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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inventions are quickly superseded.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.
Finally, a judge with any common sense?
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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?
...your bought representatives don't give a shit
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.
Lacking <sarcasm> tags,
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.
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.
I agree, the conditions are absent in the pharmaceutical industry as well.
... 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.
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute
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.
Expert in software patents or patent law? Contribute to the ESP wiki!
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.
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.
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??!
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
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.
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.
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
http://www.hawknest.com/