Judge Posner Muses on Excessively Strong Patent and Copyright Laws

Ars Technica reports on Judge Posner's weblog, and in particular a recent post on the excessive strength of U.S. copyright and patent law: "The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. ... The most serious problem with copyright law is the length of copyright protection, which for most works is now from the creation of the work to 70 years after the author’s death. Apart from the fact that the present value of income received so far in the future is negligible, obtaining copyright licenses on very old works is difficult because not only is 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." Reader jedirock pointed to a related article on how the patent situation got so out of hand in the first place.

Comments

Posner has been part of the problem

[JoshuaZ]

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

[JoshuaZ]

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:Why does he stop short of abolition?

[cpt kangarooski]

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.