by concealment · 2012-10-02 01:13 · Score: 1

It's easy to find people to re-design existing software to create alternatives.

However, the problem is getting together the resources to invent new software.

Without a copyright, this software will (a) soon be emulated and given away free on the FOSS level; and (b) quickly be cloned and taken out of the hands of its creators on the commercial level.

This dis-incentivizes companies and creators to invent new software types.

Re:Copyright protects profit motive, innovation by SoulNibbler · 2012-10-02 03:05 · Score: 3, Insightful

That's not quite true, very often people with money are smart enough to not re-invent the wheel if they don't need to and would much rather pay you a consulting fee or a service contract to tailor the new software to the job they need done. That produces a positive incentive innovate as you now receive feedback as to the parts of your innovations that have marketable value. The trend of clean room reimplementations came about BECAUSE of overly strong copyright, if you can purchase the time of the creator for a reasonable fee why would you ever pay more to steal it??!
Re:Copyright protects profit motive, innovation by Anonymous Coward · 2012-10-02 06:34 · Score: 0

absolutely bullshit rhetoric by those that want more IP laws, and you are simply repeating the rhetoric. Look at Tesla/Edison and that market place. Each was known to be creating things on the backs of other people's works. This is how society advances, not by lock in. Study some fucking history and learn something before repeating bullshit propaganda.

Mickey Mouse Must be Protected by devent · 2012-10-02 01:16 · Score: 2, Interesting

... the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find. The copyright term should be shorter."

Oh please we all know why copyright terms are continuously increased. Because of companies like Disney do not want to lose one of their most profitable franchise (The Mickey Mouse Protection Act). Also the MPAA, RIAA and the like do not want to compete with public domain work that are just 14 or 24 years old (which was the original copyright terms, and that in a time where the most advanced copy-machine was the printing press).

I just wait until 2019, in which year we get the Protect Mickey Mouse to the End Of the Universe Act of 2018, in which the copyright terms are increased to the life time of the sun, which is per definition limited to just a few billion years and as such in bounds of the constitution*. Of course it will not end in the USA, because of some "free trade" treaty the copyright terms will be all "aligned" across the EU, Japan, Australia, Canada.

Also just forget about your rights to privacy and due-process. Because Mickey Mouse is one of the most important national treasures, there is no freedom that can be sacrificed to ensure future profits. Personal computing is also overrated, to protect our artists we need to put everything in a walled garden with Trusted Computing Chips and open source operating systems will just be made impossible to install. We already put teenagers in jail for copyright infringement. Due-process is already gone for good, and who cares about privacy and guaranteed rights, like private copy and format shift? We just declare everyone a pirate, that's easier anyway.

[*] http://en.wikipedia.org/wiki/Copyright_Clause

... by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

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Why does he stop short of abolition? by ciaran_o_riordan · 2012-10-02 01:18 · Score: 5, Interesting

He also wrote a good piece back in July:

http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/ ...where he repeats most of the arguments that people use to ask for abolishing software patents, but he stops short and instead muses on a few reforms (that probably wouldn't have much of an effect).

Here's my views on his July piece:

http://news.swpat.org/2012/07/posners-problem/

And there're a few more links about his positions here:

http://en.swpat.org/wiki/Richard_Posner_on_software_patents

Abolition seems like the logical conclusion of his musings. I can't see why he doesn't discuss it.

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Re:Why does he stop short of abolition? by neghvar1 · 2012-10-02 03:18 · Score: 1

If patents and copyrights were abolished, there would be little motivation to create anything. No more music, movies, TV, books...need I go on? Same with new technologies. Progress would cease.
Re:Why does he stop short of abolition? by cpt+kangarooski · 2012-10-02 04:00 · Score: 4, Informative

This is demonstrably untrue.
Prior to 1710 in England for copyrights, copyrights didn't exist anywhere. Yet plenty of works were created. And even today, most creative works are created due to motives other than seeking to profit from a copyright on those works.
That said, I don't think copyright abolition is needed presently, just massive reform.
Patents are somewhat better, but we'd be better off treating different domains of the useful arts differently. Software and business methods seem to not only not need the incentivizing effect of patents, but are actively being harmed by patents. For those fields, abolition would be appropriate for the time being. Maybe later things will change and we could revisit the issue. In other fields, patents still seem to have some use.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:Why does he stop short of abolition? by neghvar1 · 2012-10-02 04:13 · Score: 1

Things are very different now than they were pre-1710. Today, money and greed run the world. There are the few who care more about the message than the money.
Re:Why does he stop short of abolition? by Anonymous Coward · 2012-10-02 04:28 · Score: 2, Insightful

I'm pretty sure money and greed ran the pre-1710 world as well. There were no good ole' days I'm afraid.
Re:Why does he stop short of abolition? by Anonymous Coward · 2012-10-02 04:31 · Score: 1

Same with new technologies.
You mean like how nobody made software until 1990 when software became patentable?

Ooops, Slashdoted already by Pepebuho · 2012-10-02 01:42 · Score: 1

Damn, coldn't read the original

FWIW, which is $tens of trillions by Impy+the+Impiuos+Imp · 2012-10-02 01:49 · Score: 2, Interesting

1. Source code is invention, not artistic work of art. Patents only.

2. A simulation of an already-existing thing is not inherently patentable. This is not to say a particularly clever implementation may be patentable.

3. The dancing bear is in the software. Attaching robot arms and legs to it adds no invention patentability. The patent is the software driving the car, not the sensors or wheels or GPS integration in conjunction with a processor and a single, magical line item that "software" magically does the impossible.

--
(-1: Post disagrees with my already-settled worldview) is not a valid mod option.

Re:FWIW, which is $tens of trillions by Anonymous Coward · 2012-10-02 06:38 · Score: 0

I think most actual "inventors" would agree with your assessment, however the legal people deny any such thing.

US Copyright is weak comparatively to EU countries by electrosoccertux · 2012-10-02 02:00 · Score: 1

FYI, US Copyright is notoriously weak.
Most EU countries just have a strong Copyright law, which is how they handle Intellectual Property. Your schematic design is not patented, it is covered by Copyright.

Nonliteral copying by tepples · 2012-10-02 02:05 · Score: 5, Insightful

I can see things reaching a stage where nobody really cares about copyright lengths because they'll be too busy making their own stuff.

Not if the likes of Disney manage to convince a judge that people making their own movies with DSLR have infringed copyright in the nonliteral elements of works owned by the likes of Disney, or if people making their own movies with DSLR simply lack the millions of dollars to litigate a competent legal defense.

The only question is how long they'll take to realise it and try to patent "sci-fi".

And that's where nonliteral copying comes into play: attempts to use copyright to claim exclusive rights in the use of a specific set of tropes together, or to use copyright or trademark to claim exclusive rights in adaptations of a given pre-1923 story to film that one of the major studios has already adapted.

Video game exclusion by tepples · 2012-10-02 02:07 · Score: 1

Just as the power to create software moved from large companies into the hands of individuals.

This is true of functional applications for PCs. It isn't yet true of video games in certain genres, as platforms that encourage the use of gamepads with physical buttons have fairly strict criteria for who may buy the developer tools. (Bob's Game anyone?) This will change, but only if Ouya is released.

Re:Video game exclusion by icebraining · 2012-10-02 03:38 · Score: 1

I don't own one, but isn't XNA an access for small developers to one such platform?

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Re:Video game exclusion by dubbreak · 2012-10-02 04:14 · Score: 2

This will change, but only if Ouya is released.
It's already changing. I can target Wii, PS3 and 360 with Unity. With the new release one will be able to target WiiU. Not only that, but Nintendo is licensing Unity so they can distribute it to developers (presumably as a defacto SDK for WiiU). It looks as though Nintendo has seen the light (plenty of indie developers out there creating great games that should be on the WiiU, if they want the WiiU to be relevant).

The Ouya looks cool (almost kickstarted it, but dragged my feet for various reasons and time ran out). The idea is cool, but I question how much traction it will get. Indie gamers have so many other platforms they can target and the mobile ones are a huge market. Since the Ouya will support Unity, then devs with enough time will port stuff (pretty trivial), but I don't see a lot of value in targeting a system which will have such a limited user base. Most gamers (especially the geeky ones kickstarting the Ouya) have other platforms I can target (definitely mobile, but most likely console(s)). So I'm not missing out on those potential gamer by not targeting the Ouya. The idea of the Ouya is great. The price point.. it's ok but not great for the performance and not low enough for it to be a impulse buy for your average person. It's barely cheaper than a Wii and who's heard of it beyond slashdotters?

We'll see. I'd like to see it do well. I'd like to see it do well as a console, but it may find success in another avenue (such as a media frontend).

--
"If you are going through hell, keep going." - Winston Churchill
Re:Video game exclusion by tepples · 2012-10-02 05:03 · Score: 1

I can target Wii, PS3 and 360 with Unity.
Provided that you're a large enough organization to qualify for the devkit. Otherwise, the only console you can dream of targeting is the 360's Xbox Live Indie Games environment.
Re:Video game exclusion by dubbreak · 2012-10-02 08:27 · Score: 1

I can target Wii, PS3 and 360 with Unity.
Provided that you're a large enough organization to qualify for the devkit. Otherwise, the only console you can dream of targeting is the 360's Xbox Live Indie Games environment.
Like 2D Boy a team of 2 guys?

Make something compelling and company size doesn't matter. The previous history of consoles there was nearly 0 interest in having indie titles, now indie gaming is really coming into its own and the big console companies are coming around to that.

I think Ouya would have been more successful in the era of PS2, Gamecube and XBox. Of course producing a console on the cheap didn't really become possible until the proliferation of SoC.

--
"If you are going through hell, keep going." - Winston Churchill
Re:Video game exclusion by tepples · 2012-10-08 05:16 · Score: 1

On what basis, exactly, did Nintendo decide to accept 2D Boy yet decline Robert Pelloni?

The true purpose of copyright by neghvar1 · 2012-10-02 02:55 · Score: 1

The true purpose of copyright is to motivate the creators to continue creating in this sense. Creator creates song which is copyrighted and they profit from their creativity. Copyright expires. If Creator wants more income, use their creative mind to create more great works and copyright them. A creator’s great great grand children should not be profiting off their ancestor’s work. Because of how quickly technology changes, software copyrights should be greatly decreased. Windows XP’s copyright expires in the 2090’s. Think there will be any hardware that could run XP in the 2090s? or even in 2050? I believe software copyrights should be 20 years. Look at the market for classic games which are no longer manufactured, marketed, supported or profitable (abandonware) yet the copyright holders often continue to enforce copyright. Copyright, according to the constitution, is supposed to be limited, but it is continuously being lobbied for perpetual extensions. For instance, the Copyright Term Extension Act (aka Mickey Mouse protection act) was heavily pushed by Disney because Mickey Mouse was approaching the end of its copyright term and as 2019 approaches, you can bet that Disney will lobby for another extension of copyright

Re:The true purpose of copyright by sjames · 2012-10-02 10:05 · Score: 1

Even 20 years might be excessive. XP will be 14 years old when it is EOL. It's already been declared obsolete. It would already be EOL if corporate pressure hadn't convinced MS to grant a reprieve. That's the actual creator of the work declaring it dead.

Where is the inheritance tax? by Anonymous Coward · 2012-10-02 03:05 · Score: 0

Really. There isn't one.

Corporations are "people" by bussdriver · 2012-10-02 04:51 · Score: 1

Extend existing law to 70 years after the death of the corporation. Buy outs are a corporate version of regeneration; they rarely die if they have valuable assets.

--
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TRIPs by tepples · 2012-10-02 05:04 · Score: 1

The Berne convention is a problem, but the answer is that the US should withdraw from it

To withdraw from Berne, a country must first withdraw from the World Trade Organization, and I don't think other U.S. industries are going to take a liking to that option.

Re:TRIPs by cpt+kangarooski · 2012-10-02 05:28 · Score: 2

The executive branch and industry and compliant members of congress pushed for Berne and other recent copyright treaties so as to generally remove Congress from the loop on copyright matters and to prevent meaningful debate and opportunities to modify proposed legislation. But it's mainly a matter of throwing our weight around. If we wanted to get out of Berne, TRIPS, et al whilst otherwise keeping the WTO, we could, fairly easily.
The issue is the lack of will to do so by the people who could do it (in fact, hostility toward the notion) and our broken political system that keeps them in power.

--
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:TRIPs by sjames · 2012-10-02 07:07 · Score: 1

I'll bet a way to avoid that would be found if the U.S. threatened to withdraw from WTO if necessary.

Bluetooth gamepad by tepples · 2012-10-02 05:18 · Score: 1

Most gamers (especially the geeky ones kickstarting the Ouya) have other platforms I can target (definitely mobile, but most likely console(s)).

One problem with mobile is that few smartphone and tablet owners have an iControlPad or other Bluetooth gamepad. Some game genres don't work well with a completely flat touch screen; they need some sort of texture to let the player find the buttons.

Wait, why are drugs different again? by paulsnx2 · 2012-10-02 06:00 · Score: 2

Big Pharma pushes the myth that their investment is Big and is Important, so they really need patents. All the while, they are pulling in huge margins on drugs that are not provably better in many cases than placebos.

You want to do the one thing today that would have the biggest impact on reducing Healthcare costs?

End Patents on Drugs, Genes, Medical devices, and Medical procedures.

All of them.

You still have the FDA to approve quality and safety. Anyone wanting to produce the latest anti-depression drug, or blood pressure medication still must jump through those hoops in insure quality and safety. That is barrier enough for drug companies to recoup R&D costs and gain position in the market place.

But wait! What about the profits?!? Think of the money that drug companies won't be able to make! Think of all the little competitors that will be able to leverage existing technology and undercut our costs! Think of all the little stinking improvements little companies could make to drugs and devices to displace the big companies on which we all depend!

Exactly.

Re:Wait, why are drugs different again? by Anonymous Coward · 2012-10-02 06:47 · Score: 0

The cost of trialing one generic is trivial compared to the costs of developing and trialing 50 drugs to generate one "hit".
Re:Wait, why are drugs different again? by paulsnx2 · 2012-10-02 07:54 · Score: 1

The costs of developing drugs is more like 55 million (on average, including the costs of drug failures) than the 1.3 billion that the drug companies claim. On the face of it, there isn't any way drugs cost as much to develop as the drug companies claim, or (given their revenue) they would be losing money rather than making money (which they most certainly are).
Competition is a good thing. We have never had an industry anywhere in the world that has failed as an industry due to competition. But what the drug companies are saying is that they cannot stand up to competition. Well, why not? Innovation comes from solving problems, not sitting behind government enforced monopolies.
Re:Wait, why are drugs different again? by Comrade+Ogilvy · 2012-10-02 09:04 · Score: 1

You want to do the one thing today that would have the biggest impact on reducing Healthcare costs?
End Patents on Drugs, Genes, Medical devices, and Medical procedures.
Not even close.
The total US expenditure for pharmaceuticals is only 10% of the aggregate medical bill. Medical devices are far smaller piece of the pie. You might realize a one time 4% or 5% downward notching of the costs by radical legislature means, but that is all.
In the long run, pharma research and medical device research brings downs costs; in context, the savings to be gained by gutting that system are small potatoes. The real problem is more fundamental: we need to get away from pay for service -- that is bribing doctors to keep you sick.

20 years max. by Anonymous Coward · 2012-10-02 07:06 · Score: 1

20 years. Copyright should run for one generation after date of creation. After that, the next generation inherits the work and builds on it. You had 20 years of joy from the thing, whatever it was. If you were any good, you created another thing later on, and lived off that for another 20 years. Create 2 things and live off of them for all of your working life, done. But that's not what we have now. Your great great great gets to benefit from something that you did, even if you never met, and they can't even pronounce your name properly. Its absolutely stupid. There should be *NO* patents on software (its all math, after all), and everything else gets 20 years. Also, copyright is meant for the original author to benefit. If its sold, each subsequent owner gets half of the remaining time of the previous owner.

Software should not be patentable by Tenebrousedge · 2012-10-02 07:47 · Score: 1

First, one must take exception to the idea that source code is not creative. As examples, look at any IOCCC entries -- I like the flight simulator in the shape of an airplane. Secondly, you may examine the DeCSS Gallery and judge whether any of that may be considered a creative expression.

What you are perceiving as lack of creative expression, though, is the flaw in your arguments: software is not eligible for patent protection because it consists of mathematical operations.

Software is Math
To most students of Computer Science this is as inarguable as evolution in the biological sciences. At the fundamental level, modern computers only function is to carry out binary arithmetic. This ipso facto means that any function computers do is mathematical, but one might make the argument that things which are not inherently mathematical can nevertheless be modeled or represented using mathematics, and that software is something modeled in math rather being defined in it.

You would be very, very wrong. At the point in which Alan Turing laid out the foundations for all of computer science, no such calculating machines existed. Computers were designed as implementations of mathematical concepts. Programming languages grew out of a branch of mathematics called Lambda calculus, and Lisp in particular is fairly trivially convertible to mathematical statements. All concepts in computer science are defined in formal language which is inherently mathematical -- even the concept of a formal language itself. One consequence of this is that it is possible (though extremely difficult all but trivial programs) to construct a formal mathematical proof of any given program's correctness.

This is not to say that there can be no creativity involved in designing algorithms. However, there we may separate the concept from the expression of the concept, and say:

Math is Discovered, not Invented
This is admittedly a philosophical stance, but it has historically been the majority position. It is obvious that one may not "invent" the mathematical operations of arithmetic: they are a consequence of your choice of axioms. It is less obvious to prove Fermat's Last Theorem, but the separation of true statements from false ones is not "invention".

The contrary position leads to absurdities, e.g. if mathematical laws did not exist before their discovery, then gravity could not have existed before Isaac Newton.

Monopolies on Mathematics are Absurd
It is again, intuitively obvious that patenting "1+1 = 2" is as absurd as patenting the process of obtaining patents. No person can have any exclusive right to a mathematical concept: they exist solely in the mind, and by definition are arrived at from pre-existing axioms. You can no more separate a mathematical concept from its derivation than you may an individual from his: it is the ultimate prior art. If you wish to use a part of the mathematical birthright of every man, the fruit of human genius, as means to your private profit, you may feel free. However, enlisting public resources to that end by claiming monopoly right to a concept, is criminal and offensive.

The same mathematical function may have varying representations. To protect a particular expression of an idea, we have something called "copyright".

Empirical Studies
Finally, we may view the chaos that has resulted from the legal fiction of software patents: there can be no more useless expenditure than to dispute the ownership of mathematical concepts. A more thorough discussion of the practicalities is out of scope, but you may peruse more scholarly treatments at your leisure.

--
Those who advocate genocide deserve every protection afforded by law, and none afforded by common human decency.

One Answer to Patent them all by hhawk · 2012-10-02 08:38 · Score: 2

Only Greg Aharonian has a working solution to the patent "wars" and it doesn't rely on using divination to determine what and what can't be patented.

Greg basically says a) anything invented can be patented (hardware, software, whatever) BUT (big BUT) it has to be done with proper science something he often feels that both the PTO and the US courts don't understand. Paraphrasing Mr. Aharonian, if after a solid review of patented and non patented prior art, something can be proven with logic and science to be a new invention it's worthy of a patent and if it isn't then no patent should be issued.

It's taken me years and years of reading Greg's musing on patent's to really understand his prospective (I hope I really do...); Why worry about false issues about what type of technology is used; tech is tech, what matters is if you have done something truly novel.

http://ns1.patenting-art.com/

http://inventors.about.com/library/weekly/aa071297.htm
http://www.wired.com/wired/archive/8.06/patents_pr.html

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http://www.hawknest.com/

US mess was a warning against EU software patents, by D4C5CE · 2012-10-02 10:55 · Score: 1

i.e. at least spared other continents from the worst (e.g. when certain courts and Commission were attempting similar "power grabs"), as shown in several articles at http://ijlit.oxfordjournals.org/reports/most-read (cf. also various developing nations restricting patenting of "traditionally known" biotech).

Posner: "loose cannon" by doom · 2012-10-02 12:40 · Score: 1

And stopping to RTFM (from arstechnica):

The copyright scholar (and sometime Ars contributor) James Grimmelmann called one of Posner's recent opinions in a copyright case "astonishingly slipshod, even by Judge Posnerâ(TM)s relaxed standards."

Clout to buy rights from Travers and Norton by tepples · 2012-10-03 10:53 · Score: 1

Had today's copyrights existes when Disney made [Pinocchio], they would have had to buy the rights from [Collodi's] heirs.

That's exactly what Disney did when making Mary Poppins and Bedknobs and Broomsticks: bought the rights from PL Travers and Mary Norton. But by then, Disney had the clout to afford such a license.

You have a great idea for making TV shows and movies about Asimov's Foundation series? Sorry, you can't, his widow won't let you.

Then write a story about a widow.

Encouraging the majority to exclusively consume by tepples · 2012-10-03 10:55 · Score: 1

Anonymous Coward wrote:

the majority of the public doesn't really have any interest in content creation. They really are just 'consumers', not because of their socioeconomic status but because of their psychological characteristics.

To what extent are these "psychological characteristics" innate or trained? I want to rule out the possibility that the major publishers are encouraging the majority to exclusively consume, but I'll need evidence to do so.

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Judge Posner Muses on Excessively Strong Patent and Copyright Laws

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