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created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded.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

Copyright is the corporate fiefdom

[Chrisq]

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

[DaveGod]

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:Hold the "Well, DUH!"

[Intrepid imaginaut]

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".

Mickey Mouse Must be Protected

[devent]

... 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.

Why does he stop short of abolition?

[ciaran_o_riordan]

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.

FWIW, which is $tens of trillions

[Impy the Impiuos Imp]

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.

Re:Hold the "Well, DUH!"

[dubbreak]

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.