Yes, obviously consumer surplus is maximized when everyone gets the game. This is true for anything.
But what happens when everyone gets the game (or you pirate the game in your example)? The price of the game approaches zero. Your model is the typical simple one taught in econ courses, but it's certainly not the whole story. You've got to go on from the indifference curve model to the supply/demand model. Certainly in your hypothetical, if everyone steals the game, the game company goes out of business and probably can't cover their fixed costs. This produces exit from the market and prevents any further games being produced in the future.
Consider: in the first case, you get your 20 utils, but in all subsequent cases, you get only 10, because there's no game. Averaged out, you approach a utility of 10...
This would imply to me that some balance between free copying and the cost of policing games would be in order, to increase the average utility above 10 in the long term...
But you can't deny that a company cannot continue to charge $30 for a game when everyone can get it for free. That's what I mean by inflation. The fact that a bill is not a product is immaterial to the phenomenon I'm talking about -- the more copies there are, the less it's worth -- I'm just saying that there's value in scarcity.
That's the point. Even if we could program computers with English, telling a computer to do something could have very different legal ramifications than telling your sister to do something....
Another poster made the point that music can also be considered speech. The point is really that we have a limited right to free expression of our ideas. It's limited to when those expressions are not harmful to other people... Now, finding the boundaries of what is harmful are tough, but sometimes the medium is a factor.
It's clear that publishing your speech in a newspaper _could_ be more harmful than simply saying something on the street, because the medium is different -- it has a broader reach. Similarly, code could be much more powerful than some other types of expression. An exploit or code that beats some DRM could have a lot of effects that normal speech couldn't. Therefore, the law may treat it differently, just as it treats other media differently...
Code is very different from speech. I'm aware that a lot of 'slashdotters' think they are the same thing, but they're not. And yes, I am a coder.
Speech cannot be run on a computer. Code can. Speech usually communicates information and instructions to another human. The primary purpose of code is to do something on a computer. It's _functional_. Its pedagogical function is totally secondary.
But in the end, the real difference is that we probably want to treat code differently in a legal sense, because code can do fundamentally different things than speech can.
We even distinguish between defamatory speech and non-defamatory speech. Is it that inconceivable that we would distinguish between code and speech?
When you copy a bill, you copy a bill. If the bill were the product, it would be the same as copying the game.
You see, the problem is that when you copy a game, you harm anyone who depends on the value of the game because you DEVALUE it. You essentially create game inflation.
This does directly harm the seller, because now they can't sell as many copies, or for as high a price as before...
Unless they start getting thrown in jail or fined... You gonna take the chance that your spiffy new encrypted philez or p2p net doesn't have a bug in the algorithm, or wasn't compromised somehow on irc??
But the point here is that you have to follow the terms of the agreement as they are set out between you and the seller. If you're saying you don't have to follow those terms once you get the CD, that's not right... If you're not saying that, then we have nothing to argue about.:)
I guess I didn't make it clear there that this problem was combated by a specific program of legislation and enforcement with the goal of reducing prostitution, and it was pretty effective.
The point isn't that prostitution is the same as drug use or sale. The point is that legislation and criminal law enforcement can have a big effect, even when you might think they would be futile...
By the way, what I did there, it's called making an analogy. It doesn't mean I'm equating the two things. I'm just looking for similarities and differences between situations to try to gain some insight. It's certainly not conclusive, but it's an effective technique to understand novel situations. No set of circumstances is ever exactly like another...
Disclaimer: Don't take this post as legal advice. I'm not a lawyer yet, just a law student...
Well, he doesn't get it right, actually. I read his post to imply that I can do whatever I want with a CD I buy, regardless of the terms of that purchase... That's not right at all, unless I never saw the terms.
If I offer to buy a CD from X, X tells me his terms of acceptance, and I accept, and we exchange money for CD, that's a contract. I have agreed to the terms, so I can't complain about them. I can breach the contract if I want, or argue that it's unconscionable, but it's just not in this case.
Now, if I don't see the terms until I get home and open the CD, that's a bit different. In this case, the seller has to offer me a chance to return the product and get my money back if I don't like the terms. If the seller won't take it back, the contract could be unconscionable, maybe... But otherwise, it's probably fine. Even though this seems sketchy because you're getting the terms after the fact, the courts struck this compromise (allowing return) because it's impractical to require all sellers to read out the terms of the contract to the buyer at the time of purchase. See e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (1997).
Also, I just want to clarify again for people, in case they might misconstrue some of these posts, that a signature or writing is generally not necessary for a contract...
The terms on the back of a ticket could be valid if the buyer in question reads them, or knew about them, or thought that part of the purpose of the ticket was to convey some of the terms of the agreement... But if the buyer simply thought it was a method of identification, as is often the case with parking stubs, the terms are probably not binding because there was no meeting of the minds there... This is Restatement (Second) of Contracts sec. 20.
As to the use of the word 'license', this actually IS a license, but not according to the common understanding of the word. When you allow someone on your property, that is also called a license. The movie theater is granting you a license to come onto their property and watch the movie in that theater, for a limited time. Now, any unspecified terms of the contract will be found based on the circumstances, including usage of trade, etc... Basically, it's just not that simple.
Penalties are always raised when it becomes difficult, for whatever reason, to enforce a criminal law...
This isn't because the offense is any more morally culpable than before, but because a stiffer penalty is required in order to deter the offense.
This rationale, common in criminal law, assumes that people can understand the difference between say a 20 year sentence and a 40 year sentence... I'm not sure they can. I tend to think that the real critical element of the criminal's cost-benefit analysis in committing a crime is the probability of discovery.
Increasing the penalty is common in other areas of criminal law, and it may help a bit, but the much more effective way to do it is to increase the incidence of capture of the criminal. I think this is what the MPAA is trying to do here...
Certainly, catching this guy in the theater is far better than going after everyone else who copies the movie from him later, individually...
In the 1800s, New York City had an unfathomably huge prostitution industry, by our modern standards. I think every part of the city had prostitutes. It was so bad that it began to become a public health risk and caused a big outbreak in syphillis and other diseases.
Some probably said at the time that it would be "impossible" to prevent prostitution. After all, that's one of our most basic urges, right? There will always be prostitution...
Well, whoever said that would have been right technically, but wrong practically. We've reduced prostitution to an almost negligible amount compared to that time.
Drugs hold an even stronger addictive power and a greater prize in the pleasure they induce. Thus, it's harder to reduce the use of drugs through criminal law... But things could be a _lot_ worse than they are right now, and you should think about the possible ramifications of legalization as well as the problems of enforcement...
I'm not sure whether the detriments of drug law completely outweigh the benefits of fighting it, even though there are abuses. I would rather focus on fixing those abuses first.
We have convinced the EU parliament to place explicit limits on patentability
I hate to tell you that this is not really a substantive limitation. Even if software can't be patented per se, it can still be patented by referring to the computer and software together, and including a technical effect of the invention. Either way, software is going to be patented.
Lawyers do not produce wealth, they are a by-product of a wealthy society and society cannot afford these rediculous demands.
Actually, they do. That wealthy society exists because of the laws that protect all types of property. Think about how much wealth you could create without the law, then tell me who's creating the wealth. Law and lawyers create the system that supports the very possibility of a capitalist society.
Copyright protection and patent law have virtually NOTHING in common, you would know this if you were not just a troll.
What they have in common, if you'll think about it for a moment, is that the author in one instance, and the engineer in the other, both have to work around previously existing works that are protected. Yes, they are very different, but analogies can help us understand things better sometimes.
Firstly, I am a programmer, and I have a CS degree from CMU. There's no reason you can't make distinctions between different types of software, or between algorithms and software. We do it all the time. That was my point. You're over-generalizing.
So you're saying if IBM patented natural language recognition, that it would be a good thing?
Resulting in a total lack of competition, making them the only company in the world who could produce and sell it?
Hmmm... I'm not sure I can see the value in that.
I'm saying that if they invented a novel method of doing something complex, they should be able to sell it without having everyone copy it freely and undercut their R&D investment.
Personally, I'd much rather see other companies try and out-do the competition (producing a better product)... that IS the whole basis for the idea (of competition) in the first place.
Yes, that's the idea of competition, but if you can copy the competition, the value of the innovation in software plummets to zero almost immediately. This means that few will invest the time or resources to develop something novel, because the idea will be stolen.
As to your later arguments, I believe that forcing people to work around patents creates a lot of innovation.
But I am reading this site even though I'm going to be one of the people that matters. I'm a software engineer in law school studying IP.
What I can really tell you is that the arguments on slashdot sound stupid and immature. They make me sad and piss me off with their impracticality. It's like watching a bunch of hippies dance around and chant because their professor told them the U.S. was evil.
The vast majority of arguments I read here and on such sites as ffii.org against software patents are 1) anecdotal, 2) conclusory, and 3) overly emotional. They raise the specter of a few bad software patents, then just chant that the world is ending and all patent lawyers are evil and conspiring to screw the proletariat (oops, i mean "little guy")...
If you really want to convince ME and other people who will be involved in IP litigation, lobbying, and IP issues in general, stop the villifying and start thinking rationally about how you can actually protect intellectual property while still preventing high transaction costs to software development. Extreme views, such as anything with the word 'abolishment' in it, are going to get you nowhere fast, at least with me. You should be focused on solving not only the problem of bad patents, but also on nurturing and protecting creativity, which is the entire purpose of IP protections in the first place.
Yes, lawyers and others certainly have their vested interests, but software developers do too. Much of the argument here strikes me as whining that coders may have to worry about other peoples' inventions. Wake up guys, everybody else does. Heck, journalists even try not to plagiarize. According to arguments here, you'd think that would shut down the media due to the "ridiculous costs"! News flash: the media is as prolific as ever, and they still cite their sources, and they still refrain from copying other peoples' stories without paying for them. ......
Summary: A more pragmatic outlook would be much more helpful to your cause.
So, I'm sorry, you're saying that natural language recognition software, for instance, is just the same as a recipe for cookies?
You're falling into the geek trap of considering everything analogous to be the same. It's not "just the same". It's analogous in some ways, but different.
Yes, the government IS working for us, even though you can't seem to see it.
Most of the problems you talk about have to do with the costs of litigation, which are pretty much the same across the board.
But I would also like to see my 5 friends who are starting a software company be able to patent their innovative products. Software has probably the highest value of any digital content, but is now so easy to copy, how do you purport to protect new software companies?
Will you chant the slashdot mantra that everything will still be ok when no one can sell software anymore, no one can sell music anymore, and we're all relegated to in-person service performances to make money?
Unfortunately, without compensation this is just communism.
I think everyone should cooperate and build on each others' work, but compensate each other for the work they build on...
If hardware patents had existed thirty or forty years ago, there would be patents on the transistor, the zener diode, pipelining architectures, bus architectures, and all the different approaches to RAM... All of these things would be patented. Non-commercial hardware could not exist because there's just no way to create a computer without transistors. unless your computer just consists of a bunch of relays. But of course relays could have been patented too. In fact all these inventions are much more patentable than the stuff that is getting patented now, because when these hardware constructs were developed, they really were completely novel and non-obvious, unlike things like using a blue laser instead of a red laser to read/write data.
The practicality of following laws is always something taken into account by the rule in question.
None of these rules, e.g. copyright, are really meant to be followed absolutely. They're meant to be followed enough to fix a problem that existed prior to that rule. If the rule isn't strong enough to induce enough compliance, the rule will be strengthened. If it's so strong that it creates a lot of problems, it will eventually be weakened.
In the case of our current IP law, there used to be a lot of external constraints on copying and infringing that were unrelated to the law. These helped keep compliance to a reasonable level. Since this has broken down due to the ease of copying, transmitting, and recombining digital content, the rule is bound to get stronger or develop different modes of enforcement in order to bring the compliance people seem to want.
Now if this turns out to destroy the software industry, it will definitely be weakened again, but I myself don't see that happening. As the people making the rules work out these issues, everyone will fight over it and hopefully come to a reasonable compromise.;) But everyone has to fight for what they want.
Slashdot Mirror
But what happens when everyone gets the game (or you pirate the game in your example)? The price of the game approaches zero. Your model is the typical simple one taught in econ courses, but it's certainly not the whole story. You've got to go on from the indifference curve model to the supply/demand model. Certainly in your hypothetical, if everyone steals the game, the game company goes out of business and probably can't cover their fixed costs. This produces exit from the market and prevents any further games being produced in the future.
Consider: in the first case, you get your 20 utils, but in all subsequent cases, you get only 10, because there's no game. Averaged out, you approach a utility of 10...
This would imply to me that some balance between free copying and the cost of policing games would be in order, to increase the average utility above 10 in the long term...
But you can't deny that a company cannot continue to charge $30 for a game when everyone can get it for free. That's what I mean by inflation. The fact that a bill is not a product is immaterial to the phenomenon I'm talking about -- the more copies there are, the less it's worth -- I'm just saying that there's value in scarcity.
Another poster made the point that music can also be considered speech. The point is really that we have a limited right to free expression of our ideas. It's limited to when those expressions are not harmful to other people... Now, finding the boundaries of what is harmful are tough, but sometimes the medium is a factor.
It's clear that publishing your speech in a newspaper _could_ be more harmful than simply saying something on the street, because the medium is different -- it has a broader reach. Similarly, code could be much more powerful than some other types of expression. An exploit or code that beats some DRM could have a lot of effects that normal speech couldn't. Therefore, the law may treat it differently, just as it treats other media differently...
Code is very different from speech. I'm aware that a lot of 'slashdotters' think they are the same thing, but they're not. And yes, I am a coder.
Speech cannot be run on a computer. Code can. Speech usually communicates information and instructions to another human. The primary purpose of code is to do something on a computer. It's _functional_. Its pedagogical function is totally secondary.
But in the end, the real difference is that we probably want to treat code differently in a legal sense, because code can do fundamentally different things than speech can.
We even distinguish between defamatory speech and non-defamatory speech. Is it that inconceivable that we would distinguish between code and speech?
You see, the problem is that when you copy a game, you harm anyone who depends on the value of the game because you DEVALUE it. You essentially create game inflation.
This does directly harm the seller, because now they can't sell as many copies, or for as high a price as before...
Unless they start getting thrown in jail or fined... You gonna take the chance that your spiffy new encrypted philez or p2p net doesn't have a bug in the algorithm, or wasn't compromised somehow on irc??
right.... that's why i do everything i can to evade the law too. That's 1337, man...
I guess it's ok because everyone else still has theirs. Hmmmmmmmmmmm.
Is my kid "guilty" if I don't let him use the car because I want to avoid accidents?
The point isn't that prostitution is the same as drug use or sale. The point is that legislation and criminal law enforcement can have a big effect, even when you might think they would be futile...
By the way, what I did there, it's called making an analogy. It doesn't mean I'm equating the two things. I'm just looking for similarities and differences between situations to try to gain some insight. It's certainly not conclusive, but it's an effective technique to understand novel situations. No set of circumstances is ever exactly like another...
Disclaimer: Don't take this post as legal advice. I'm not a lawyer yet, just a law student...
Well, he doesn't get it right, actually. I read his post to imply that I can do whatever I want with a CD I buy, regardless of the terms of that purchase... That's not right at all, unless I never saw the terms.
If I offer to buy a CD from X, X tells me his terms of acceptance, and I accept, and we exchange money for CD, that's a contract. I have agreed to the terms, so I can't complain about them. I can breach the contract if I want, or argue that it's unconscionable, but it's just not in this case.
Now, if I don't see the terms until I get home and open the CD, that's a bit different. In this case, the seller has to offer me a chance to return the product and get my money back if I don't like the terms. If the seller won't take it back, the contract could be unconscionable, maybe... But otherwise, it's probably fine. Even though this seems sketchy because you're getting the terms after the fact, the courts struck this compromise (allowing return) because it's impractical to require all sellers to read out the terms of the contract to the buyer at the time of purchase. See e.g., Hill v. Gateway 2000, Inc., 105 F.3d 1147 (1997).
Also, I just want to clarify again for people, in case they might misconstrue some of these posts, that a signature or writing is generally not necessary for a contract...
The terms on the back of a ticket could be valid if the buyer in question reads them, or knew about them, or thought that part of the purpose of the ticket was to convey some of the terms of the agreement... But if the buyer simply thought it was a method of identification, as is often the case with parking stubs, the terms are probably not binding because there was no meeting of the minds there... This is Restatement (Second) of Contracts sec. 20.
As to the use of the word 'license', this actually IS a license, but not according to the common understanding of the word. When you allow someone on your property, that is also called a license. The movie theater is granting you a license to come onto their property and watch the movie in that theater, for a limited time. Now, any unspecified terms of the contract will be found based on the circumstances, including usage of trade, etc... Basically, it's just not that simple.
This isn't because the offense is any more morally culpable than before, but because a stiffer penalty is required in order to deter the offense.
This rationale, common in criminal law, assumes that people can understand the difference between say a 20 year sentence and a 40 year sentence... I'm not sure they can. I tend to think that the real critical element of the criminal's cost-benefit analysis in committing a crime is the probability of discovery.
Increasing the penalty is common in other areas of criminal law, and it may help a bit, but the much more effective way to do it is to increase the incidence of capture of the criminal. I think this is what the MPAA is trying to do here...
Certainly, catching this guy in the theater is far better than going after everyone else who copies the movie from him later, individually...
Some probably said at the time that it would be "impossible" to prevent prostitution. After all, that's one of our most basic urges, right? There will always be prostitution...
Well, whoever said that would have been right technically, but wrong practically. We've reduced prostitution to an almost negligible amount compared to that time.
Drugs hold an even stronger addictive power and a greater prize in the pleasure they induce. Thus, it's harder to reduce the use of drugs through criminal law... But things could be a _lot_ worse than they are right now, and you should think about the possible ramifications of legalization as well as the problems of enforcement...
I'm not sure whether the detriments of drug law completely outweigh the benefits of fighting it, even though there are abuses. I would rather focus on fixing those abuses first.
http://www.bitlaw.com/software-atent/history.html
Maybe you're somewhere else...?
As to your later arguments, I believe that forcing people to work around patents creates a lot of innovation.
But I am reading this site even though I'm going to be one of the people that matters. I'm a software engineer in law school studying IP.
What I can really tell you is that the arguments on slashdot sound stupid and immature. They make me sad and piss me off with their impracticality. It's like watching a bunch of hippies dance around and chant because their professor told them the U.S. was evil.
The vast majority of arguments I read here and on such sites as ffii.org against software patents are 1) anecdotal, 2) conclusory, and 3) overly emotional. They raise the specter of a few bad software patents, then just chant that the world is ending and all patent lawyers are evil and conspiring to screw the proletariat (oops, i mean "little guy")...
If you really want to convince ME and other people who will be involved in IP litigation, lobbying, and IP issues in general, stop the villifying and start thinking rationally about how you can actually protect intellectual property while still preventing high transaction costs to software development. Extreme views, such as anything with the word 'abolishment' in it, are going to get you nowhere fast, at least with me. You should be focused on solving not only the problem of bad patents, but also on nurturing and protecting creativity, which is the entire purpose of IP protections in the first place.
Yes, lawyers and others certainly have their vested interests, but software developers do too. Much of the argument here strikes me as whining that coders may have to worry about other peoples' inventions. Wake up guys, everybody else does. Heck, journalists even try not to plagiarize. According to arguments here, you'd think that would shut down the media due to the "ridiculous costs"! News flash: the media is as prolific as ever, and they still cite their sources, and they still refrain from copying other peoples' stories without paying for them.
... ...
Summary: A more pragmatic outlook would be much more helpful to your cause.
So, I'm sorry, you're saying that natural language recognition software, for instance, is just the same as a recipe for cookies?
You're falling into the geek trap of considering everything analogous to be the same. It's not "just the same". It's analogous in some ways, but different.
Most of the problems you talk about have to do with the costs of litigation, which are pretty much the same across the board.
But I would also like to see my 5 friends who are starting a software company be able to patent their innovative products. Software has probably the highest value of any digital content, but is now so easy to copy, how do you purport to protect new software companies?
Will you chant the slashdot mantra that everything will still be ok when no one can sell software anymore, no one can sell music anymore, and we're all relegated to in-person service performances to make money?
That sucks in my opinion.
Are you suggesting that "I don't know" is an acceptable answer when your town's electrical systems are all spontaneously combusting?
Uhhh. No.
Unfortunately, without compensation this is just communism. I think everyone should cooperate and build on each others' work, but compensate each other for the work they build on...
If hardware patents had existed thirty or forty years ago, there would be patents on the transistor, the zener diode, pipelining architectures, bus architectures, and all the different approaches to RAM... All of these things would be patented. Non-commercial hardware could not exist because there's just no way to create a computer without transistors. unless your computer just consists of a bunch of relays. But of course relays could have been patented too. In fact all these inventions are much more patentable than the stuff that is getting patented now, because when these hardware constructs were developed, they really were completely novel and non-obvious, unlike things like using a blue laser instead of a red laser to read/write data.
The practicality of following laws is always something taken into account by the rule in question. None of these rules, e.g. copyright, are really meant to be followed absolutely. They're meant to be followed enough to fix a problem that existed prior to that rule. If the rule isn't strong enough to induce enough compliance, the rule will be strengthened. If it's so strong that it creates a lot of problems, it will eventually be weakened. In the case of our current IP law, there used to be a lot of external constraints on copying and infringing that were unrelated to the law. These helped keep compliance to a reasonable level. Since this has broken down due to the ease of copying, transmitting, and recombining digital content, the rule is bound to get stronger or develop different modes of enforcement in order to bring the compliance people seem to want. Now if this turns out to destroy the software industry, it will definitely be weakened again, but I myself don't see that happening. As the people making the rules work out these issues, everyone will fight over it and hopefully come to a reasonable compromise. ;) But everyone has to fight for what they want.