Posted by
ryuzaki0
on from the stuff-to-read dept.
Somnus writes "This
essay is as well-composed an argument I have seen opposing today's conception of copyrights and patents. "
Its long, but it looks good.
There's still contract law, though: two people can contract to do anything legal. If I've written some interesting book and I'd like money for it, and I don't have copyright law to back me up, I'll just offer a contract: for $6, you can buy a copy of the book, with the stipulation that you're not allowed to give/sell a copy of the information to anyone else (unless, in the process, you get rid of the copy of the information that you've bought).
You could own the physical book, and it could sit on your shelf, but you wouldn't own the information inside of it; not in the sense of being able to do with it as you please.
So eliminating copyright law doesn't do anything; it just changes the way in which I make a profit from information I've produced.
Copyright law is better. Yeah, the length increases are just an abuse, but the copyrights *do* expire after a time, they're simpler than having to draw up contracts all the time, and the way in which everything's handled is relatively uniform; I'd hate to have to deal with a different license per work.
Re:Copyrights
by
Anonymous Coward
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· Score: 2
If it didn't exist, I wouldn't write books. Really, for some people, that's their livelihood; you'd have to come up with some other mechanism for supporting them. Maybe no one should be a full-time author? Maybe there could be government subsidies? Blah; give me copyrights; let *me* choose how my work is distributed, instead of discriminating against me just because the cool things I create are easy to copy.
The problem here is that copyright holders already use contracts to attempt to strengthen their stranglehold on a product. You are correct that one could view copyright as simply a "standard contract". However, software companies routinely enclose license agreements that go far beyond the rights they would have under copyright. For example, prohibiting bechmarks or disclaiming warranties. The copyright holders seem to want the best of both worlds. They want to use contract to bind their "legitimate" users and copyright to bind everyone else. In fact, in the case of software the author can have various powers over the users via contract, patents, copyright, trademarks, and trade secrets! It's a wonder there's anything left over for the poor user.
Imagine a world without copyrights. There's still contract law, though... [ and the result is the same just with less hassle ]
this is a common misconception.
the important difference is third parties: if person A signs a contract with B, but then A violates the contract and posts the information on the internet, and C downloads it and gives a copy to D.
now under copyright, B & C are criminals. but with contracts, only B has violated the law and their on word.
IP - We NEED it, and why.
by
Anonymous Coward
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· Score: 2
I cannot imagine why writers continue to question the need for IP in modern society. The fact is that IP is absolutely essential for the progress of technology. Do you think that Merck is going to invest several billion dollars per year into the development of new drugs without the assurance that they will have the ability to recoup their investment? Drugs are highly expensive to develop, but relatively cheap to manufacture. This is true of much of technology today. The idea of a lone inventor working in a garage coming up with an important boon to society is a really rare exception today. Real R&D costs big time, and companies will not pay for it if they cannot have some sort of assurance that it will benefit thier bottom line.
Not to mention the issue of 'trade secrets'. The authors of this article fail completely to examine the contract between the inventor and government that patents represent. The concept of patent in modern law is simple - it is a contract between the government and the inventor. This contract gives that inventor exclusive rights for a period of time for commercial rights for a product. In return the inventor fully discloses the nature of his invention, that is makes his knowledge available to all. WITHOUT PATENTS INVENTORS DO EVERYTHING POSSIBLE TO KEEP THEIR INVENTION SECRET. History is full of examples of this, and it is proven the lack of this dissemination of knowedge slows the rate of progress in a modern society.
Certainly, with any law or set of laws there are negative affects as well. But the simple fact of the matter is that IP laws are a long-proven spur to the development of technology that improves the quality of life of all mankind.
Re:Intellectual sharing
by
Aaron+M.+Renn
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· Score: 2
Ah, yes. Scientists never shared information before patents. All those mathematics journals and mathematics conferences dealing with non-patentable material are an illusion. Prior to the introduction of copyright law during the Enlightenment, no scientific progress occurred. Obviously the great Greek literature and scientific writings must have been forged.
Your blanket assertion that "no one is going to want to share" without intellectual property is ludicrous. What are you a scientist of?
Re:May Be Stronger Libertarian Case FOR IP
by
Aaron+M.+Renn
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· Score: 2
The leading quote by Hayek points out one of the problems with people like Rand. Namely, she made her money via royalties on copyright and so has a vested interest in the current system.
BTW: I'd like to point out that there are people (including libertarians) who object to the current scheme of private property in land as well. (I'm one of them, though not a libertarian). Libertarian notions of property are based on people have the rights to the fruits of their own labor. Land, however, is not the fruit of anyone's labor. Nobody created the land. It is the free gift of nature. In practice, virtually all land title derive from conquest and arbitrary territorial claims resting on no clear legal or ethical principle.
Re:May Be Stronger Libertarian Case FOR IP
by
Aaron+M.+Renn
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· Score: 2
Pareto optimal only means there is no way to make someone better off without making someone else worse off. 100% to me and 0% to you is pareto optimal.
It's not my intention to present the definitive argument against absolute property rights in land. What I will say is that property is a bundle of rights and that those rights can be unbundled. Someone can have exclusive possession of land without having absolute ownership rights (as we currently definte them) over it.
While the current system might put land in the hands of people who are willing to pay the most money for it, that does not actually mean society is better off as a result. Many people desire to hold land for speculative purposes rather than putting it to productive use. Many very valuable (and potentially useful) pieces of land in vacant for this very reason.
Re:Interesting arguments
by
Frater+219
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· Score: 2
By "information is a universal" the author does not mean that information is everywhere. This use of the term "universal" is a slightly obscure philosophical use. A better word for the same thing might be "an abstraction" -- something which is not concrete and physical, but abstract and mental.
A piece of information, considered apart from the medium upon which it is recorded, is an abstraction. That's what copyright is granted for. However, by definition, abstractions don't exist in the physical world -- and unless, as the author says, we accept Platonic Formalism, they don't exist at all, any more than perfect circles do.
What the US Constitution has to say
by
Frater+219
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· Score: 3
If you accept the Constitution's argument, then copyright (in the U.S.) is not founded on a "natural right" but rather on what is known as a consequentialist argument. That is, the Constitution does not say "Copyright is granted because it is a natural right of authors to control their works" but rather "Copyright is granted for the purpose of promoting progress."
Given this argument, one can then argue that copyright and patent are only justified insofar as it actually does promote progress, and that in those cases where it inhibits progress, they are not Constitutionally justified.
Hence, if it could be proven in court that a particular granting of patent or copyright was inhibiting progress in the relevant field, it would not be unreasonable to overturn the patent or copyright, simply on the grounds of not being Constitutionally justified.
(Note that this assumes strict Constitutional constructionism, aka strict enumeration of powers -- the doctrine that the Constitution specifies the powers of the Federal government, and that the government has no legitimate powers which are not expressly granted to it. The last strict constructionist on the Supreme Court was Justice Hugo Black, many years ago, who actually had the daring to say that when the Constitution says "Congress shall make no law..." it actually means NO LAW.)
Re:What the US Constitution has to say
by
werdna
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· Score: 2
These words do not mean what you think they mean. As an aside, the term "strict construction," at least as that term is used by jurisprudential scholars, has little to do with the proposition you cited, although you adequately characterized Justice Black's absolutist view of the First Amendment as one of strict construction. (Interestingly, if strict construction meant what you said it did, citing the first amendment, which does not enumerate, but rather limits powers, would be a bad example. Black's analysis, I think, is far closer to "textualism" than strict construction, but that's another piece.) But I did not write to get deeply involved in semantics or definition of terms.
The words I am concerned about are the use of the actual language of the constitution, "to promote the Progress of Science and useful Arts." This is not a general requirement to promote "progress," indeed, that construction is not permitted from the text. Nor is it even to promote the progress of sciences as we commonly use the term (for "useful Arts" does not refer to copyrights). Rather, they meant an older definition of Science, used at the time, and consistent with correspondence between Madison and Jefferson, to wit: "the sciences of reading, writing and ciphering;" or rather "a trained skill" as in an occupation.
The Sciences, the progress of which was to be promoted, was the technical skills of the writer. The useful Arts were the technical skills of the inventor.
I *do* understand that this seems obscure and unlikely to someone seeing it for the first time. I do understand these are archaic references (although the phrases quoted above were taken directly from Webster's Third New international).
Please understand that I too was a skeptic until I saw the research. To motivate this construction, please consider how a protecting purely fictional works of authorship or poetry could ever be found to promote "Sciences and the useful Arts."
References available upon request -- they are not online, not terribly -- be ready to sink yourself deeply into the Jeffersonian mind and 18th century-speak. This, by the way, is the strict constructionism as practiced by Bork.
Is there an ethical relationship, however? Beyond that, when one checks out that book, and the first thing listed inside the cover is the copyright notice, does one ignore it, agree with it, or return the book to the library unread? Most libraries I have seen have nice, big signs over their copiers reminding people of copyright issues and fair use. Out of curiosity, when one receives their library card or access, did it come with a list of rules of use of library materials, like copyright issues? If so, they have agreed upon use. No one is forcing them to read the material.
An interesting essay. It makes a statement that Intellectual Property rights are a 'monopoly priviledge granted by the government.' (Assuming for the sake of argument that monopolies are inherently bad things, and that governments can actually grant priviledges -- more accurately, the government restricts others.) If one believes that IP exists wholly as a government illusion, very well.
I am not sure I rather agree with the argument that information is universal. If everyone knew everything, we would not be in this situation, would we? Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones. If creation is merely a process of discovering bitstreams/numbers, there is still an element of effort in that process -- if everyone could create (not the same as duplicate) any piece of IP trivially, then this would also not be an issue, but not everyone can. As far as the statement of "You cannot own information without owning other people." goes, that is rather stretching things. If I were to own a piece of IP, say, a piece of music, does this automatically give me total control over everyone who hears it? Ridiculous. Depending on the IP right stance taken, though, it might credit to me control over what they do with the IP they have received from me -- which is not the same thing as owning them completely.
I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.
If a person pays money for a piece of music, writing, video, etc. that is marked "copyrighted" than that should be regarded as an implicit agreement, an implicit contract, to abide by the copyright laws. If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! One may try to pursuade others to not use or make copyrighted material, or argue against the concept. It may very well be that IP rights are not 'rights' (i.e. inherent and/or universal,) but even if so, they are trivially fashioned out of mutual agreement between consenting parties, existing as a social construct, perhaps as a legal contract construct -- the only way to not have IP is to prevent people from making agreements between each other! The tyrrany that would prevent individuals or groups from doing such would be a sight to see indeed.
One may claim that if I have thought of a piece of IP, then I should not restrict distribution of it, as it is a universal (sic) thing. Fine -- you think of it for yourself then, if it universal -- you do not need someone else to tell you what you already know.
(Note the above does not touch on patents, just copyright. Patents are not justified by the above as there is no implied contract between two simultaneous independent creators, or independent duplication.)
I disagree. I can access copyrighted material without any commerical relationship with the author -- by checking a book out of a public library, for example. Intellectual property rights, like all property rights, are a creation of societies and governments, and our current conceptions about property rights are very different from those of a few centuries ago.
Ideas about property rights have evolved to adapt to changing social, political and economic circumstances, and they will change again.
Arguably, hearing music infers a lot with respect to what one can and cannot do with it. I won't argue (at least here) that it infers that one can do anything with it, but people are not capable of complying with a demand to do nothing with it. Thus, a witness to copyrighted material (such as someone hearing a song) must be allowed to have some rights over that material. Denying those rights will succeed as well as repealing gravity; it is not that people will not comply, but that they cannot.
When a person receives information (such as hearing a song), they assimilate that information just like they assimilate breakfast. It becomes an inseperable part of them.
Such a relationship is at least ownership. Either I own my mind and body, or I have a stronger relationship with my mind and body. Any law that denies this natural fact is as bogus as a repeal of gravity.
Once I hear a song, I have it. Nothing short of disease or death will make me forget the first bars of "Money for Nothing". I will not comply with any law requiring me to forget it, because I cannot choose to forget it any more than I can flap my arms and fly.
I own...or, if you prefer, I include...terabytes of copyrighted material. I cannot separate them from myself. If I could and did, I would still be a viable human being, but would barely be recognizable as who I am today. I would certainly not be able to hold down any engineering position; removal of all the engineering savvy I learned from books would leave gaping holes in my head.
In a very real sense, hearing (or otherwise witnessing) copyrighted materials irrevocably changes the person. If you deny someone all rights to information they know (and this is not done in copyright law, you deny them the ability to use their own natural capabilities. You can deny them certain rights, but not all. You can't even deny all but certain rights, simply because we don't even understand all the ways that we use information.
One must grant all rights by default and deny certain rights by law. This is simply the nature of one's control over one's self. One cannot deny an innate capability (such as stomping one's foot) by default, but can deny particular capabilities (such as stomping one's foot on somebody else's face).
Merely hearing a song or reading a book makes the information therein an integral part of your being. I've never seen a law that would deny all rights to that information, only limited rights to it. Any law that denies all rights to it is delusionary--one may as well redefine Pi.
I think that we're agreeing, then. I was not arguing for the right to copy said music (or book, or whatever). I was arguing that one has to have some rights over using the copy of that material in your own head. The right to influence is required, but the right to copyright outright is not required by my arguments.
Of course, then it's up to the lawyers to draw the line between influence and outright copying. After hearing "Money for Nothing", I can write another song about the rich life of a rock star (that's influence), but I can't just cover the song without clearing it with Dire Straits' label (that's outright copying). Writing a song with the line "I want my MTV" blurs the line a bit (doubly so; did MTV have a trademark on that tagline?). Unfortunately, law often has to deal with these fuzzy logic situations...
I've never really flamed before... and admittedly, the subject for this message is a bit harsh... but still.
The arguments he made... especially in the "ethical" section were poorly formulated, and lacked a basic understading of the bases of intellectual property.
The author opined that if he purchased a book, then he should have rights to reproduce and trade that work, because flow of information and knowledge cannot ethically be stopped. He missed the point that copyright does not affect free flow of knowledge, but of a specific adaptation of that knowledge. (e.g., If you buy a book full of telephone numbers and addresses, you cannot simply copy and sell that book, because it would be a violation of copyright. Not because the telephone numbers and addresses are copyrightable, but that specific organization of those phone numbers and addreses are. Thus you are allowed to sell lists of that information, just not in the same format or using the same method of organization.)
Again, the author opined that if he memorized a poem, and reproduced it from his memory with his own pen and paper, he should be able to publish and sell it. This is also absurd, where did he memorize the poem from? How would he have created it had the original poem not been published.. this is, of course, not his work.
Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts.
Again, with his preposterous sabre tooth tiger argument, patent law does not prevent an individual from building a patented device for his own personal use (like to levitate him out of the pit to save his life), it does however prevent a corporation from taking an years of research from someone who came up with a patented device, mass producing it, and using for its own profitable enterprise without a penny of gratutde to the researcher.
As for the examples given of Bach and shakespeare, there is the fair use doctrine. Shakespeare did not callously steal the story of romeo and juliet verbatim from the original author, he did however make fair use of the a general plot line and wrote his own prose to tell this story. This goes back to the idea of it's not the information that is copyrightable, but the adaptation of the information.
I've ranted long enough, I personally am against a lot of ip, I think software patents are stupid (for reasons I will not go into) and I think many corporations have taken patent law and copyright law a bit too far... but this article left me feeling like I wasted my time reading it, and although I spent more time than I should replying to it, maybe I'll save other peoples precious time by telling them not to bother with it.
-- "BadTimes will make you fall in love with a penguin" - Laika
Ah, but there is a difference!
by
Merk
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· Score: 2
Say I see a cool logo on Joe Blow's web page. If I decide to put it on my web page, I can be nailed for copyright violation.
But if copyright law didn't exist it would be different. I could not be nailed for taking the image because I never signed a contract or in any other way promised I wouldn't take the image.
To make this analogy closer to the book metaphor, imagine Joe Blow bought the book and signed the contract saying he wouldn't distribute the book. Then say without his permission I photocopy the book. He didn't distribute the book and I now have a copy. I never signed any contract so the author can't legally do anything to punish/stop me. But if copyrights existed I could be nailed.
The difference between copyrights and contracts is that you have no choice to "accept a copyright", but you have a choice to accept or reject a contract. If you have never signed a contract saying you won't do something then you can't be nailed for doing that thing.
To me that's the one of the real important issues with copyrights (and many other things), they're rules you're forced to obey without ever having agreed to obey them.
I'm surprised that I haven't seen anyone mention the importance of distinguishing between the right to produce verbatim copies and the right to produce derivative works.
In short, I think "fair use" should be greatly extended, beyond the needs of reviewers and parody-writers to all derivative works.
Fanfic is copyright violation, but darkfic (extremely twisted parody) is not. Similarly, pornographers freely trample the wholesome images of family entertainment while honest artists are prevented from writing tasteful side-stories relating to events and characters which have become cultural icons. I once came across a parody of The Hobbit which was the most pathetic piece of literary tripe I've ever had the misfortune to glance at, but one of the most beatiful works of animation ever produced is incomplete despite the approval of the copyright owner (because of earlier contracts signed which were only possible due to the excessive powers given to the copyright holder; "enough rope to hang yourself").
Currently, copyright law discourages valid creative, though derivative, works which increase "mindshare" and thus marketability of the original work, and encourages unpleasant mockeries which are used as cheap hooks to attract buyers and reduce the value of the works they are derived from.
I would much rather see a general requirement for products to be labeled "unauthorized derivitive work of X." This would make it clear what is canonical to the storyline, and what is Joe X's take on the story.
Also, the specific exception of parody is not adequate to allow the creation of works that would otherwise never have permission granted (incidentally, I've heard more than one author praise a well-executed parody of his own work). Parody is not the only way to challenge the ideas set in a story. An unauthorized sequel might be the best way to express disagreement over the long-term consequences of the actions of the hero.
As a scientist, I can't let this pass without comment.
I think the important thing that the author has not done is consider the benefits of property laws. The key here is that without some kind of regulation on intellectual property, no one is going to want to share!!
The author gives the example of a levitation device which could prevent you from being eaten by tigers. He gives the scenario that you have learned about the device at a seminar he gave, but can not build the device to save yourself since he has a patent. There are some problems with this argument:
First, and most importantly, in the absence of patent laws, he, being a stingy bastard, would not have ever given a seminar. More likely, he would hoard his information.
Second, there is a reason that the death penalty does not apply to patent law violations. Under the circumstances where violating a patent law would save your life, I would hope you'd be clever enough to value your life over the fines you may be charged.
Third, suppose you made a levitation device and saved your own life, then quickly destroyed that device. It is not likely that even a stingy bastard would go to the trouble of taking you to court, and, if he did, not likely that a jury would choose a large penalty. Even if the laws are not perfect, our legal system is developed so that every case can be considered individually.
My conclusion? Considered only in and of themselves, patent laws can easily be made out to be un-constitutional. To understand why they are necessary and fair, one must be willing to pursue the concept deeper than the surface that this article skims.
-- --
First post (by a female living in a state that begins with M and does not end in a vowel with a birthday that falls
>Considered only in and of themselves, patent laws can easily be made out to be un-constitutional
Unlikely, since Article I, Section 8 of the constitution expressly provides that Congress may pass a patent act. The present Patent Act is not substantively different (albeit there are many procedural differences) in any constitutional regard than the one drafted by Thomas Jefferson in the first Congress.
Relevancy to GPL/FSF/OpenSource/etc.
by
fluffhead
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· Score: 3
This seems like an excellent article to read, even if you are not a dyed-in-the-wool libertarian. Interestingly, it was apparently published in Autumn 1995, long before the current media splash. I especially enjoyed the author's explanation of why the gap in the Tolkien movies exists (I always wondered before why Bakshi didn't finish the whole LoTR series).
One might extend the basic argument against copyright and patent further in the Linux/*BSD/FSF/OSS sphere. ESR's essay on OSS development as a type of bragging rights competition or "gift culture" (at http://www.tuxedo.org/~esr/writings/homesteading/h omesteading.html comes to mind as an example. The basic tenet is that voluntary cooperation, in both the positive (contributions of code, etc.) and negative (boycotts of those who break the rules, anti-MS sentiment, etc.) senses, is the real basis for much of this phenomenon, as opposed to formal legalisms like those contained in the GPL. Although I certainly don't intend to slight RMS and the FSF for its attempts to use copyright law against itself, in order to formalize the hacker ethic. Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance.
P.S. IAAL (I am a Lawyer) but I don't practice - I still have my Texas bar card though. (Sysadmin work has been more fun/sane, plentiful, and almost as lucrative). Thus the following disclaimers apply:
Not Board Certified by the Texas Board of Legal Specialization. This is not intended as creating a lawyer-client relationship or providing any form of legal advice.
#include "disclaim.h"
--
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
Re:May Be Stronger Libertarian Case FOR IP
by
werdna
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· Score: 2
Aaron's points are salient, if one takes the view that an interest in property is predicated solely on the ethical predicate of possessing the fruit of one's labor. Of course, this is not the entire story, even among libertarian philosophers.
I profess no great expertise in this area of philosophy, and so I shall defer to others to articulate best the philosophical opposition, and to state more perspicaciously Ms. Rand's point of view. (I think merely dismissing her arguments on the grounds that she owned the rights really begs the question and amounts to ad hominem argument; indeed, even this naive amateur philosopher sees that the libertarian "fruit of labor" argument seems far stronger for IP than, say, for land.)
No, my foundational understanding of the justification of property rights is a more practical, economic, argument. It is simply this, if I can own property, then I am more likely to care for it so that it produces well, or at least to sell it to someone else who values it more. Accordingly, the property will find its ways (in an aggregate sense) into the hands of those who value it most, which is to the overall benefit of society.
Of course, the preceding is an overly simplified version of the argument. I merely wanted to identify the point of view for the purposes of the following, rather than to defend it per se.
In adopting this, I don't disagree with Aaron -- the INITIAL ALLOCATION of property does tend to be inequitable in some sense -- giving property to folks based solely upon conquest and the like. The thesis is that this initial allocation is irrelevant to the workability of the property system -- however initial allocations work out, the eventual reallocations that result from free market interaction will reach pareto-optimal levels in due course. There will be local inefficiencies, but the overall system will result in greater aggregate wealth. This is, IMHO, a good thing.
Moreover, this is not inconsistent with what Long calls the "ethical" argument, IMHO. Copyright law, for example, gives you the right to own the fruit of your labor, subject to your freedom to assign it to others. Likewise patents and trademarks. If you work your land, you will likewise own the fruits of that work.
Without the right to exclude, however, others can trample on or hoard the resources necessary for you to work the land; and without the right to exclude, your works may be used indefinitely by others without your having benefitted thereby. The latter isn't an ethical argument, but tracks back to the principles laid out in the Constitution, that an incentive is necessary to promote the "Sciences (read -- skills to write works of authorship) and the useful Arts (read -- skills to invent)." Whether or not you have the incentive, absent that right to exclude, the capital necessary to make it possible for you to feed your family while inventing and/or creating will have to come from your other labors and efforts, thereby depriving you of those fruits.
It's not PC here to say so, but there it is.
Re:May Be Stronger Libertarian Case FOR IP
by
werdna
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· Score: 2
With all due respect, I disagree with the proposition "Many people desire . . .." While some may leave pieces of land disused "for speculative purposes," few do when another person is interested in buying at a responsible price. (Of course, there is a corresponding -- but pervasive -- problem that arises from having no propery rights -- the tragedy of the commons).
More important, I never said that every piece of land is placed in position that is optimal for society -- I said that aggregately, the land is placed in the hands of those who value it most. If a person considers that the land has value in the future far outweighing the value of its present production, and that it would diminish the value of that land in the interim to use the land's production near-term; with noone feeling that they can make greater use of the land and hence be willing to pay more, who is to say that society has not benefitted by not using the land?
For example, a farmer may rationally leave land fallow for a period of time to avoid overusing it, so that aggregately more bounty is produced by the land over time. Is that detrimental to society?
In short, as between any individual or committee's view of the virtues of what should be done with the land, or the overall impact of the market decision, I favor the latter. Yes, there will be examples of stupid people with more dollars than cents doing stupid things with particular assets. But as a whole, it appears to me that society is better served by allowing the market to work. (It also appears to me far closer to the libertarian ideals than the proposition of abandoning property rights entirely.)
Re:May Be Stronger Libertarian Case FOR IP
by
werdna
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· Score: 2
Larry makes good points. It is important at the outset of these disputes to note that there are no clear answers -- that the truth is far more interesting than any of our speculations. However, on some of his remarks, I dissent.
1. IP not a scarce resource NOT!.
Granted that once created, IP can be freely and inexpensively duplicated. However, this does not mean, IMHO, that IP is not a scarce resource. Until created, IP does not exist. And it need not exist unless those who would create it have an incentive or reason for doing so -- as well as the resources to do it.
Money makes this happen. Money for houses, money for food, money for beer. Money for computers, money for research materials and for education. Companies won't invest in IP if they can free-ride off of others and others can free-ride off of them -- for the simple reason that it makes sense to wait, and spend the money on marketing to out-market the bejesus out of those who did the making. hence they won't invest in scientists who invent, and inventors will create or not, depending upon their wont, for the good of the creation only.
Perhaps a few rare kings will patronize the best minds, the Bachs, the Mozarts, the Beethovens. And then we will have the art that those kings like best. It will be good, but it will suit the needs of the kings. Perhaps.
And perhaps a few things will be made for the sheer glory of it.
Perhaps not.
This is because innovation and creativity is scarce. And becuause absent IP, inventors and innovators have an incentive to hoard their great ideas -- relying, where possible on secrets.
And the great writers will, yick!, go to law school so they can make a living.
Understood that once created, copying is possible. That is not the point of property. It is to allocate resources where they are desired most. And one of those resources are the time and minds of our best and brightest. I want them thinking about brilliant invention and the fame and wealth they might obtain -- I want them aspiring to be brilliant innovators. I don't want them studying case law in a law library.
Inventions and copyrighted works aren't the scarce resource, innovators and authors of works are the scarce resources. IP is how we reward them, for the benefit of society.
2. Free beer and open movies -- TANSTAFFL.
Larry says that there will be an open source version of star wars. That a cadre of artisans and musicians and actors and model-makers will, for the love of it, make the film just so we all can watch the credits at the end. They will reach into their pockets (or some patron will) to pay $100M up front just to make it happen.
I dissent, finding it incredible that the dollars and resources necessary to bring the whole thing together would ever happen absent the ability to recover and make a profit on that investment. More than brainpower and innovation is necessary -- so is capital.
And between your great story idea and mine, how will that cadre of artisans decide? Will we be destined to see nothing but low budget art films for the rest of our life, or is Larry right, nothing would change except for the better?
Each of us can judge for themselves -- just be realistic in arriving at your own conclusions.
Between you and me, the same argument made against IP in part 1 above, with which I don't agree, but for the reasons stated I believe misses the point, explains in large part why a Linux might happen, without demonstrating that a Star Wars can: Linux didn't require the AGGREGATION at once of real and meaningful capital to create. Don't get me wrong. Linux is great. But its only what it is, and its existence does not to me prove the possibility of a spontaneously created Star Wars trilogy.
Re:Clear thinking and argument
by
werdna
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· Score: 2
Perhaps this is because he expressly criticizes the views of Hayek and Rand on this matter?
Re:Intellectual-Property Patents
by
werdna
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· Score: 2
By "quite a few," I presume Mr. Harlan means the three (3) that patents that bear your name. Were there more that I missed? Fair enough, but one might have been led to think there were many more.
With all due regard, these characterizations of the process are inconsistent with my experience. It is true that first office actions routinely reject all the claims, and that a fair percentage of patents are granted on the second office action. Mr. Harlan's explanations for these reasons are overstated or wrong.
Mr. Harlan is incorrect that "the burden of proof is on the defender." Mr. Harlan is quite incorrect that the USPTO "simply scans for keywords" in patents, or that they do not search literature. I frequently find non-patent prior art in initial office actions. It *is*, however, the case that the USPTO does lean heavily on patent prior art, doing less search of literature. There are many reasons for limiting the scope of the novelty search to less than a comprehensive search of all prior art, however -- mostly related to the impossibility of conducting a comprehensive search and more importantly, to keeping the cost of a patent examination within the means of individuals.
The statement, "At no time is your patent read by someone who understands it," is outrageous and untrue. It does happen, I suppose, from time to time, but rarely will an examiner pass upon an application before comprehending the nature of the subject matter (s)he is examining.
Also misstated are the standards during an infringement action. A plaintiff must prove owernship and infringement by a preponderance of the evidence, or collect nothing, even if the patent is found to be valid. It is true that the validity of the patent is presumed unless the defendant has made a very substantial showing.
'75 and '76 patents expired in '92 and '93
by
werdna
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· Score: 2
Noone else worked on them during that time because they didn't work out so well. So weak were they that Mazda itself abandoned the technology. Everyone else was in a position to develop the technology further, and to attempt a cross-license, but noone bothered. (That happens often in markets, witness the chip marketplace).
I think that forces other than the patent act let to the demise of the everlastingly cute, and undeniably innovative, but commercially unimportant Wankel engine.
> Of all the nations in the world, the US stands alone in permitting software algorithms to be patented.
This is not the case.
Re:Intellectual-Property Patents
by
werdna
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· Score: 2
I am truly sorry if the response was painful. I hope that you found it at least interesting.
It is difficult, if not impossible, to respond meaningfully to the general hypotheticals you gave without more detail. Suffice it to say that I have defended against patents that I found to be overbroad and invalid, winning some and losing some. I have also had to defend some patents that issued because of less than vigilant defense of the system by the examiner. No system is perfect, but ours works pretty well, IMHO.
As to the benefit in your case -- Conopco hired you to do the research. It paid for your salary. If it couldn't own, to some extent, the fruits of that work, it might not have hired you at all, or might have paid much less -- finding the better business decision to be to let the other guy hire you and benefit by free-riding. (Problem is, the other guy is thinking the same thing).
Perhaps Stanford is better able to provide you with the facilities you provide because of the revenues it derived from licensing?
I do think, however, that the scope of patents you describe is somewhat different from the scope of patents in my experience. On one hand, you seem to suggest that the use of mathematics is precluded. Not so, although the use of a particular formula in order to create a tangible and meaningful result via an apparatus might be. Then, you express concern that a patent for a particular apparatus might cover an entire application area. This would be extraordinary, particularly under present federal circuit law, but not impossible. Even if this were so, the concern you seem to have expressed is that your colleague misrepresented to you the scope of his or her claims, not that the claims are too large.
Please do not forget, the benefit and purpose of the system *is* to provide a meaningful right to exclude. It is also the cost of the system. Depending which side you are on, you might have a different subjective view as to its benefits, but the theory and argument is that society benefits even though you might not.
The balancing of these interests is, well, where the meat of the matter lies. The truth is therefore, far more interesting than the simple conclusions stated by either of us.
I think you unfairly demonize patents, patent attorneys and examiners. The system is far fairer and more straightforward than you suggest. It is also imperfect and could benefit substantially from improvement. Although many engineers and scientists bristle at the system, it is the reason many have their jobs in the first place and, without it, much of what we do as scientists and, particularly as engineers, would be financially unsupportable.
It is also possible that you yourself might derive no benefit whatsoever from the system, but that the system is nevertheless a good thing for society as a whole. Society is like that.
There are many costs, yes. There are also many benefits. These must be balanced in the aggregate and viewed from a societal standpoint to arrive at a fair assessment of whether the system does good or evil.
May Be Stronger Libertarian Case FOR IP
by
werdna
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· Score: 4
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Copyrights and Contract Law
by
AmJur2d
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· Score: 3
Right now, if you infringe a copyright, you are subject to damages in tort, which (since infringement is generally an intentional tort) consists of all damages to the copyright holder which flow from your infringing activities. The law also allows statutory and punitive damages, as well as an award for fees and costs.
Suppose, however, in the absence of copyright, you sold your book to Joe Infringer with a restrictive contract that mirrors the current statutory rights of copyright law, and Joe Infringer breaches the contractual duty. You can sue him for your "expectation interest" in the contract: what you stood to gain by Joe's compliance with the contract terms. You cannot get any sort of punitive damages; Anglo-American law does not punish contract-breachers. The recovery will probably be less than what is currently available under the current statutory copyright law, and might be a lot less if the court elected to refuse to allow expectation interest and only gave reliance interest (which it might, because expectation interest is going to be highly speculative, and people will probably flinch at buying a book if the book purchase contract specified liquidated damages in the six figures for breach).
There is, however, a far more difficult problem: a legal concept called privity. When I sell you a thing, and place restrictions on your use of it, I am creating a contract with you. We are in privity of contract, and are mutually bound to abide by that contract. Now, suppose you then later sell that thing to someone else. Is the person you sell it to bound by our original contract? The answer, under contract law, is no; he and I are not in privity of contract. The answer under property law is more complex: If the original contract forms what is called a covenant than he and I may be in privity of estate, and the covenant might run to him. However, covenants are generally only applied to interests in real property; I am not aware of any application of covenants to personal (or intangible) property (although I haven't looked very hard).
Suppose, to get around this sticky problem, I put in a clause that you can't sell the book at all. This is called a restriction on alienation. For real property, the courts generally do not allow restrictions on alienation; if the court does the same in personal property, then you can't do this either. However, some restrictions on alienation are permissible, and a restriction that requires that you bind your buyer to the same contract terms that I bound you to might be permissible. Only a court can answer that question (this is all common law doctrine). Even so, in the case where you do transfer the book without meeting my conditions, we still have a problem with remedy; can I have the court rescind your sale, or do I merely get damages? Can I get an injunction against the your third-party purchaser to prevent him from making copies, even though he has no duty to not do so? What if he's already made copies? I could probably sue YOU for that, even if I can't sue him....
Another problem would deal with theft; if someone steals your copy and then makes copies en masse, who do I sue? You? Was it your fault that it was stolen? Do I sue you and let you bring in the thief as a third-party defendant on a derivative liability theory?
What about if you merely lose the book, or abandon it? Would you like to be potentially liable to a publisher for millions of dollars of damages because you left your copy of Virtual Light on the bus by accident? Hell, anyone who buys a book will have to buy "bookowner's insurance" too.
Of course, we'd end up passing legislation to prevent these problems. And that legislation would probably end up looking a whole hell of a lot like copyright law. Fancy that.
Few people think that out current IP laws couldn't using some tuning, but this article was way off.
1) You cannot patent laws of nature. You can patent inventions, not discoveries. Newton couldn't patent gravity, but he could patent an invention that takes advantage of his discovery.
2) Tiger's wouldn't eat you, because you could build a levitation device. You just wouldn't be able to use it for a profit or in compatition to the inventors levitation device.
3) Patent do not stop the transfer of information, the facilitate it because they make a ready source of information about inventions. If Mr. X patents a mousetrap, you can patent the mousetrap widget that makes Mr. X's mousetrap better. The "problem" is that you cannot patent the mousetrap-widget combo for an arbitrary period of time.
This is a problem for people who want to expand on previous ideas, but it also protects the labor and work of the originator--not forever, just for a while, and maybe that time unit needs to be reviewed.
Slashdot Mirror
Imagine a world without copyrights.
There's still contract law, though: two people can contract to do anything legal. If I've written some interesting book and I'd like money for it, and I don't have copyright law to back me up, I'll just offer a contract: for $6, you can buy a copy of the book, with the stipulation that you're not allowed to give/sell a copy of the information to anyone else (unless, in the process, you get rid of the copy of the information that you've bought).
You could own the physical book, and it could sit on your shelf, but you wouldn't own the information inside of it; not in the sense of being able to do with it as you please.
So eliminating copyright law doesn't do anything; it just changes the way in which I make a profit from information I've produced.
Copyright law is better. Yeah, the length increases are just an abuse, but the copyrights *do* expire after a time, they're simpler than having to draw up contracts all the time, and the way in which everything's handled is relatively uniform; I'd hate to have to deal with a different license per work.
I cannot imagine why writers continue to question the need for IP in modern society. The fact is that IP is absolutely essential for the progress of technology. Do you think that Merck is going to invest several billion dollars per year into the development of new drugs without the assurance that they will have the ability to recoup their investment? Drugs are highly expensive to develop, but relatively cheap to manufacture. This is true of much of technology today. The idea of a lone inventor working in a garage coming up with an important boon to society is a really rare exception today. Real R&D costs big time, and companies will not pay for it if they cannot have some sort of assurance that it will benefit thier bottom line.
Not to mention the issue of 'trade secrets'. The authors of this article fail completely to examine the contract between the inventor and government that patents represent. The concept of patent in modern law is simple - it is a contract between the government and the inventor. This contract gives that inventor exclusive rights for a period of time for commercial rights for a product. In return the inventor fully discloses the nature of his invention, that is makes his knowledge available to all. WITHOUT PATENTS INVENTORS DO EVERYTHING POSSIBLE TO KEEP THEIR INVENTION SECRET. History is full of examples of this, and it is proven the lack of this dissemination of knowedge slows the rate of progress in a modern society.
Certainly, with any law or set of laws there are negative affects as well. But the simple fact of the matter is that IP laws are a long-proven spur to the development of technology that improves the quality of life of all mankind.
Ah, yes. Scientists never shared information before patents. All those mathematics journals and mathematics conferences dealing with non-patentable material are an illusion. Prior to the introduction of copyright law during the Enlightenment, no scientific progress occurred. Obviously the great Greek literature and scientific writings must have been forged.
Your blanket assertion that "no one is going to want to share" without intellectual property is ludicrous. What are you a scientist of?
The leading quote by Hayek points out one of the problems with people like Rand. Namely, she made her money via royalties on copyright and so has a vested interest in the current system.
BTW: I'd like to point out that there are people (including libertarians) who object to the current scheme of private property in land as well. (I'm one of them, though not a libertarian). Libertarian notions of property are based on people have the rights to the fruits of their own labor. Land, however, is not the fruit of anyone's labor. Nobody created the land. It is the free gift of nature. In practice, virtually all land title derive from conquest and arbitrary territorial claims resting on no clear legal or ethical principle.
Pareto optimal only means there is no way to make someone better off without making someone else worse off. 100% to me and 0% to you is pareto optimal.
It's not my intention to present the definitive argument against absolute property rights in land. What I will say is that property is a bundle of rights and that those rights can be unbundled. Someone can have exclusive possession of land without having absolute ownership rights (as we currently definte them) over it.
While the current system might put land in the hands of people who are willing to pay the most money for it, that does not actually mean society is better off as a result. Many people desire to hold land for speculative purposes rather than putting it to productive use. Many very valuable (and potentially useful) pieces of land in vacant for this very reason.
By "information is a universal" the author does not mean that information is everywhere. This use of the term "universal" is a slightly obscure philosophical use. A better word for the same thing might be "an abstraction" -- something which is not concrete and physical, but abstract and mental.
A piece of information, considered apart from the medium upon which it is recorded, is an abstraction. That's what copyright is granted for. However, by definition, abstractions don't exist in the physical world -- and unless, as the author says, we accept Platonic Formalism, they don't exist at all, any more than perfect circles do.
If you accept the Constitution's argument, then copyright (in the U.S.) is not founded on a "natural right" but rather on what is known as a consequentialist argument. That is, the Constitution does not say "Copyright is granted because it is a natural right of authors to control their works" but rather "Copyright is granted for the purpose of promoting progress."
Given this argument, one can then argue that copyright and patent are only justified insofar as it actually does promote progress, and that in those cases where it inhibits progress, they are not Constitutionally justified.
Hence, if it could be proven in court that a particular granting of patent or copyright was inhibiting progress in the relevant field, it would not be unreasonable to overturn the patent or copyright, simply on the grounds of not being Constitutionally justified.
(Note that this assumes strict Constitutional constructionism, aka strict enumeration of powers -- the doctrine that the Constitution specifies the powers of the Federal government, and that the government has no legitimate powers which are not expressly granted to it. The last strict constructionist on the Supreme Court was Justice Hugo Black, many years ago, who actually had the daring to say that when the Constitution says "Congress shall make no law..." it actually means NO LAW.)
Is there an ethical relationship, however? Beyond that, when one checks out that book, and the first thing listed inside the cover is the copyright notice, does one ignore it, agree with it, or return the book to the library unread? Most libraries I have seen have nice, big signs over their copiers reminding people of copyright issues and fair use. Out of curiosity, when one receives their library card or access, did it come with a list of rules of use of library materials, like copyright issues? If so, they have agreed upon use. No one is forcing them to read the material.
An interesting essay. It makes a statement that Intellectual Property rights are a 'monopoly priviledge granted by the government.' (Assuming for the sake of argument that monopolies are inherently bad things, and that governments can actually grant priviledges -- more accurately, the government restricts others.) If one believes that IP exists wholly as a government illusion, very well.
I am not sure I rather agree with the argument that information is universal. If everyone knew everything, we would not be in this situation, would we? Even if we make the assumption as given in the previous essay mentioned "Anarchism Triumphant", that all information can be reduced to some indefinitely long bitstream (i.e. just a number) there are far more uninteresting numbers than there are interesting ones. If creation is merely a process of discovering bitstreams/numbers, there is still an element of effort in that process -- if everyone could create (not the same as duplicate) any piece of IP trivially, then this would also not be an issue, but not everyone can. As far as the statement of "You cannot own information without owning other people." goes, that is rather stretching things. If I were to own a piece of IP, say, a piece of music, does this automatically give me total control over everyone who hears it? Ridiculous. Depending on the IP right stance taken, though, it might credit to me control over what they do with the IP they have received from me -- which is not the same thing as owning them completely.
I would argue that IP rights exist ultimately as an agreement between parties. As long as I have a right to NOT produce or communicate the ideas I have come up with, as long as I have some right to privacy, then I can choose when and to whom I speak to -- if I speak my mind to one person, that does not require me to speak to all! If I offer to a second party, "I will tell you of the IP I have thought of, if and only if you give your word you will not repeat or reproduce it to any one else without my explicit permission," that is the creation of IP rights in essence. The second party may choose to refuse to accept the conditions of the transaction, but should the second part accept, then they are bound ethically to respect the my IP rights as I have claimed them. If the second party breaks their word, then that is reprehensible -- if transaction was made as a legal contract, enforceable.
If a person pays money for a piece of music, writing, video, etc. that is marked "copyrighted" than that should be regarded as an implicit agreement, an implicit contract, to abide by the copyright laws. If one does not believe in IP rights, then one should, ethically, not purchase or use any copyrighted material! One may try to pursuade others to not use or make copyrighted material, or argue against the concept. It may very well be that IP rights are not 'rights' (i.e. inherent and/or universal,) but even if so, they are trivially fashioned out of mutual agreement between consenting parties, existing as a social construct, perhaps as a legal contract construct -- the only way to not have IP is to prevent people from making agreements between each other! The tyrrany that would prevent individuals or groups from doing such would be a sight to see indeed.
One may claim that if I have thought of a piece of IP, then I should not restrict distribution of it, as it is a universal (sic) thing. Fine -- you think of it for yourself then, if it universal -- you do not need someone else to tell you what you already know.
(Note the above does not touch on patents, just copyright. Patents are not justified by the above as there is no implied contract between two simultaneous independent creators, or independent duplication.)
I've never really flamed before... and admittedly, the subject for this message is a bit harsh... but still.
- --
The arguments he made... especially in the "ethical" section were poorly formulated, and lacked a basic understading of the bases of intellectual property.
The author opined that if he purchased a book, then he should have rights to reproduce and trade that work, because flow of information and knowledge cannot ethically be stopped. He missed the point that copyright does not affect free flow of knowledge, but of a specific adaptation of that knowledge. (e.g., If you buy a book full of telephone numbers and addresses, you cannot simply copy and sell that book, because it would be a violation of copyright. Not because the telephone numbers and addresses are copyrightable, but that specific organization of those phone numbers and addreses are. Thus you are allowed to sell lists of that information, just not in the same format or using the same method of organization.)
Again, the author opined that if he memorized a poem, and reproduced it from his memory with his own pen and paper, he should be able to publish and sell it. This is also absurd, where did he memorize the poem from? How would he have created it had the original poem not been published.. this is, of course, not his work.
Then moving on to patents. How can you own a law of nature. Similar to copyright, it is not the law of nature that is patented, but a specific adaptation of that law of nature. Of course, noone can patent the law of gravity, or the law of inertia, but you can patent a specific method of utilizing these laws to create a self-winding watch. This is analogous to not being able to copyright information or facts, but you are able to copyright a certain adaption of those facts.
Again, with his preposterous sabre tooth tiger argument, patent law does not prevent an individual from building a patented device for his own personal use (like to levitate him out of the pit to save his life), it does however prevent a corporation from taking an years of research from someone who came up with a patented device, mass producing it, and using for its own profitable enterprise without a penny of gratutde to the researcher.
As for the examples given of Bach and shakespeare, there is the fair use doctrine. Shakespeare did not callously steal the story of romeo and juliet verbatim from the original author, he did however make fair use of the a general plot line and wrote his own prose to tell this story. This goes back to the idea of it's not the information that is copyrightable, but the adaptation of the information.
I've ranted long enough, I personally am against a lot of ip, I think software patents are stupid (for reasons I will not go into) and I think many corporations have taken patent law and copyright law a bit too far... but this article left me feeling like I wasted my time reading it, and although I spent more time than I should replying to it, maybe I'll save other peoples precious time by telling them not to bother with it.
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"BadTimes will make you fall in love with a penguin" - Laika
Say I see a cool logo on Joe Blow's web page. If I decide to put it on my web page, I can be nailed for copyright violation.
But if copyright law didn't exist it would be different. I could not be nailed for taking the image because I never signed a contract or in any other way promised I wouldn't take the image.
To make this analogy closer to the book metaphor, imagine Joe Blow bought the book and signed the contract saying he wouldn't distribute the book. Then say without his permission I photocopy the book. He didn't distribute the book and I now have a copy. I never signed any contract so the author can't legally do anything to punish/stop me. But if copyrights existed I could be nailed.
The difference between copyrights and contracts is that you have no choice to "accept a copyright", but you have a choice to accept or reject a contract. If you have never signed a contract saying you won't do something then you can't be nailed for doing that thing.
To me that's the one of the real important issues with copyrights (and many other things), they're rules you're forced to obey without ever having agreed to obey them.
(note: this only concerns copyright)
I'm surprised that I haven't seen anyone mention the importance of distinguishing between the right to produce verbatim copies and the right to produce derivative works.
In short, I think "fair use" should be greatly extended, beyond the needs of reviewers and parody-writers to all derivative works.
Fanfic is copyright violation, but darkfic (extremely twisted parody) is not. Similarly, pornographers freely trample the wholesome images of family entertainment while honest artists are prevented from writing tasteful side-stories relating to events and characters which have become cultural icons. I once came across a parody of The Hobbit which was the most pathetic piece of literary tripe I've ever had the misfortune to glance at, but one of the most beatiful works of animation ever produced is incomplete despite the approval of the copyright owner (because of earlier contracts signed which were only possible due to the excessive powers given to the copyright holder; "enough rope to hang yourself").
Currently, copyright law discourages valid creative, though derivative, works which increase "mindshare" and thus marketability of the original work, and encourages unpleasant mockeries which are used as cheap hooks to attract buyers and reduce the value of the works they are derived from.
I would much rather see a general requirement for products to be labeled "unauthorized derivitive work of X." This would make it clear what is canonical to the storyline, and what is Joe X's take on the story.
Also, the specific exception of parody is not adequate to allow the creation of works that would otherwise never have permission granted (incidentally, I've heard more than one author praise a well-executed parody of his own work). Parody is not the only way to challenge the ideas set in a story. An unauthorized sequel might be the best way to express disagreement over the long-term consequences of the actions of the hero.
I think the important thing that the author has not done is consider the benefits of property laws. The key here is that without some kind of regulation on intellectual property, no one is going to want to share!!
The author gives the example of a levitation device which could prevent you from being eaten by tigers. He gives the scenario that you have learned about the device at a seminar he gave, but can not build the device to save yourself since he has a patent. There are some problems with this argument:
My conclusion? Considered only in and of themselves, patent laws can easily be made out to be un-constitutional. To understand why they are necessary and fair, one must be willing to pursue the concept deeper than the surface that this article skims.
-- First post (by a female living in a state that begins with M and does not end in a vowel with a birthday that falls
This seems like an excellent article to read, even if you are not a dyed-in-the-wool libertarian. Interestingly, it was apparently published in Autumn 1995, long before the current media splash. I especially enjoyed the author's explanation of why the gap in the Tolkien movies exists (I always wondered before why Bakshi didn't finish the whole LoTR series).
h omesteading.html comes to mind as an example. The basic tenet is that voluntary cooperation, in both the positive (contributions of code, etc.) and negative (boycotts of those who break the rules, anti-MS sentiment, etc.) senses, is the real basis for much of this phenomenon, as opposed to formal legalisms like those contained in the GPL. Although I certainly don't intend to slight RMS and the FSF for its attempts to use copyright law against itself, in order to formalize the hacker ethic. Perhaps this perspective will allay fears that the whole FSF/OSS model of development might collapse if the GPL were overturned in court, for instance.
One might extend the basic argument against copyright and patent further in the Linux/*BSD/FSF/OSS sphere. ESR's essay on OSS development as a type of bragging rights competition or "gift culture" (at http://www.tuxedo.org/~esr/writings/homesteading/
P.S. IAAL (I am a Lawyer) but I don't practice - I still have my Texas bar card though. (Sysadmin work has been more fun/sane, plentiful, and almost as lucrative). Thus the following disclaimers apply:
Not Board Certified by the Texas Board of Legal Specialization. This is not intended as creating a lawyer-client relationship or providing any form of legal advice.
#include "disclaim.h"
#include "disclaim.h"
"All the best people in life seem to like LINUX." - Steve Wozniak
Aaron's points are salient, if one takes the view that an interest in property is predicated solely on the ethical predicate of possessing the fruit of one's labor. Of course, this is not the entire story, even among libertarian philosophers.
I profess no great expertise in this area of philosophy, and so I shall defer to others to articulate best the philosophical opposition, and to state more perspicaciously Ms. Rand's point of view. (I think merely dismissing her arguments on the grounds that she owned the rights really begs the question and amounts to ad hominem argument; indeed, even this naive amateur philosopher sees that the libertarian "fruit of labor" argument seems far stronger for IP than, say, for land.)
No, my foundational understanding of the justification of property rights is a more practical, economic, argument. It is simply this, if I can own property, then I am more likely to care for it so that it produces well, or at least to sell it to someone else who values it more. Accordingly, the property will find its ways (in an aggregate sense) into the hands of those who value it most, which is to the overall benefit of society.
Of course, the preceding is an overly simplified version of the argument. I merely wanted to identify the point of view for the purposes of the following, rather than to defend it per se.
In adopting this, I don't disagree with Aaron -- the INITIAL ALLOCATION of property does tend to be inequitable in some sense -- giving property to folks based solely upon conquest and the like. The thesis is that this initial allocation is irrelevant to the workability of the property system -- however initial allocations work out, the eventual reallocations that result from free market interaction will reach pareto-optimal levels in due course. There will be local inefficiencies, but the overall system will result in greater aggregate wealth. This is, IMHO, a good thing.
Moreover, this is not inconsistent with what Long calls the "ethical" argument, IMHO. Copyright law, for example, gives you the right to own the fruit of your labor, subject to your freedom to assign it to others. Likewise patents and trademarks. If you work your land, you will likewise own the fruits of that work.
Without the right to exclude, however, others can trample on or hoard the resources necessary for you to work the land; and without the right to exclude, your works may be used indefinitely by others without your having benefitted thereby. The latter isn't an ethical argument, but tracks back to the principles laid out in the Constitution, that an incentive is necessary to promote the "Sciences (read -- skills to write works of authorship) and the useful Arts (read -- skills to invent)." Whether or not you have the incentive, absent that right to exclude, the capital necessary to make it possible for you to feed your family while inventing and/or creating will have to come from your other labors and efforts, thereby depriving you of those fruits.
It's not PC here to say so, but there it is.
With all due respect, I disagree with the proposition "Many people desire . . . ." While some may leave pieces of land disused "for speculative purposes," few do when another person is interested in buying at a responsible price. (Of course, there is a corresponding -- but pervasive -- problem that arises from having no propery rights -- the tragedy of the commons).
More important, I never said that every piece of land is placed in position that is optimal for society -- I said that aggregately, the land is placed in the hands of those who value it most. If a person considers that the land has value in the future far outweighing the value of its present production, and that it would diminish the value of that land in the interim to use the land's production near-term; with noone feeling that they can make greater use of the land and hence be willing to pay more, who is to say that society has not benefitted by not using the land?
For example, a farmer may rationally leave land fallow for a period of time to avoid overusing it, so that aggregately more bounty is produced by the land over time. Is that detrimental to society?
In short, as between any individual or committee's view of the virtues of what should be done with the land, or the overall impact of the market decision, I favor the latter. Yes, there will be examples of stupid people with more dollars than cents doing stupid things with particular assets. But as a whole, it appears to me that society is better served by allowing the market to work. (It also appears to me far closer to the libertarian ideals than the proposition of abandoning property rights entirely.)
Larry makes good points. It is important at the outset of these disputes to note that there are no clear answers -- that the truth is far more interesting than any of our speculations. However, on some of his remarks, I dissent.
1. IP not a scarce resource NOT!.
Granted that once created, IP can be freely and inexpensively duplicated. However, this does not mean, IMHO, that IP is not a scarce resource. Until created, IP does not exist. And it need not exist unless those who would create it have an incentive or reason for doing so -- as well as the resources to do it.
Money makes this happen. Money for houses, money for food, money for beer. Money for computers, money for research materials and for education. Companies won't invest in IP if they can free-ride off of others and others can free-ride off of them -- for the simple reason that it makes sense to wait, and spend the money on marketing to out-market the bejesus out of those who did the making. hence they won't invest in scientists who invent, and inventors will create or not, depending upon their wont, for the good of the creation only.
Perhaps a few rare kings will patronize the best minds, the Bachs, the Mozarts, the Beethovens. And then we will have the art that those kings like best. It will be good, but it will suit the needs of the kings. Perhaps.
And perhaps a few things will be made for the sheer glory of it.
Perhaps not.
This is because innovation and creativity is scarce. And becuause absent IP, inventors and innovators have an incentive to hoard their great ideas -- relying, where possible on secrets.
And the great writers will, yick!, go to law school so they can make a living.
Understood that once created, copying is possible. That is not the point of property. It is to allocate resources where they are desired most. And one of those resources are the time and minds of our best and brightest. I want them thinking about brilliant invention and the fame and wealth they might obtain -- I want them aspiring to be brilliant innovators. I don't want them studying case law in a law library.
Inventions and copyrighted works aren't the scarce resource, innovators and authors of works are the scarce resources. IP is how we reward them, for the benefit of society.
2. Free beer and open movies -- TANSTAFFL.
Larry says that there will be an open source version of star wars. That a cadre of artisans and musicians and actors and model-makers will, for the love of it, make the film just so we all can watch the credits at the end. They will reach into their pockets (or some patron will) to pay $100M up front just to make it happen.
I dissent, finding it incredible that the dollars and resources necessary to bring the whole thing together would ever happen absent the ability to recover and make a profit on that investment. More than brainpower and innovation is necessary -- so is capital.
And between your great story idea and mine, how will that cadre of artisans decide? Will we be destined to see nothing but low budget art films for the rest of our life, or is Larry right, nothing would change except for the better?
Each of us can judge for themselves -- just be realistic in arriving at your own conclusions.
Between you and me, the same argument made against IP in part 1 above, with which I don't agree, but for the reasons stated I believe misses the point, explains in large part why a Linux might happen, without demonstrating that a Star Wars can: Linux didn't require the AGGREGATION at once of real and meaningful capital to create. Don't get me wrong. Linux is great. But its only what it is, and its existence does not to me prove the possibility of a spontaneously created Star Wars trilogy.
Perhaps this is because he expressly criticizes the views of Hayek and Rand on this matter?
By "quite a few," I presume Mr. Harlan means the three (3) that patents that bear your name. Were there more that I missed? Fair enough, but one might have been led to think there were many more.
With all due regard, these characterizations of the process are inconsistent with my experience. It is true that first office actions routinely reject all the claims, and that a fair percentage of patents are granted on the second office action. Mr. Harlan's explanations for these reasons are overstated or wrong.
Mr. Harlan is incorrect that "the burden of proof is on the defender." Mr. Harlan is quite incorrect that the USPTO "simply scans for keywords" in patents, or that they do not search literature. I frequently find non-patent prior art in initial office actions. It *is*, however, the case that the USPTO does lean heavily on patent prior art, doing less search of literature.
There are many reasons for limiting the scope of the novelty search to less than a comprehensive search of all prior art, however -- mostly related to the impossibility of conducting a comprehensive search and more importantly, to keeping the cost of a patent examination within the means of individuals.
The statement, "At no time is your patent read by
someone who understands it," is outrageous and untrue. It does happen, I suppose, from time to time, but rarely will an examiner pass upon an application before comprehending the nature of the subject matter (s)he is examining.
Also misstated are the standards during an infringement action. A plaintiff must prove owernship and infringement by a preponderance of the evidence, or collect nothing, even if the patent is found to be valid. It is true that the validity of the patent is presumed unless the defendant has made a very substantial showing.
Noone else worked on them during that time because they didn't work out so well. So weak were they that Mazda itself abandoned the technology. Everyone else was in a position to develop the technology further, and to attempt a cross-license, but noone bothered. (That happens often in markets, witness the chip marketplace).
I think that forces other than the patent act let to the demise of the everlastingly cute, and undeniably innovative, but commercially unimportant Wankel engine.
> Of all the nations in the world, the US stands alone in permitting software algorithms to be patented.
This is not the case.
I am truly sorry if the response was painful. I hope that you found it at least interesting.
It is difficult, if not impossible, to respond meaningfully to the general hypotheticals you gave without more detail. Suffice it to say that I have defended against patents that I found to be overbroad and invalid, winning some and losing some. I have also had to defend some patents that issued because of less than vigilant defense of the system by the examiner. No system is perfect, but ours works pretty well, IMHO.
As to the benefit in your case -- Conopco hired you to do the research. It paid for your salary. If it couldn't own, to some extent, the fruits of that work, it might not have hired you at all, or might have paid much less -- finding the better business decision to be to let the other guy hire you and benefit by free-riding. (Problem is, the other guy is thinking the same thing).
Perhaps Stanford is better able to provide you with the facilities you provide because of the revenues it derived from licensing?
I do think, however, that the scope of patents you describe is somewhat different from the scope of patents in my experience. On one hand, you seem to suggest that the use of mathematics is precluded. Not so, although the use of a particular formula in order to create a tangible and meaningful result via an apparatus might be. Then, you express concern that a patent for a particular apparatus might cover an entire application area. This would be extraordinary, particularly under present federal circuit law, but not impossible. Even if this were so, the concern you seem to have expressed is that your colleague misrepresented to you the scope of his or her claims, not that the claims are too large.
Please do not forget, the benefit and purpose of the system *is* to provide a meaningful right to exclude. It is also the cost of the system. Depending which side you are on, you might have a different subjective view as to its benefits, but the theory and argument is that society benefits even though you might not.
The balancing of these interests is, well, where the meat of the matter lies. The truth is therefore, far more interesting than the simple conclusions stated by either of us.
I think you unfairly demonize patents, patent attorneys and examiners. The system is far fairer and more straightforward than you suggest. It is also imperfect and could benefit substantially from improvement. Although many engineers and scientists bristle at the system, it is the reason many have their jobs in the first place and, without it, much of what we do as scientists and, particularly as engineers, would be financially unsupportable.
It is also possible that you yourself might derive no benefit whatsoever from the system, but that the system is nevertheless a good thing for society as a whole. Society is like that.
There are many costs, yes. There are also many benefits. These must be balanced in the aggregate and viewed from a societal standpoint to arrive at a fair assessment of whether the system does good or evil.
As the author acknowledges at the outset of his article (although the point seemed lost on some respondants in other threads), many mainstream libertarians, including Rand, Spencer and Spoon, are strong -- indeed Rand was rabid -- supporters of Intellectual Property Rights. The assertion that Jefferson was ambivalent on the issue is belied by his correspondence with Madison on the importance of having a Patent Clause in the Constitution.
I agree, however, that a pure libertarian theory of property may not dictate the necessity of IP. Rand's arguments are compelling to me, but I have found arguments of others to the contrary equally interesting.
However, it must be understood that while the underlying asset (the work of authorship or invention) is ephemeral, the underlying RIGHTS in or to that asset are no more or less tangible than any underlying RIGHTS in real property. All that a property RIGHT is, essentially, is the right to exclude others from doing certain things. The rights in a piece of land are not the land itself -- the land exists before and after any government has vested rights into the land. (Indeed, there are many self-established governments, such as the Republic of Texas and similar groups, who have their own courts, deeds and other institutions. Of course, I prefer to have a deed from the State as a matter of practice, but you have no idea what a royal pain in the but it is to get a "constitutional lien" that was recorded with the county clerk removed from the public records.)
Without the state, neither my real estate interests nor my personal property interests nor my intellectual property interests have any meaning or effect. Accordingly, Mr. Long's "indictment" of intellectual property RIGHTS does not distinguish real property RIGHTS, which has no firmer or less firm grounding in tangible reality -- both depend upon the existence of the state for their existence and meaning.
I concur with other criticisms of the piece in that it does seem to set up a straw man for its principal complaints against IP. IP does not permit protection of a law of nature, and idea, the physical manifestation of a work that is stored in one's head, or any of the other extreme examples. Indeed, these specific issues are excluded by express intellectual property doctrine and the statutes themselves.
This does not mean that all of his arguments, however, are overstated. The paper is reasonably well-written and well-considered, although it is based upon certain false assumptions. It is also limited to providing a libertarian argument, based upon a libertarian view of property; which is to say that other philosophical views justifying property are unaffected by the argument.
The IP argument regarding LOTR, however, is worth spending some time with. (Regrettably more than I have at this time.) The fact of the matter is that the estate drafted some awful contracts, and dealt with some commercial mediocrities, so that LOTR never got done "right." [Actually, my kids like all of it, and to my great joy, love the books best of all.]
This often happens with all forms of property, by the way. The theory is not that meaningful and intelligent economic forces will always yield the best allocation of resources in EVERY case, but that overall, giving individuals property interests in an asset will lead to the conveyance of property where it is most wanted and best appreciated. Pareto-optimality is not the same as optimal allocation case-by-case.
Give me $10.00 and give someone else $10.00. One of us will use it to get more than that amount worth of utils, and one of us will squander it and get less than we actually want. As a society, however, most of us will do what is best (for us), and societally, there is a benefit of an efficient allocation of resources -- even though some individual cases will be sub-optimal.
Yes, LOTR was poorly handled (on the other hand, who is to say for sure that anyone else could make a bigger buck with it, who would actually have done "the right thing")? Many other assets were not. This is not an abberation of IP or IP policy, but an indictment of the business sensibilities of the Tolkein estate, the trustee for the bankruptcy estate of Zoetrope Studios (or whatever they called the shell that made LOTR) and everyone else who blew the deal).
Indeed, maybe the did all do the best they could with the asset, which means that we are all wrong in our valuation of the asset -- who is to say? Of this much, I am fairly certain -- no aggregation of capital large enough would gather to make a film, even of the caliber of LOTR, if the next studio could just as easily copy every print and sell it as their own.
Perhaps the time will come when less than $100M is necessary to make a Star Wars I. That isn't this world, where gaffers need to get paid, and the payment will not come from the hands of those who want to later collect consulting fees. In Mr. Long's world, no films would get made.
The article was a fun piece. But if this is the most cogent argument to be made against IP, the anti-IP forces need to get a better argument.
Suppose, however, in the absence of copyright, you sold your book to Joe Infringer with a restrictive contract that mirrors the current statutory rights of copyright law, and Joe Infringer breaches the contractual duty. You can sue him for your "expectation interest" in the contract: what you stood to gain by Joe's compliance with the contract terms. You cannot get any sort of punitive damages; Anglo-American law does not punish contract-breachers. The recovery will probably be less than what is currently available under the current statutory copyright law, and might be a lot less if the court elected to refuse to allow expectation interest and only gave reliance interest (which it might, because expectation interest is going to be highly speculative, and people will probably flinch at buying a book if the book purchase contract specified liquidated damages in the six figures for breach).
There is, however, a far more difficult problem: a legal concept called privity. When I sell you a thing, and place restrictions on your use of it, I am creating a contract with you. We are in privity of contract, and are mutually bound to abide by that contract. Now, suppose you then later sell that thing to someone else. Is the person you sell it to bound by our original contract? The answer, under contract law, is no; he and I are not in privity of contract. The answer under property law is more complex: If the original contract forms what is called a covenant than he and I may be in privity of estate, and the covenant might run to him. However, covenants are generally only applied to interests in real property; I am not aware of any application of covenants to personal (or intangible) property (although I haven't looked very hard).
Suppose, to get around this sticky problem, I put in a clause that you can't sell the book at all. This is called a restriction on alienation. For real property, the courts generally do not allow restrictions on alienation; if the court does the same in personal property, then you can't do this either. However, some restrictions on alienation are permissible, and a restriction that requires that you bind your buyer to the same contract terms that I bound you to might be permissible. Only a court can answer that question (this is all common law doctrine). Even so, in the case where you do transfer the book without meeting my conditions, we still have a problem with remedy; can I have the court rescind your sale, or do I merely get damages? Can I get an injunction against the your third-party purchaser to prevent him from making copies, even though he has no duty to not do so? What if he's already made copies? I could probably sue YOU for that, even if I can't sue him....
Another problem would deal with theft; if someone steals your copy and then makes copies en masse, who do I sue? You? Was it your fault that it was stolen? Do I sue you and let you bring in the thief as a third-party defendant on a derivative liability theory?
What about if you merely lose the book, or abandon it? Would you like to be potentially liable to a publisher for millions of dollars of damages because you left your copy of Virtual Light on the bus by accident? Hell, anyone who buys a book will have to buy "bookowner's insurance" too.
Of course, we'd end up passing legislation to prevent these problems. And that legislation would probably end up looking a whole hell of a lot like copyright law. Fancy that.
Few people think that out current IP laws couldn't using some tuning, but this article was way off.
1) You cannot patent laws of nature. You can patent inventions, not discoveries. Newton couldn't patent gravity, but he could patent an invention that takes advantage of his discovery.
2) Tiger's wouldn't eat you, because you could build a levitation device. You just wouldn't be able to use it for a profit or in compatition to the inventors levitation device.
3) Patent do not stop the transfer of information, the facilitate it because they make a ready source of information about inventions. If Mr. X patents a mousetrap, you can patent the mousetrap widget that makes Mr. X's mousetrap better. The "problem" is that you cannot patent the mousetrap-widget combo for an arbitrary period of time.
This is a problem for people who want to expand on previous ideas, but it also protects the labor and work of the originator--not forever, just for a while, and maybe that time unit needs to be reviewed.