Not really, it's ultimately the fault of the Federal Government for not requiring that Amazon collect.
The trouble is that there is a very good reason why they haven't: If they do then the states can enact de facto tariffs on interstate commerce.
All California has to do is establish a 15% sales tax and then use the extra money to subsidize local corporations or, equivalently, reduce their non-sales taxes. Then everybody who sells to California's large population has to collect the high sales tax, but no one without operations in California get the consequent tax reductions or subsidies that the high sales tax pays for. States with large populations can thereby force companies to move their operations there.
The equally undesirable alternative is that it forces states with smaller populations to adopt the same high sales taxes, even if they would prefer more equitable property or income taxes, because no company conducting interstate commerce will put a facility in a state with higher property or income taxes when they will still have to collect the high sales tax from the bulk of their customers who are in the more populous states. It effectively takes the choice of tax structure away from the people of those states without any representation -- which is the exact thing that putting Congress in charge of regulating interstate commerce was supposed to prevent.
Well, since we've got corporate personhood [boingboing.net], businesses can pay taxes. If you still insist that people are paying those taxes, I supposed it'd be the shareholders, not the employees or customers, directly paying those costs. I'm okay with that.
Yes, but no. The problem is that for business in competitive markets, like food and housing -- you know, the things poor people buy -- the margins the owners make are razor thin. When you go out and increase the costs (that is, taxes) on everyone in the market, the money has to come from somewhere, and since it can't come from the corporate owners (who will liquidate the business and invest the money in commodities, foreign markets, etc. if they can't make at least the pittance they do now), it has to come from the employees and the customers. Which is to say, poor people.
Then, to add insult to injury, most of the "rich" don't own publicly-traded "C" corporations -- they own private companies that are normally organized as an LLC which is taxed like a partnership and is not subject to corporate income tax. And on top of it all, the publicly-traded corporations who are subject to the tax and are large enough to have international operations hire a bunch of accountants and tax lawyers to restructure their operations so that all the profits are made in foreign jurisdictions with lower taxes and the US operations report minimal taxable income.
Corporate income tax is a sham. It taxes small and medium businesses to the benefit of large international operations and it raises the cost of necessities to the indigent. If you want to tax rich people, you add $1/gallon to the tax on jet fuel and create a new 50% marginal tax bracket for people who make over $1M/year.
I think as a country we are collecting less tax from internal sales overall, and suddenly the debt skyrockets...
You're equating falling sales tax revenues with a rising national debt even though there is no national sales tax. The two are entirely unrelated.
There are primary reason why the national debt is increasing is the trillions spent on the GWoT. The fact that the baby boomers are now starting to retire and collect benefits rather than working and paying taxes is also a significant contributor. It has nothing to do with Amazon.
Well, it just becomes an arms race. Once the tool gets popular enough that you notice it you block the tool. Then they make a new tool, then you block that. As a bonus side effect, you train the next generation of hackers.
It is an arms race that the censor will lose, because the hackers are perfectly capable of communicating in ways that require politically suicidal measures to prevent. Never mind simple work-arounds like P2P software that downloads digitally signed updates for a list of censored name:address mappings from arbitrary peers. You take The Pirate Bay out of the DNS, what do you do when people post the IP address for The Pirate Bay in the comments for every site that shows up on the first five pages of search results when you type "The Pirate Bay" into Google? Or do with the IP address what people did with the HD-DVD key on Digg? What if people just use a proxy, VPN or TOR -- will you block every SSL connection in the world because it could be one of those things? It's a losing battle, and it will be better for all of us if we can make the politicians realize that and admit defeat before they cause any more damage.
It is certainly true that censorship is a political question rather than a technological one, but we can't forget that the technology impacts the policy discussion. Those who promote censorship will argue that keeping people from The Pirate Bay is worth the cost of breaking the DNS and impeding legitimate speech, such as the discussions of public policy and advocacy of policy positions that are presented on The Pirate Bay's blog. If the true state of things is that everyone interested in copyright infringement will be able to download a censorship work-around just as easily as they downloaded a BitTorrent client (or the work-around will come in as an automatic update to the client), but people with a casual or academic interest in the issue who are unwilling to download a legally questionable censorship work-around will be prohibited from hearing what The Pirate Bay has to say, the case for censorship completely falls apart. As they say, if you outlaw information then only outlaws will have information.
Ignoring the impact of technology ignores the futility of the policy. It makes it look like a good policy on paper when the reality is completely different.
That said, if your point is that the technology does not make the policy irrelevant, I completely agree. The fact that technology will allow anyone to circumvent the censorship does not eliminate the harms of censorship -- it breaks DNSSEC, prevents law-abiding citizens unwilling to execute a work-around from accessing a variety of non-infringing material, and it legitimizes the idea of censorship. For those reasons it must be fought as a policy matter regardless of the technology.
But technology creates a powerful policy argument that the expected benefits will not accrue while the costs accumulate, and it strengthens the argument that censorship should not be adopted as a policy.
You can't even do that, because it's just software. The truly dedicated find a way to circumvent it, produce a tool which is distributed over the internet to everyone else and the censorship is avoided. In order to prevent that, you would have to stop people from communicating with each other and distributing the tool -- which you can do in theory, you can close the whole internet in theory, but in almost all cases it makes the cost for the censorship entity vastly exceed the benefit of being able to censor because of unwanted suppression of legitimate communication due to false positives. For example, see the complete lack of success of the DMCA anti-circumvention law in preventing the dissemination of circumvention tools.
The exceptions are countries like China and North Korea where if the ability to censor is impeded, there could be a popular revolution, and so the government is willing to take oppressive action and impede legitimate speech -- and even there it is arguable whether they have a stable long-term censorship solution in place or they've just managed to delay the inevitable.
Both major parties (not one, both) need to set aside their posturing and pontificating for the benefit of their fringe constituencies. This country has serious problems. We need a frank discussion of the solutions followed by non-partisan action. Let's put an end to any activity that only benefits a small portion of the citizenship. Halt useless Congressional activity that only serves political parties and their patronage. The time for such nonsense is long over. Let's get to work.
The problem is that there is not one solution. There are a variety of solutions that have a variety of impacts on different people. We could close the deficit eliminating social security, medicare and medicaid. We could do it by cutting the military budget by three quarters and raising taxes on the top 1%. We could just say fuck it, continue massive deficit spending and pass a debt of twice GDP to our grandchildren.
The problem is that there is no objectively right answer. So what we have is the different beneficiaries fighting over scarce resources. You can't just say "do it now" because the question remains -- do what? There is no amount of discussion or "work" that will get the AARP to agree to eliminate social security, or the defense contractors or their employees to agree to a plan that would cut their contracts by three quarters, etc. So you have a bunch of political posturing as different factions do horse trading to try to assure that their donors' desires make it into the budget.
It isn't about Doing the Right Thing, it's about who gets to have the government take money out of the treasury to write them a check. The only way you could put a stop to it is if you took the money out of Washington -- if you handed all the social programs to the states and left the federal government in charge of a military which consumed the European-average percentage of GDP. Then the lobbyists would have to go to the states, which would make each lobbyist 50 times less effective.
Generally, logical fallacies are actually worth learning, while a focus on rhetorical fallacies tends to lead to a duel of "who is arguing wrong."
The problem is that rhetorical fallacies are based on logical fallacies. For example, suppose I argue that I heard something on Fox News, and therefore it must be wrong. That is the argument ad personam -- Fox News is almost always wrong, so if they said it then it's wrong.
The ad personam fallacy is a fallacy because it is logically unsound -- it's based on a faulty premise, that an entity which is wrong 95% of the time is wrong 100% of the time. It is possible for Fox News to air something that is true, and there have been instances in evidence of this happening, as hard as that is to believe. So the fact that they said it does not conclusively prove that it is false. If someone is arguing that it does, they have to be disabused of that notion before any further progress can be made toward a consensus.
The thing that really causes preservation of the status quo is that some parties to the debate benefit from the status quo. They are happy to spout gibberish and argue about process indefinitely, because they know that the longer they can delay the debate on the merits, the longer they can continue to enjoy their unjust advantage.
The only way to make progress in the face of those people is to identify them and remove them from the debate -- and the way to do it is fairly straightforward but rarely exercised. You simply create and enforce a rule against the use of logical and rhetorical fallacies. If someone is accused of wasting everyone's time by employing one, they have an opportunity to immediately retract their statement, and if not you conduct a brief trial and then eject them from the debate if they are convicted. Then you waste some time at the outset ejecting the shills and the idiots, but from there out you can have a civilized discussion because people will think through their statements before opening their mouths in order to avoid being ejected. (You also get both sides to better understand fallacies so that they can call out the other.)
Naturally the primary reason that this has not come about is that those same people who are interested in unjustly preserving the status quo are interested in not being ejected from the debate for doing so, but that doesn't mean we couldn't overcome them if we tried hard enough.
OK, let's try the abbreviated version. I want you to answer this question: What is your proposed "objective measurement for entitlement"? If I'm the patent office and someone submits an application for a software patent, how do you think I should decide objectively whether to issue them a patent?
For the 3rd time, I'm illustrating that there are 2 issues at play (transmission and usage), and that the legal definitions of copyright and patent are inspired by those 2 issues, respectively.
And what I am saying is that your categories are wrong. Copyright is not about transmission -- you can't copyright the names in a telephone directory regardless of who transmits them, and in some cases you can infringe a copyright without any transmission or distribution. Copyright is about creative expression.
Likewise, patent is not really about usage -- if you invent the first ever vacuum tube and patent it, you can stop anyone who makes vacuum tubes, regardless of what they use them for. They could be making them to use in industrial art and it wouldn't save them. By contrast, if you invent a new use for vacuum tubes that already exist, like a tube radio, you can't then patent "vacuum tubes for use in a tube radio" where they are indistinguishable from the vacuum tubes that existed in the prior art. Neither can you use the patent to stop someone who buys your tube radio from using it to produce industrial art. Utility is a prerequisite for a patent, but it isn't the fundamental purpose of a patent. Patents are about inventions.
That is why this is wrong:
The reason that mathematics is not patentable is simply because too many of the ideas that are construed as being "mathematics" do not warrant the usage entitlement that patents grant.
The reason that mathematics is not patentable is because you didn't invent it. It exists inherently in everything. If you allow Newton to patent calculus, in theory he should be able to sue a physics professor who measures the time it takes for a mass to fall a meter under Earth's gravity. And if you don't allow him to sue for that then there is no use in issuing the patent, because anyone can construct a machine which operates under the laws of physics and allows the user to determine the answer to calculus problems using a combination of physical measurements and basic arithmetic without paying Newton.
You also allow people to take out rent-seeking patents like working out the equation that measures the maximum theoretical efficiency of a recently-published invention created by someone else and then patenting the math, thereby covering any highly efficient implementation without actually doing the work to implement the high-efficiency solution.
These are only a small fraction of the problems that arise if you allow maths or abstract ideas to be patented. You're saying that we need an objective measure for entitlement, but I don't recall that you have proposed one at all, much less one that would address all these issues. The courts haven't really either. But there's too much hand waving going on in both cases. By contrast, "no software patents" is very objective -- you just use something akin to the old printed matter rule. If a publisher would be liable to the patentee or not depending entirely on what words (or code) it publishes, the patent should not be issued. So let's hear your alternative objective measure for patentability that allows some maths to be patented without causing all this mess.
I am curious as to how they will determine what is and is not copyright-infringing content.
By shutting down access to everything, obviously. There is no other possible way to do it because there is no automated way to determine who the copyright owner for a piece of text is or whether it was properly licensed.
An attitude such as this would be saying there are no unknowns remaining because we can't think of anymore at the moment.
Nonsense. The problem is this: Let's say I come up with gravity drive for my spaceship, which nobody has ever thought of before. It's a completely different propulsion system than anybody has ever imagined. Turns electricity straight into thrust. Then I go build my spaceship without licensing any patents from anybody and... get sued, because I still need high capacity batteries, fuel cells, CO2 extractors, thermal shielding for the hull, etc. and all of that stuff is patented by the incumbent competitors.
The only way you could avoid the patents would be if you invented a radically new version of every single piece of the space ship. And that never happens. Not once in the history of time.
Of course, you do have two other options. First, you could give up trying to make a space ship and just make gravity drives and sell them to the space ship companies. Only problem is that you're selling to a cartel of space ship companies, and nobody else can enter the market for space ships for the same reason that you couldn't, which means the cartel has got you by the short hairs on the demand side and you aren't going to make any good margins.
So your last option is to sell out to one of the incumbents -- you sell your company for a few million bucks and retire to the beach. Which is great except that the incumbent who bought it is going to make billions, and if it weren't for the fact that they can sue you for making any kind of a space ship, you could have leveraged your first to market advantage into a multibillion dollar company of your own instead. More to the point, you could have added a competitor to a concentrated market instead of selling a patent to a company that is now destined to become a monopoly.
However, there is a blurring between the notions of copyright and patent as I have presented them, but that's only because the differentiation of them is too subtle for most people, especially politicians, who are mainly trained in obfuscation; for instance, if I recall correctly, it is a violation of copyright to reuse wholesale another author's novel's plot even when those ideas are transmitted much differently. In my opinion, then, the plot of a novel really falls under patents rather than copyrights.
So what you're saying is that you want to redefine what patent and copyright mean so that they mean something other than what everybody knows them to be under the existing law, and by redefining what a patent is so that it is something more akin to the right to make derivative works under copyright you can then say that software ought to be patentable. Don't be ridiculous. It remains the case that software should not be patentable if the patent system is to continue to work anything resembling the way it has in the past.
I think "who does do the work" is the tricky part, and the ones who we'll always win that judgment are the ones with guns and money.
Your statement is generic and irrelevant. Yes, people with money can use it to bully the little guy. How does that make it good policy to give the people with money thousands of software patents that they can use as additional ammunition in that fight?
The only question is: What ideas deserve to have their usage restricted? It all comes down to entitlement, and that is really what we need to measure.
I meant to address this before I clicked submit above, so I'll just have to make another post.
The trouble with software patents is that if you actually answer your question for software, you come up with something that looks a whole lot like copyright. What you want to do is prevent someone from just wholesale copying a competitor instantly without doing any of the work, but do so in a way that doesn't allow the mechanism to produce monopolies and oligopolies that can exclude a later entrant from the market who does do the work. In other words, independent invention should be a defense -- as it is for copyright but not for patent.
Moreover, the normal problem for the patent system which requires independent invention not to be a defense is highly attenuated in the case of software: You don't want someone who sees the invention to make insignificant changes and then claim they invented independently without doing any work. But copyright for software prevents verbatim copying, which requires independent implementation.
That evens things out between the first mover and the competitors, because the most time-consuming part of software development both for the first mover and for competitors is the implementation -- working out all the bugs and security vulnerabilities. And since that takes time for competitors to do, the first mover can use copyright to achieve a significant first-to-market advantage. In addition, since it requires the competitor to incur the same expenses, the competitor can't use a development cost advantage to undercut the first mover -- who by the time the competitor comes to market has recovered most of its development costs and can then reduce its own prices in response to the competition while still achieving a positive ROI. Which means that there is no case for software patents other than to thwart follow on innovation by entrenching the market position of incumbents.
Patents restrict the usage of ideas. Copyrights restrict the transmission of ideas.
Neither of those is right. Patents restrict the usage of inventions. Copyrights restrict the usage of expressions. "Abstract ideas" are the first thing on the Supreme Court's list of the three things you can't patent: Abstract ideas, laws of nature and natural phenomena. (Maths come in under #2.)
Everything is information. Everything is Mathematics.
Nonsense. Mathematics can be used to describe anything, but the thing isn't the math. A jet engine is described by F=ma. A piece of software that calculates the force exerted by a jet engine is F=ma.
It is most certainly a reason, contrary to your belief that they shouldn't have one.
"Because they want to" is not a reason. It is entirely circular. It leaves the question why they want to. And if the answer to "why do they want to?" is "because they want to" I think you can clearly see the loop.
So instead of the blanket "no reason not to" you have converted to "well, most of the time its a commercial reason"
No, what I'm saying is that if they have a commercial reason then they aren't a hobbyist. They're just a small commercial software developer who makes money through means other than software licensing.
You know that shareware and freeware are different, right?
Now explain how the distinction is relevant, or how my comment doesn't apply equally well to "freeware." For that matter, by all means let's see the huge list of noncommercial freeware that "predates the open source movement," keeping in mind that the open source movement dates back to the 70's.
Here is a small list of 102 freeware (none of them ever having been open source or commercial) games.
the freeware movement doesnt include any commercial shit at all.
Did you even look at that list? Let's just go through the first few items on it. Ace of Spades was written by the professional game programmer who wrote the Build engine for Duke Nukem 3D et al, and the voxel engine for the freeware game is open source. Ahriman's Prophecy is written by Amaranth Games, a commercial operation. Alien Swarm is by Valve, ditto. America's Army is by the US ARMY, not a hobbyist. Ancient Domains of Mystery is closed source because the developer was interested in "licensing the source to capable developers to form a commercial venture." You're not exactly helping yourself here.
Then there is no such thing as "true innovation" because everything builds on what came before. The first ever motorcar was not "true innovation" because it built on the carriages that preceded it. The first ever steam engine was not "true innovation" because it required man to know how to make fire, which was not new.
And the problem is that today, large companies have broad patents on the computer equivalent of "method of making fire" and "wheel-based transportation device" etc. So the little guy can't come along and produce the computer equivalent of the electric car because the incumbents have patents on wheels, window glass, electrical wires, etc.
The fact that they aren't fighting these patents from Microsoft (along with the others licensing them) is a good indication that they are viewed as valid patents
Where do people come up with logic like this?
People generally license patents when the cost of fighting the lawsuit plus the damages if you lose times the likelihood of losing exceeds the licensing cost. That can occur just as easily because the license fees are less than the litigation costs and public relations costs as because the company expects the patents to actually hold up.
And you're ignoring the possibility that Microsoft is back to its old tricks again, e.g. pay us a license for every Android device and we'll give you a big discount on WP7 licenses. Which costs the manufacturer nothing if the net Android license fees are less than the net WP7 discount, but unbalances the manufacturer's incentives for which phones to promote into Microsoft's favor and lets Microsoft trumpet the idea that they're making money from Android.
There is no fundamental difference between the Newcomen steam engine and Linux's latest execution scheduler.
There is no fundamental difference between Linux's latest execution scheduler and a chapter in The Art of C Programming.
The problem with software patents is that they are an attempt to patent ideas and mathematics rather than inventions. There are no physical constraints in software. The only constraints are mathematical. In consequence, there have only been two types of pure software patents: 1) Those so abstract and unconstrained by anything that they amount to an idea and not an invention (e.g. multi-touch gestures, one-click shopping), and 2) Those constrained by mathematics that are little more than naked attempts to patent the underlying mathematics (e.g. codec or encryption patents). Neither is supposed to be patentable.
So you use the example of the Linux execution scheduler. That is a piece of software. You would have to pick some aspect of it to patent. If there is some aspect which makes it particularly good at its function (perhaps it is O(1) and uses memory efficiently), you could try to patent what allows it to be efficient, but you would really be patenting the math behind it. You did not invent the math, you only discovered it. So let's get away from the mathematical constraints; but there are no other constraints in software, so you are merely left with an abstraction -- the idea of an execution scheduler. Something so broad that no one should hold a patent on it because the patent would cover any possible execution scheduler, regardless of how tenuous the relationship is to what was allegedly invented.
That is the same thing. Splitting it into separate transactions does not make it any less of a protection racket.
Let me spell it out for you. Let's say a company comes to you with two patents, one of which you aren't infringing and the other of which could be invalidated in court. The cost of vindicating yourself is $X/patent, after legal fees, wasted programmer time, marketing detriments, etc. They're asking for an aggregate licensing cost of $20X, so you go to court, win, and come out ahead, since $2X is less than $20X. And since everybody knows that is what would happen at the outset, they don't try it unless they have some legitimate patents that you're legitimately infringing.
Now let's say a company comes to you with fifty patents. The cost of vindicating yourself is still $X/patent, and they're still asking for an aggregate licensing cost of $20X, but now you would have to pay $50X to vindicate yourself in court. It costs more to win than to license, so you're coerced into paying the license fee completely regardless of whether you're infringing the patents and whether they could be invalidated.
The fact that you are still coerced into paying even if you aren't infringing any valid patents is what makes it a protection racket.
That isn't a reason. You might as well say, "because I said so." There has to be a reason that they "want to," and the most likely reason is commercial advantage. Almost all of those old school shareware authors had some kind of profit-making scheme tied to the software, whether it was begging for donations, selling a version with more features, restricting the free version to noncommercial use and selling a commercial version, etc.
The idea that there might be some small number of people who want to give away software entirely altruistically but for some eccentric reason without the source code just seems like grasping at straws.
That makes no sense. How would releasing the source code increase piracy? The pirates have already cracked all of the product activation etc. even without having the source. And the vast, overwhelming majority of sales of Windows come bundled with new PCs. Is Dell going to start including pirated Windows with their PCs because Microsoft has released the source code? It's nonsense.
No, you hold the aircraft manufacturer liable because they're the one who put buggy software in an airplane.
Or, if you're an aircraft manufacturer and you want the person who developed the software to assume liability, you make them sign a contract to that effect before you pay them.
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Not really, it's ultimately the fault of the Federal Government for not requiring that Amazon collect.
The trouble is that there is a very good reason why they haven't: If they do then the states can enact de facto tariffs on interstate commerce.
All California has to do is establish a 15% sales tax and then use the extra money to subsidize local corporations or, equivalently, reduce their non-sales taxes. Then everybody who sells to California's large population has to collect the high sales tax, but no one without operations in California get the consequent tax reductions or subsidies that the high sales tax pays for. States with large populations can thereby force companies to move their operations there.
The equally undesirable alternative is that it forces states with smaller populations to adopt the same high sales taxes, even if they would prefer more equitable property or income taxes, because no company conducting interstate commerce will put a facility in a state with higher property or income taxes when they will still have to collect the high sales tax from the bulk of their customers who are in the more populous states. It effectively takes the choice of tax structure away from the people of those states without any representation -- which is the exact thing that putting Congress in charge of regulating interstate commerce was supposed to prevent.
Well, since we've got corporate personhood [boingboing.net], businesses can pay taxes. If you still insist that people are paying those taxes, I supposed it'd be the shareholders, not the employees or customers, directly paying those costs. I'm okay with that.
Yes, but no. The problem is that for business in competitive markets, like food and housing -- you know, the things poor people buy -- the margins the owners make are razor thin. When you go out and increase the costs (that is, taxes) on everyone in the market, the money has to come from somewhere, and since it can't come from the corporate owners (who will liquidate the business and invest the money in commodities, foreign markets, etc. if they can't make at least the pittance they do now), it has to come from the employees and the customers. Which is to say, poor people.
Then, to add insult to injury, most of the "rich" don't own publicly-traded "C" corporations -- they own private companies that are normally organized as an LLC which is taxed like a partnership and is not subject to corporate income tax. And on top of it all, the publicly-traded corporations who are subject to the tax and are large enough to have international operations hire a bunch of accountants and tax lawyers to restructure their operations so that all the profits are made in foreign jurisdictions with lower taxes and the US operations report minimal taxable income.
Corporate income tax is a sham. It taxes small and medium businesses to the benefit of large international operations and it raises the cost of necessities to the indigent. If you want to tax rich people, you add $1/gallon to the tax on jet fuel and create a new 50% marginal tax bracket for people who make over $1M/year.
I think as a country we are collecting less tax from internal sales overall, and suddenly the debt skyrockets...
You're equating falling sales tax revenues with a rising national debt even though there is no national sales tax. The two are entirely unrelated.
There are primary reason why the national debt is increasing is the trillions spent on the GWoT. The fact that the baby boomers are now starting to retire and collect benefits rather than working and paying taxes is also a significant contributor. It has nothing to do with Amazon.
Well, it just becomes an arms race. Once the tool gets popular enough that you notice it you block the tool. Then they make a new tool, then you block that. As a bonus side effect, you train the next generation of hackers.
It is an arms race that the censor will lose, because the hackers are perfectly capable of communicating in ways that require politically suicidal measures to prevent. Never mind simple work-arounds like P2P software that downloads digitally signed updates for a list of censored name:address mappings from arbitrary peers. You take The Pirate Bay out of the DNS, what do you do when people post the IP address for The Pirate Bay in the comments for every site that shows up on the first five pages of search results when you type "The Pirate Bay" into Google? Or do with the IP address what people did with the HD-DVD key on Digg? What if people just use a proxy, VPN or TOR -- will you block every SSL connection in the world because it could be one of those things? It's a losing battle, and it will be better for all of us if we can make the politicians realize that and admit defeat before they cause any more damage.
It is certainly true that censorship is a political question rather than a technological one, but we can't forget that the technology impacts the policy discussion. Those who promote censorship will argue that keeping people from The Pirate Bay is worth the cost of breaking the DNS and impeding legitimate speech, such as the discussions of public policy and advocacy of policy positions that are presented on The Pirate Bay's blog. If the true state of things is that everyone interested in copyright infringement will be able to download a censorship work-around just as easily as they downloaded a BitTorrent client (or the work-around will come in as an automatic update to the client), but people with a casual or academic interest in the issue who are unwilling to download a legally questionable censorship work-around will be prohibited from hearing what The Pirate Bay has to say, the case for censorship completely falls apart. As they say, if you outlaw information then only outlaws will have information.
Ignoring the impact of technology ignores the futility of the policy. It makes it look like a good policy on paper when the reality is completely different.
That said, if your point is that the technology does not make the policy irrelevant, I completely agree. The fact that technology will allow anyone to circumvent the censorship does not eliminate the harms of censorship -- it breaks DNSSEC, prevents law-abiding citizens unwilling to execute a work-around from accessing a variety of non-infringing material, and it legitimizes the idea of censorship. For those reasons it must be fought as a policy matter regardless of the technology.
But technology creates a powerful policy argument that the expected benefits will not accrue while the costs accumulate, and it strengthens the argument that censorship should not be adopted as a policy.
You can't even do that, because it's just software. The truly dedicated find a way to circumvent it, produce a tool which is distributed over the internet to everyone else and the censorship is avoided. In order to prevent that, you would have to stop people from communicating with each other and distributing the tool -- which you can do in theory, you can close the whole internet in theory, but in almost all cases it makes the cost for the censorship entity vastly exceed the benefit of being able to censor because of unwanted suppression of legitimate communication due to false positives. For example, see the complete lack of success of the DMCA anti-circumvention law in preventing the dissemination of circumvention tools.
The exceptions are countries like China and North Korea where if the ability to censor is impeded, there could be a popular revolution, and so the government is willing to take oppressive action and impede legitimate speech -- and even there it is arguable whether they have a stable long-term censorship solution in place or they've just managed to delay the inevitable.
Both major parties (not one, both) need to set aside their posturing and pontificating for the benefit of their fringe constituencies. This country has serious problems. We need a frank discussion of the solutions followed by non-partisan action. Let's put an end to any activity that only benefits a small portion of the citizenship. Halt useless Congressional activity that only serves political parties and their patronage. The time for such nonsense is long over. Let's get to work.
The problem is that there is not one solution. There are a variety of solutions that have a variety of impacts on different people. We could close the deficit eliminating social security, medicare and medicaid. We could do it by cutting the military budget by three quarters and raising taxes on the top 1%. We could just say fuck it, continue massive deficit spending and pass a debt of twice GDP to our grandchildren.
The problem is that there is no objectively right answer. So what we have is the different beneficiaries fighting over scarce resources. You can't just say "do it now" because the question remains -- do what? There is no amount of discussion or "work" that will get the AARP to agree to eliminate social security, or the defense contractors or their employees to agree to a plan that would cut their contracts by three quarters, etc. So you have a bunch of political posturing as different factions do horse trading to try to assure that their donors' desires make it into the budget.
It isn't about Doing the Right Thing, it's about who gets to have the government take money out of the treasury to write them a check. The only way you could put a stop to it is if you took the money out of Washington -- if you handed all the social programs to the states and left the federal government in charge of a military which consumed the European-average percentage of GDP. Then the lobbyists would have to go to the states, which would make each lobbyist 50 times less effective.
Generally, logical fallacies are actually worth learning, while a focus on rhetorical fallacies tends to lead to a duel of "who is arguing wrong."
The problem is that rhetorical fallacies are based on logical fallacies. For example, suppose I argue that I heard something on Fox News, and therefore it must be wrong. That is the argument ad personam -- Fox News is almost always wrong, so if they said it then it's wrong.
The ad personam fallacy is a fallacy because it is logically unsound -- it's based on a faulty premise, that an entity which is wrong 95% of the time is wrong 100% of the time. It is possible for Fox News to air something that is true, and there have been instances in evidence of this happening, as hard as that is to believe. So the fact that they said it does not conclusively prove that it is false. If someone is arguing that it does, they have to be disabused of that notion before any further progress can be made toward a consensus.
The thing that really causes preservation of the status quo is that some parties to the debate benefit from the status quo. They are happy to spout gibberish and argue about process indefinitely, because they know that the longer they can delay the debate on the merits, the longer they can continue to enjoy their unjust advantage.
The only way to make progress in the face of those people is to identify them and remove them from the debate -- and the way to do it is fairly straightforward but rarely exercised. You simply create and enforce a rule against the use of logical and rhetorical fallacies. If someone is accused of wasting everyone's time by employing one, they have an opportunity to immediately retract their statement, and if not you conduct a brief trial and then eject them from the debate if they are convicted. Then you waste some time at the outset ejecting the shills and the idiots, but from there out you can have a civilized discussion because people will think through their statements before opening their mouths in order to avoid being ejected. (You also get both sides to better understand fallacies so that they can call out the other.)
Naturally the primary reason that this has not come about is that those same people who are interested in unjustly preserving the status quo are interested in not being ejected from the debate for doing so, but that doesn't mean we couldn't overcome them if we tried hard enough.
Ah yes, but there are more car drivers than bicycle riders, so since we live in a democracy the car drivers win. Isn't democracy great?
OK, let's try the abbreviated version. I want you to answer this question: What is your proposed "objective measurement for entitlement"? If I'm the patent office and someone submits an application for a software patent, how do you think I should decide objectively whether to issue them a patent?
For the 3rd time, I'm illustrating that there are 2 issues at play (transmission and usage), and that the legal definitions of copyright and patent are inspired by those 2 issues, respectively.
And what I am saying is that your categories are wrong. Copyright is not about transmission -- you can't copyright the names in a telephone directory regardless of who transmits them, and in some cases you can infringe a copyright without any transmission or distribution. Copyright is about creative expression.
Likewise, patent is not really about usage -- if you invent the first ever vacuum tube and patent it, you can stop anyone who makes vacuum tubes, regardless of what they use them for. They could be making them to use in industrial art and it wouldn't save them. By contrast, if you invent a new use for vacuum tubes that already exist, like a tube radio, you can't then patent "vacuum tubes for use in a tube radio" where they are indistinguishable from the vacuum tubes that existed in the prior art. Neither can you use the patent to stop someone who buys your tube radio from using it to produce industrial art. Utility is a prerequisite for a patent, but it isn't the fundamental purpose of a patent. Patents are about inventions.
That is why this is wrong:
The reason that mathematics is not patentable is simply because too many of the ideas that are construed as being "mathematics" do not warrant the usage entitlement that patents grant.
The reason that mathematics is not patentable is because you didn't invent it. It exists inherently in everything. If you allow Newton to patent calculus, in theory he should be able to sue a physics professor who measures the time it takes for a mass to fall a meter under Earth's gravity. And if you don't allow him to sue for that then there is no use in issuing the patent, because anyone can construct a machine which operates under the laws of physics and allows the user to determine the answer to calculus problems using a combination of physical measurements and basic arithmetic without paying Newton.
You also allow people to take out rent-seeking patents like working out the equation that measures the maximum theoretical efficiency of a recently-published invention created by someone else and then patenting the math, thereby covering any highly efficient implementation without actually doing the work to implement the high-efficiency solution.
These are only a small fraction of the problems that arise if you allow maths or abstract ideas to be patented. You're saying that we need an objective measure for entitlement, but I don't recall that you have proposed one at all, much less one that would address all these issues. The courts haven't really either. But there's too much hand waving going on in both cases. By contrast, "no software patents" is very objective -- you just use something akin to the old printed matter rule. If a publisher would be liable to the patentee or not depending entirely on what words (or code) it publishes, the patent should not be issued. So let's hear your alternative objective measure for patentability that allows some maths to be patented without causing all this mess.
I am curious as to how they will determine what is and is not copyright-infringing content.
By shutting down access to everything, obviously. There is no other possible way to do it because there is no automated way to determine who the copyright owner for a piece of text is or whether it was properly licensed.
An attitude such as this would be saying there are no unknowns remaining because we can't think of anymore at the moment.
Nonsense. The problem is this: Let's say I come up with gravity drive for my spaceship, which nobody has ever thought of before. It's a completely different propulsion system than anybody has ever imagined. Turns electricity straight into thrust. Then I go build my spaceship without licensing any patents from anybody and... get sued, because I still need high capacity batteries, fuel cells, CO2 extractors, thermal shielding for the hull, etc. and all of that stuff is patented by the incumbent competitors.
The only way you could avoid the patents would be if you invented a radically new version of every single piece of the space ship. And that never happens. Not once in the history of time.
Of course, you do have two other options. First, you could give up trying to make a space ship and just make gravity drives and sell them to the space ship companies. Only problem is that you're selling to a cartel of space ship companies, and nobody else can enter the market for space ships for the same reason that you couldn't, which means the cartel has got you by the short hairs on the demand side and you aren't going to make any good margins.
So your last option is to sell out to one of the incumbents -- you sell your company for a few million bucks and retire to the beach. Which is great except that the incumbent who bought it is going to make billions, and if it weren't for the fact that they can sue you for making any kind of a space ship, you could have leveraged your first to market advantage into a multibillion dollar company of your own instead. More to the point, you could have added a competitor to a concentrated market instead of selling a patent to a company that is now destined to become a monopoly.
And so it is with software.
However, there is a blurring between the notions of copyright and patent as I have presented them, but that's only because the differentiation of them is too subtle for most people, especially politicians, who are mainly trained in obfuscation; for instance, if I recall correctly, it is a violation of copyright to reuse wholesale another author's novel's plot even when those ideas are transmitted much differently. In my opinion, then, the plot of a novel really falls under patents rather than copyrights.
So what you're saying is that you want to redefine what patent and copyright mean so that they mean something other than what everybody knows them to be under the existing law, and by redefining what a patent is so that it is something more akin to the right to make derivative works under copyright you can then say that software ought to be patentable. Don't be ridiculous. It remains the case that software should not be patentable if the patent system is to continue to work anything resembling the way it has in the past.
I think "who does do the work" is the tricky part, and the ones who we'll always win that judgment are the ones with guns and money.
Your statement is generic and irrelevant. Yes, people with money can use it to bully the little guy. How does that make it good policy to give the people with money thousands of software patents that they can use as additional ammunition in that fight?
The only question is: What ideas deserve to have their usage restricted? It all comes down to entitlement, and that is really what we need to measure.
I meant to address this before I clicked submit above, so I'll just have to make another post.
The trouble with software patents is that if you actually answer your question for software, you come up with something that looks a whole lot like copyright. What you want to do is prevent someone from just wholesale copying a competitor instantly without doing any of the work, but do so in a way that doesn't allow the mechanism to produce monopolies and oligopolies that can exclude a later entrant from the market who does do the work. In other words, independent invention should be a defense -- as it is for copyright but not for patent.
Moreover, the normal problem for the patent system which requires independent invention not to be a defense is highly attenuated in the case of software: You don't want someone who sees the invention to make insignificant changes and then claim they invented independently without doing any work. But copyright for software prevents verbatim copying, which requires independent implementation.
That evens things out between the first mover and the competitors, because the most time-consuming part of software development both for the first mover and for competitors is the implementation -- working out all the bugs and security vulnerabilities. And since that takes time for competitors to do, the first mover can use copyright to achieve a significant first-to-market advantage. In addition, since it requires the competitor to incur the same expenses, the competitor can't use a development cost advantage to undercut the first mover -- who by the time the competitor comes to market has recovered most of its development costs and can then reduce its own prices in response to the competition while still achieving a positive ROI. Which means that there is no case for software patents other than to thwart follow on innovation by entrenching the market position of incumbents.
Patents restrict the usage of ideas. Copyrights restrict the transmission of ideas.
Neither of those is right. Patents restrict the usage of inventions. Copyrights restrict the usage of expressions. "Abstract ideas" are the first thing on the Supreme Court's list of the three things you can't patent: Abstract ideas, laws of nature and natural phenomena. (Maths come in under #2.)
Everything is information. Everything is Mathematics.
Nonsense. Mathematics can be used to describe anything, but the thing isn't the math. A jet engine is described by F=ma. A piece of software that calculates the force exerted by a jet engine is F=ma.
It is most certainly a reason, contrary to your belief that they shouldn't have one.
"Because they want to" is not a reason. It is entirely circular. It leaves the question why they want to. And if the answer to "why do they want to?" is "because they want to" I think you can clearly see the loop.
So instead of the blanket "no reason not to" you have converted to "well, most of the time its a commercial reason"
No, what I'm saying is that if they have a commercial reason then they aren't a hobbyist. They're just a small commercial software developer who makes money through means other than software licensing.
You know that shareware and freeware are different, right?
Now explain how the distinction is relevant, or how my comment doesn't apply equally well to "freeware." For that matter, by all means let's see the huge list of noncommercial freeware that "predates the open source movement," keeping in mind that the open source movement dates back to the 70's.
Here is a small list of 102 freeware (none of them ever having been open source or commercial) games.
the freeware movement doesnt include any commercial shit at all.
Did you even look at that list? Let's just go through the first few items on it. Ace of Spades was written by the professional game programmer who wrote the Build engine for Duke Nukem 3D et al, and the voxel engine for the freeware game is open source. Ahriman's Prophecy is written by Amaranth Games, a commercial operation. Alien Swarm is by Valve, ditto. America's Army is by the US ARMY, not a hobbyist. Ancient Domains of Mystery is closed source because the developer was interested in "licensing the source to capable developers to form a commercial venture." You're not exactly helping yourself here.
Then there is no such thing as "true innovation" because everything builds on what came before. The first ever motorcar was not "true innovation" because it built on the carriages that preceded it. The first ever steam engine was not "true innovation" because it required man to know how to make fire, which was not new.
And the problem is that today, large companies have broad patents on the computer equivalent of "method of making fire" and "wheel-based transportation device" etc. So the little guy can't come along and produce the computer equivalent of the electric car because the incumbents have patents on wheels, window glass, electrical wires, etc.
Why the Hell does that petition look like it was written by a six year old with a learning disability?
The fact that they aren't fighting these patents from Microsoft (along with the others licensing them) is a good indication that they are viewed as valid patents
Where do people come up with logic like this?
People generally license patents when the cost of fighting the lawsuit plus the damages if you lose times the likelihood of losing exceeds the licensing cost. That can occur just as easily because the license fees are less than the litigation costs and public relations costs as because the company expects the patents to actually hold up.
And you're ignoring the possibility that Microsoft is back to its old tricks again, e.g. pay us a license for every Android device and we'll give you a big discount on WP7 licenses. Which costs the manufacturer nothing if the net Android license fees are less than the net WP7 discount, but unbalances the manufacturer's incentives for which phones to promote into Microsoft's favor and lets Microsoft trumpet the idea that they're making money from Android.
There is no fundamental difference between the Newcomen steam engine and Linux's latest execution scheduler.
There is no fundamental difference between Linux's latest execution scheduler and a chapter in The Art of C Programming.
The problem with software patents is that they are an attempt to patent ideas and mathematics rather than inventions. There are no physical constraints in software. The only constraints are mathematical. In consequence, there have only been two types of pure software patents: 1) Those so abstract and unconstrained by anything that they amount to an idea and not an invention (e.g. multi-touch gestures, one-click shopping), and 2) Those constrained by mathematics that are little more than naked attempts to patent the underlying mathematics (e.g. codec or encryption patents). Neither is supposed to be patentable.
So you use the example of the Linux execution scheduler. That is a piece of software. You would have to pick some aspect of it to patent. If there is some aspect which makes it particularly good at its function (perhaps it is O(1) and uses memory efficiently), you could try to patent what allows it to be efficient, but you would really be patenting the math behind it. You did not invent the math, you only discovered it. So let's get away from the mathematical constraints; but there are no other constraints in software, so you are merely left with an abstraction -- the idea of an execution scheduler. Something so broad that no one should hold a patent on it because the patent would cover any possible execution scheduler, regardless of how tenuous the relationship is to what was allegedly invented.
That is the same thing. Splitting it into separate transactions does not make it any less of a protection racket.
Let me spell it out for you. Let's say a company comes to you with two patents, one of which you aren't infringing and the other of which could be invalidated in court. The cost of vindicating yourself is $X/patent, after legal fees, wasted programmer time, marketing detriments, etc. They're asking for an aggregate licensing cost of $20X, so you go to court, win, and come out ahead, since $2X is less than $20X. And since everybody knows that is what would happen at the outset, they don't try it unless they have some legitimate patents that you're legitimately infringing.
Now let's say a company comes to you with fifty patents. The cost of vindicating yourself is still $X/patent, and they're still asking for an aggregate licensing cost of $20X, but now you would have to pay $50X to vindicate yourself in court. It costs more to win than to license, so you're coerced into paying the license fee completely regardless of whether you're infringing the patents and whether they could be invalidated.
The fact that you are still coerced into paying even if you aren't infringing any valid patents is what makes it a protection racket.
Because they don't want to?
That isn't a reason. You might as well say, "because I said so." There has to be a reason that they "want to," and the most likely reason is commercial advantage. Almost all of those old school shareware authors had some kind of profit-making scheme tied to the software, whether it was begging for donations, selling a version with more features, restricting the free version to noncommercial use and selling a commercial version, etc.
The idea that there might be some small number of people who want to give away software entirely altruistically but for some eccentric reason without the source code just seems like grasping at straws.
That makes no sense. How would releasing the source code increase piracy? The pirates have already cracked all of the product activation etc. even without having the source. And the vast, overwhelming majority of sales of Windows come bundled with new PCs. Is Dell going to start including pirated Windows with their PCs because Microsoft has released the source code? It's nonsense.
No, you hold the aircraft manufacturer liable because they're the one who put buggy software in an airplane.
Or, if you're an aircraft manufacturer and you want the person who developed the software to assume liability, you make them sign a contract to that effect before you pay them.