It doesn't SAY privacy (so you are interpreting this right to go beyond criminal prosecution), and in fact, the SCOTUS had to combine clauses in three or four amendments in the Griswold v. CT case to actually establish a right to privacy.
"I doubt it, Adam Smith was against patents and copyrights, except for a limited tyme period, instead he believed in selling a better product at a lower cost. He equated monopolies as a mercantile system and he was dedicated to defeating this system. He wanted to replace it with that Invisible hand, a free market where there was a voluntary exchange."
1) I didn't claim that he WOULD or WOULDN'T -- the key word was COULDN'T. 2) He wasn't against Patents and Copyright at all. This is incorrect. He didn't like them, but much like Thomas Jefferson, he accepted their usefulness and was in favor of granting them.
"No. I am trying to prevent you from making money from MY technology.
You mean the technology I developed INDEPENDENTLY. You may of put work into it but so did I. You and your patent however would say my efforts mean nothing."
Why did you recreate my work when you could more cheaply offer to license that work from me? Why didn't you look into it before undertaking your work? To determine if someone else was already undertaking similar work, or holding a patent. Seems inefficient to me. Also sounds like a case of tough-noogies. You have the opportunity to discover if I already hold a patent and license it -- it is your legal responsibility to either do so, or to be prepared to pay the costs at trial.
"Ever hear of Trade secrets? If you're invention is a trade secret it's already protected. Now how did that large company learn about it? Perhaps you didn't get a sign non disclosure agreement? Or did you but whoever violated it?"
I'm a small-time inventor. I work out of my garage, and I don't have a lawyer to draft an NDA for me. OR, maybe I got drunk at a bar and told someone what I was working on... or maybe I just started building and selling my widgets and the company in question takes it apart, sees how it works and makes there own without investing as much in development. Etc.
Trade secrets only apply to things that you are able to keep a secret... like the recipe for Coca-Cola. I can prevent the VP of Operations from selling that recipe to Pepsi, but if I publish it in a book, I cannot protect it anymore. If someone else figures out my recipe on their own, I cannot protect it.
"Maybe they build cheap ones that don't last long, then you can offer a higher quality product that last a long tyme. Kind of like Levi Strauss did in the 1800s."
Levi Strauss' jeans were patented -- or at least parts of them, like the rivets, that made them more durable and a better quality product.
"And you're saying the same thing with your patent. Because you got a patent my tyme and effort means nothing.
We're just going around in circles. Like you I supported patents at one tyme however someone who did a better job of explaining the problems than I can with patents convinced me otherwise, unfortunately I don't have the ability he had. So I think we should agree to disagree."
We're going around in circles because you are putting forth the preposterous notion that one who re-creates a patented work (and should have known that work was patented) ought to be compensated for work that was an infringement from the outset. That's like saying that I ought to pay you to trespass on my land because you spent three hours scaling the wall around my property.
For the sake of me not spending any more time during class lectures in this thread, I'll agree to disagree. But you should know: it is spelled "time."
You re-stated my assertion that Jefferson ultimately supported Patents, as if it was a rebuttal.
Anyway, are you SURE you agree with Adam Smith?
"Adam Smith has sometimes been caricatured as someone who saw no role for government in economic life. In fact, he believed that government had an important role to play. Like most modern believers in free markets, Smith believed that the government should enforce contracts and grant patents and copyrights to encourage inventions and new ideas." [cite]
The quotes that people are using to claim that Smith was in fact anti-patent are misleading. Adam Smith believed that patents were necessary to encourage innovation.
"Privacy is not intellectual property, I don't know how anyone can say it is."
I didn't... I was using it as a reference point to demonstrate that a right can be engendered in the language of the constitution without necessarily being literally written out.
"I also don't see how an idea can be property either, nor do I see how only one person can have the same idea. 'Sorry you can't have that idea because it's mine.'"
Is it possible for two people to both 'think of' War and Peace? Probably not. It is THAT sort of idea that is protected. NOT the common ideas like, "driving across town is quicker than walking..." These are ideas that require time and effort to develop. Even then... the published works of an economist, for example, don't protect the actual meaning of his idea, but rather the WAY he expresses it. Adam Smith couldn't prevent anyone else from thinking, or using his idea of the Invisible Hand, but he could prevent you from publishing the words he used to describe it.
So yes, two people can have the same idea, and both of them can often have their idea protected.
Patents serve a slightly different purpose. It is conceivable that two parties would come to the same means of producing a result at the same time. Rarely will they complete their work at the same time (or even really close). Does it not serve the purpose of expediency that the person who first completed their work ought to gain the right to produce it? A system that rewards the expedient party also provides for an efficient system where people planning to undertake research will be encouraged to discover what others might be working on, so as not to duplicate anyone else's work.
"you want to build something that requires my tech. to be incorporated -- and since it is inconvenient for you to pay me for it, you will take my work? By what right?
By the fact I came up with it independently. I stole nothing from you instead using my own mind I created something."
So now we are changing the hypo to one where you redevelop my technology on your own? If you were already aware of my technology, then this is highly unlikely. If you were not, then see above -- it would be inefficient for you to replicate my work, and you should rather seek an agreement where you could license the work I've already done. If I hear the Doors play "Light My Fire" and then sit down a week later and play the same tune on my organ, even if I never looked at any notes/tablature for the song, I cannot call it "Walking on Sunshine" and declare it a product of my own mind -- even if I add an extra verse, it is still a derivative of someone else's efforts.
"Nobody is stopping you from trying to make money with your technology but you ARE trying to prevent me from doing the same." No. I am trying to prevent you from making money from MY technology.
"In a freemarket, and the Father of free market capitalism Adam Smith opposed patents, everyone would have the same chances of making money off an invention. If someone other than the inventor could make it better, or cheaper, (s)he should be able to. That, competition, is the essence of a free market."
That is wonderful, but Adam Smith may actually be in the wrong here. A lack of patent rights creates a barrier to entry that actually encourages the monopolies that Smith thought he was speaking out against. A Patent monopoly is ultimately limited, and while it may help a large yet creative corporation to grow, it also protects the small time inventor from having his work taken by the large corporation and sold to the public without need to compensate the small time inventor. If I develop a product over two years, it will surely cost me more to bring it to market, than it would cost a large company that simply copied my work.
Meanwhile, part of the patent process is full-disclosure of my technology. When the patent expires, everyone knows exactly how it works. It is a trade-off that benefits society.
Well... you wouldn't pre-judge it. For an owner to enforce a patent claim in that system, they would have to factually prove the financial figures at trial.
"I must be blind, no matter how many tymes I read or search the text of the 4th Amendment I don't see anywhere in it where "intellectual" never mind "intellectual property" is mentioned once. Nor do I see "intellectual" anywhere else in the USA Constitution."
Do a quick scan for your right to privacy in there... when you find it, let me know. Just because it doesn't say it, doesn't mean that the SCOTUS doesn't see it there. Anyway, the IP relation to the 4th amendment is more in terms of it being property, and the 4th amendment is designed to protect your property rights. Congress has declared that a patent is a form of personal property (like a car), and the invention it covers is therefore protectable as such. The 4th Amendment makes that property right difficult to revoke. Of course, it works better when you consider it alongside the 14th Amendment (which I may have neglected to mention?), together they establish the concept of due process -- which must be applied to ALL takings of property for them to be legitimate.
"2) Patents can be a) licensed and b) transferred -- if YOU want to develop a product that derives from MY technology, you need only approach me with your idea and come to terms with me on a royalty for your use of my patent.
Or you can compleatly refuse and leave me with nothing. However without a patent then anyone else could make improvements without your approval."
Right. I can refuse, but if I do not have the resources to pursue a particular development on my own, and you wish to fund it, there would be plenty of incentive for me to work out a royalty deal with you. And hey, without real property rights, anyone else could build a Starbucks in your garage. It'd be awfully convenient for your neighbors... you won't mind, right?
I think it's the "without your approval" part that gets at me. You didn't develop my technology, but you want to build something that requires my tech. to be incorporated -- and since it is inconvenient for you to pay me for it, you will take my work? By what right? Is my time and effort of no value? Am I to work for no gain? Without my technology your technology would be impossible, and yet you would profit from the combined technologies fully without compensating me for my work?
Would you like it if your boss stopped paying you, but demanded that you still work 40 hours per week?
"You can be done for trespass, but not for breathing. You own the space, not the air."
In theory, you could trespass my land by purposely polluting my air (of course, it IS just a theory. Courts invoke "policy" to prevent that theory from being useful).
"My point is that someone can be a capitalist and oppose patents on software. Since you brought in a moral angle (the charge of "socialism") concerning how a society should run its economy, I thought that it was appropriate to show that there was a moral foundation that a capitalist could reasonably adhere to and oppose software patents."
Yes, and someone can be a pro-life Democrat. Ultimately they are all labels. However, I would argue that capitalism does not necessarily equate to free-markets, and that in practice, industry/corporations prefer to avoid free markets. There IS a free market/libertarian argument against patents. I don't agree with it.
"Misdirections like yours here probably don't work in a courtroom if the other guy's lawyer is any good, BTW." Dude... a good lawyer is especially good at misdirections;-)
Perhaps a decent duration would be, "the amount of time it takes to recoup the cost of development plus xx years."
That way, cheaper technologies would expire quicker, while more expensive developments would be given a more appropriate amount of time to recoup their cost. The xx years would be rather short, but long enough to encourage development, through the promise of profit. Five years, maybe.
Of course, you can't make such a rule retroactive, for a number of reasons.
Ultimately the Patent system is a legal construct designed for economic convenience. HOWEVER -- once those property rights have been created and conferred, a moral right to them develops. Who are we to tell you that you have something (the right to something) and then take it away?
You would have to apply Due Process to the whole thing, although, I can see a loophole where the courts could (and should) declare that IP that is not being used by its owner and it doesn't look like there is any intention to use it, has no actual value to the owner, and damages would either not be recoverable, or be limited to some token amount (like $1). There is plenty of common-law support for a decision like this, however, I'm not sure what the statutory requirements would be.
IP rights are not very analogous to chattels (your wallet, car, computer...), but they DO operate in a manner that is very comparable to real property, IMHO. I do believe that there is a moral right to IP, however, but I am willing to concede that not all ideas are necessarily IP, and I also will concede that it ought to be the owner of the IP's responsibility to maintain his possession -- by defending it in court, and also by acting upon those rights (distributing Copyrighted work in some manner, producing tech. protected by patents, actually using a trademark to do business, etc), or allowing someone else to do so (via licensing/whatever).
In respect to his argument I think that there is perhaps a viable debate to limit the scope of software patents -- but I still believe that the existence of patent rights in software is not inherently bad.
What you describe is Natural Law theory, the opposing idea is Positive law, which accepts law as a human construct that isn't based on some moral premise that needs to be discovered. In a common law system, everything and anything can and often is, property. Referring to Air: in a common law system you own the rights to the air above your land and all the dirt/rocks/lava/oil below as well.
In other words, I don't need to prove that patents are naturally ANYTHING. I can very easily prove that they are legally property, and therefore, they ARE property.
The practical use of software isn't the reading of source code. The practical use of software is the application and the instructions it gives the hardware.
"The key point here is that patents are all about use. This is a fundamental failure of how the patent system is being abused now. If you come up with an idea, patent it, and then never use it for anything, essentially all you've done is taken an idea that existed in the space of "ideas that might be used for the betterment of the world" and erased it for the duration of the patent."
Perhaps the USPTO ought to revert to Jefferson's practice of asking to see a working model of whatever the patent is for? This might be something worth contacting your congressman about.
"ou really ought to read the Constitution before you comment on it, you know. It only grants Congress the power (though not the requirement) to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It in no way mentions "intellectual property"."
Oh, I've read it. I have also read any number of Supreme Court decisions that interpret that and related aspects of the Constitution. The US Constitution is a living animal. Lots of things that don't necessarily compute as "property" are called such by the Supreme Court, on a Constitutional basis. One of these things is IP. You can play games with the exact wording all you want, but the passage you quote gave the right to create Intellectual Property as we know it, AND, once that right has been granted it becomes a PROPERTY RIGHT in the same vein as the land you live on. Property rights cannot be revoked by the Government without Due Process -- which is where the 4th Amendment comes in... etc.
"The authorized copyrights and patents are nothing like land deeds, which are 1) issued by states, 2) perpetual, 3) issuable to anyone, not just "authors and inventors" (I didn't create the land my house is on, after all) and 4) not are required to promote the public good. This is because the framers had the good common sense to understand that ideas are not like physical property."
#1 is not really correct -- maybe a piece of paper is issued by the state government giving you deed to the land, BUT, the RIGHTS to that land are protected by the Federal Government in the 4th and 14th Amendments.
#3 is not entirely correct -- gaining land possession through squatters rights is a parallel to "authors and inventors" (you build on the land and live there and it becomes yours). Besides, the IP rights are transferrable.
#4 is entirely false -- while the constitution may not describe real property as "for the public good," they also certainly didn't feel that it was necessary to do so. It was to be understood. They went out of their way to protect those property rights through the various due process procedures mentioned. Additionally, (once again) the Peruvian economist Hernando de Soto writes extensibly about how the public good is served by strong protection of property rights.
Nonetheless, the parallel isn't really to be drawn on a direct basis -- the similarities are in what YOUR RIGHTS to the property are designed (and do) accomplish (and the means for those rights to be sold, leased, shared, etc.).
Jefferson may not have believed that Ideas could be property, but he did support the concept of Patent Rights for the same reasons that I do: to encourage invention through financial incentive. "Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that "it had given spring to invention beyond my conception. " (cited)
As for Dowling, I would mostly agree with the decision in that case. Theft, in regard to copyright and other forms of IP would usually occur when someone else undertook an enterprise to PROFIT from your IP. The rights are not related to the physical media that may contain the IP, but rather to the idea itself. From your own link: "Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." As I've said, the SCOTUS recognizes IP as property.
In this case, they found that an illegally-made copy of a copyrighted work doesn't equate to run-of-the-mill theft. The man, Dowling was convicted of multiple counts of interstate transportation of stolen property. This was overturned on appeal (obviously) on the grounds that the copyright infringement did not equate to run-of-the-mill theft or conversion (most likely because the
"ou really ought to read the Constitution before you comment on it, you know. It only grants Congress the power (though not the requirement) to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It in no way mentions "intellectual property"."
Oh, I've read it. I have also read any number of Supreme Court decisions that interpret that and related aspects of the Constitution. The US Constitution is a living animal. Lots of things that don't necessarily compute as "property" are called such by the Supreme Court, on a Constitutional basis. One of these things is IP. You can play games with the exact wording all you want, but the passage you quote gave the right to create Intellectual Property as we know it, AND, once that right has been granted it becomes a PROPERTY RIGHT in the same vein as the land you live on. Property rights cannot be revoked by the Government without Due Process -- which is where the 4th Amendment comes in... etc.
"The authorized copyrights and patents are nothing like land deeds, which are 1) issued by states, 2) perpetual, 3) issuable to anyone, not just "authors and inventors" (I didn't create the land my house is on, after all) and 4) not are required to promote the public good. This is because the framers had the good common sense to understand that ideas are not like physical property."
#1 is not really correct -- maybe a piece of paper is issued by the state government giving you deed to the land, BUT, the RIGHTS to that land are protected by the Federal Government in the 4th and 14th Amendments.
#3 is not entirely correct -- gaining land possession through squatters rights is a parallel to "authors and inventors" (you build on the land and live there and it becomes yours). Besides, the IP rights are transferrable.
#4 is entirely false -- while the constitution may not describe real property as "for the public good," they also certainly didn't feel that it was necessary to do so. It was to be understood. They went out of their way to protect those property rights through the various due process procedures mentioned. Additionally, (once again) the Peruvian economist Hernando de Soto writes extensibly about how the public good is served by strong protection of property rights.
Nonetheless, the parallel isn't really to be drawn on a direct basis -- the similarities are in what YOUR RIGHTS to the property are designed (and do) accomplish (and the means for those rights to be sold, leased, shared, etc.).
Jefferson may not have believed that Ideas could be property, but he did support the concept of Patent Rights for the same reasons that I do: to encourage invention through financial incentive. "Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that "it had given spring to invention beyond my conception. " (cited)
As for Dowling, I would mostly agree with the decision in that case. Theft, in regard to copyright and other forms of IP would usually occur when someone else undertook an enterprise to PROFIT from your IP. The rights are not related to the physical media that may contain the IP, but rather to the idea itself. From your own link: "Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." As I've said, the SCOTUS recognizes IP as property.
In this case, they found that an illegally-made copy of a copyrighted work doesn't equate to run-of-the-mill theft. The man, Dowling was convicted of multiple counts of interstate transportation of stolen property. This was overturned on appeal (obviously) on the grounds that the copyright infringement did not equate to run-of-the-mill theft or conversion (most likely because the copyright owner was never actually dispossessed of those r
"It does not follow at all, since ideas are a very different thing than land. You distort the issue by using the term "property" to refer to ideas."
They are different. Except in the eyes of the law and the United States constitution. Courts in this country, and almost anywhere in the first-world will support the definition of IDEAS as PROPERTY.
http://en.wikipedia.org/wiki/Socialism "Socialism refers to a broad array of doctrines or political movements that envisage a socio-economic system in which property and the distribution of wealth are subject to control by the community[1] for the purposes of increasing social and economic equality and cooperation. This control may be either direct--exercised through popular collectives such as workers' councils--or indirect--exercised on behalf of the people by the state."
The means of production CAN be owned by the government in a socialist system, but essentially any system where wealth is re-distributed by government power is Socialism.
I am not a troll because you don't agree with me.
And I retract my statement that the Nobel in Economics is awarded by the Central Bank, I was under the impression that it was (and in a way, it is, it just isn't voted on by them -- fine). I stand by my comments regarding Software Patents however.
"1) Lack of exclusivity. One user of intellectual property does not interfere with another."
Well, we can all plow your farm... I mean hell, you can't use every inch of it, right? Property rights aren't about USE, they are about TAKING. In countries without property rights, the government will often come and TAKE from its citizens, properties that are valuable for its purposes.
It is possible for you to TAKE my IP as well, although it obviously occurs in a more abstract way.
"2) Less limited resource -- with few exceptions, no one is making more land. New IP is created all the time" Once again, it is about TAKING. I invest in property and improve upon that property because that property is mine. I have incentive to build a house on an empty lot, because that lot is more valuable with a house on it. In this sense, REAL property can be created. If I buy your house, and build a skyscraper on top of it, I have created more space and more property.
Any and all creation or improvement of property -- real or intellectual is discouraged in a system where rights to that property are not respected, and there is little or no property incentive. In the third world, people still farm the land, and in an IP/Patent-less country people would still create IP, however -- as I described in my earlier hypo -- the IP created will be limited to shorter, less costly products. Just as the third world farmer dare-not build a hospital on his land instead of farming -- lest it be taken from him.
"a whole system of rights-of-way has been developed to prevent my use of my real property from interfering with your use of your real property, even if my real property stands between yours and some shared resource you need. With IP, it's the opposite -- your patent on your invention can easily prevent me from implementing mine."
It is called a royalty. If you want to build a structure on my land, you can lease that land from me. If you want to build a technology on top of my technology, you can pay me for the right to do so.
"Not to rain on your parade but you seem pretty biased or to be more accurate parroting certain right-wing dogmas." Why because I called Sweden's Central bank socialist? Call them up, they'll agree with me. Or are you referring to my support of property rights? Right Wing dogma? It's a constitutional right to property -- 4th Amendment (check it out).
"Intellectual property doesn't exist. It is an umbrella term at best, but mostly it is a word designed to mislead and cause confusion."
Um. Ok, in the most abstract sense, yes, IP doesn't exist. In the printed form, it exists. In the physical form, it's results exist, but the concept is that IP rights are to protect your ideas. It is an umbrella that covers a number of areas like Trademarks, Copyrights, Patents, Trade Secrets... etc. All of which share a number of very similar characteristics. In this case, I am referring to Patents... The concept behind IP is that the creations of your mind belong to you, to dispose of as you please. For practical purposes, there are some limits on the length of validity of MOST IP.
"The value created by creating and protecting patents and to a lesser extent copyrights is seriously outweighed by the bad effects of giving a monopoly on specific information or methods to private companies or persons."
It isn't a monopoly on information. It is a monopoly on the products of my work. I cannot patent the knowledge that water turns into a gas when heated, but I CAN patent a technology that heats that water more efficiently. I would have little incentive to develop my water-heating technology without a patent, as it would take me a lot of time, and I would likely need to invest money to purchase equipment. Without Patents, my technology (if marketable) would surely be recreated by some large corporation who would have no reason to pay me a royalty.
Software isn't much different. Now we are talking about an algorithm, but how is it much different from the water-heating device?
The patent rewards it's creator, and encourages creation by ensuring the ability of the creator to earn money from his creation.
In regards to the Nobel winner's assertion that software patents reduce or restrict creation, I think he is wholly and completely wrong on this matter. All technologies are in some way derived from others, whether software or not, and mankind has (thanks to property rights) been able to develop quite an expansive portfolio of technologies. Here are a few reasons why he is wrong:
1) If I have a software patent, I would certainly be interested in developing derivative technologies of my OWN product. 2) Patents can be a) licensed and b) transferred -- if YOU want to develop a product that derives from MY technology, you need only approach me with your idea and come to terms with me on a royalty for your use of my patent.
The example I'll give is this: You are a software developer working on a revolutionary new program. The technology you are creating in software will revolutionize the way we use our computers. You quit your job two years ago (to work on this project full time), and have spent all of your life savings keeping yourself fed, clothed, and your rent paid, as well as investing in computer equipment that allows you to create, test, and refine your work. When you finish your work, you have no money, but your product is amazing. You release that product to the world on January 1st, 2008.
By March 2008, Microsoft, with their vast wealth and thousands of employees has replicated your techniques and built their own software that works in exactly the same way as your own. They also release this program to the world, for half of the price you are able to offer it for. They invest a ton of money into a large-scale marketing campaign, and corner the market for this technology easily. They offer you no compensation for your work, and since your sales are minimal, you are forced to declare bankruptcy and go out of business.
Software is written work? When was the last time your uncle sat down and READ Windows? Software is in fact more similar to a microwave, than it is to the collective works of Chaucer. The microwave, like software, performs an action. The works of Chaucer do not.
The fact that my post was moderated as "troll" is in-fact the reason why I rarely post here anymore. Meta-moderation apparently doesn't work, since people -1 posts that they disagree with.
Slashdot is a community with no intellectual freedom.
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Twisting? No sir. I am presenting my viewpoint.
It doesn't SAY privacy (so you are interpreting this right to go beyond criminal prosecution), and in fact, the SCOTUS had to combine clauses in three or four amendments in the Griswold v. CT case to actually establish a right to privacy.
"I doubt it, Adam Smith was against patents and copyrights, except for a limited tyme period, instead he believed in selling a better product at a lower cost. He equated monopolies as a mercantile system and he was dedicated to defeating this system. He wanted to replace it with that Invisible hand, a free market where there was a voluntary exchange."
1) I didn't claim that he WOULD or WOULDN'T -- the key word was COULDN'T.
2) He wasn't against Patents and Copyright at all. This is incorrect. He didn't like them, but much like Thomas Jefferson, he accepted their usefulness and was in favor of granting them.
http://adamsmithslostlegacy.com/2006/08/wretched-spirit-of-inaccurate.html
http://adamsmithslostlegacy.com/2005/10/patents-are-monopolies.html
"No. I am trying to prevent you from making money from MY technology.
You mean the technology I developed INDEPENDENTLY. You may of put work into it but so did I. You and your patent however would say my efforts mean nothing."
Why did you recreate my work when you could more cheaply offer to license that work from me? Why didn't you look into it before undertaking your work? To determine if someone else was already undertaking similar work, or holding a patent. Seems inefficient to me. Also sounds like a case of tough-noogies. You have the opportunity to discover if I already hold a patent and license it -- it is your legal responsibility to either do so, or to be prepared to pay the costs at trial.
"Ever hear of Trade secrets? If you're invention is a trade secret it's already protected. Now how did that large company learn about it? Perhaps you didn't get a sign non disclosure agreement? Or did you but whoever violated it?"
I'm a small-time inventor. I work out of my garage, and I don't have a lawyer to draft an NDA for me. OR, maybe I got drunk at a bar and told someone what I was working on... or maybe I just started building and selling my widgets and the company in question takes it apart, sees how it works and makes there own without investing as much in development. Etc.
Trade secrets only apply to things that you are able to keep a secret... like the recipe for Coca-Cola. I can prevent the VP of Operations from selling that recipe to Pepsi, but if I publish it in a book, I cannot protect it anymore. If someone else figures out my recipe on their own, I cannot protect it.
"Maybe they build cheap ones that don't last long, then you can offer a higher quality product that last a long tyme. Kind of like Levi Strauss did in the 1800s."
Levi Strauss' jeans were patented -- or at least parts of them, like the rivets, that made them more durable and a better quality product.
"And you're saying the same thing with your patent. Because you got a patent my tyme and effort means nothing.
We're just going around in circles. Like you I supported patents at one tyme however someone who did a better job of explaining the problems than I can with patents convinced me otherwise, unfortunately I don't have the ability he had. So I think we should agree to disagree."
We're going around in circles because you are putting forth the preposterous notion that one who re-creates a patented work (and should have known that work was patented) ought to be compensated for work that was an infringement from the outset. That's like saying that I ought to pay you to trespass on my land because you spent three hours scaling the wall around my property.
For the sake of me not spending any more time during class lectures in this thread, I'll agree to disagree. But you should know: it is spelled "time."
You re-stated my assertion that Jefferson ultimately supported Patents, as if it was a rebuttal.
Anyway, are you SURE you agree with Adam Smith?
"Adam Smith has sometimes been caricatured as someone who saw no role for government in economic life. In fact, he believed that government had an important role to play. Like most modern believers in free markets, Smith believed that the government should enforce contracts and grant patents and copyrights to encourage inventions and new ideas." [cite]
The quotes that people are using to claim that Smith was in fact anti-patent are misleading. Adam Smith believed that patents were necessary to encourage innovation.
"Privacy is not intellectual property, I don't know how anyone can say it is."
I didn't... I was using it as a reference point to demonstrate that a right can be engendered in the language of the constitution without necessarily being literally written out.
"I also don't see how an idea can be property either, nor do I see how only one person can have the same idea. 'Sorry you can't have that idea because it's mine.'"
Is it possible for two people to both 'think of' War and Peace? Probably not. It is THAT sort of idea that is protected. NOT the common ideas like, "driving across town is quicker than walking..." These are ideas that require time and effort to develop. Even then... the published works of an economist, for example, don't protect the actual meaning of his idea, but rather the WAY he expresses it. Adam Smith couldn't prevent anyone else from thinking, or using his idea of the Invisible Hand, but he could prevent you from publishing the words he used to describe it.
So yes, two people can have the same idea, and both of them can often have their idea protected.
Patents serve a slightly different purpose. It is conceivable that two parties would come to the same means of producing a result at the same time. Rarely will they complete their work at the same time (or even really close). Does it not serve the purpose of expediency that the person who first completed their work ought to gain the right to produce it? A system that rewards the expedient party also provides for an efficient system where people planning to undertake research will be encouraged to discover what others might be working on, so as not to duplicate anyone else's work.
"you want to build something that requires my tech. to be incorporated -- and since it is inconvenient for you to pay me for it, you will take my work? By what right?
By the fact I came up with it independently. I stole nothing from you instead using my own mind I created something."
So now we are changing the hypo to one where you redevelop my technology on your own? If you were already aware of my technology, then this is highly unlikely. If you were not, then see above -- it would be inefficient for you to replicate my work, and you should rather seek an agreement where you could license the work I've already done. If I hear the Doors play "Light My Fire" and then sit down a week later and play the same tune on my organ, even if I never looked at any notes/tablature for the song, I cannot call it "Walking on Sunshine" and declare it a product of my own mind -- even if I add an extra verse, it is still a derivative of someone else's efforts.
"Nobody is stopping you from trying to make money with your technology but you ARE trying to prevent me from doing the same."
No. I am trying to prevent you from making money from MY technology.
"In a freemarket, and the Father of free market capitalism Adam Smith opposed patents, everyone would have the same chances of making money off an invention. If someone other than the inventor could make it better, or cheaper, (s)he should be able to. That, competition, is the essence of a free market."
That is wonderful, but Adam Smith may actually be in the wrong here. A lack of patent rights creates a barrier to entry that actually encourages the monopolies that Smith thought he was speaking out against. A Patent monopoly is ultimately limited, and while it may help a large yet creative corporation to grow, it also protects the small time inventor from having his work taken by the large corporation and sold to the public without need to compensate the small time inventor. If I develop a product over two years, it will surely cost me more to bring it to market, than it would cost a large company that simply copied my work.
Meanwhile, part of the patent process is full-disclosure of my technology. When the patent expires, everyone knows exactly how it works. It is a trade-off that benefits society.
"Sure your tyme and effort is of value but so is
oh? So, you agree then?
Well... you wouldn't pre-judge it. For an owner to enforce a patent claim in that system, they would have to factually prove the financial figures at trial.
"I must be blind, no matter how many tymes I read or search the text of the 4th Amendment I don't see anywhere in it where "intellectual" never mind "intellectual property" is mentioned once. Nor do I see "intellectual" anywhere else in the USA Constitution."
Do a quick scan for your right to privacy in there... when you find it, let me know. Just because it doesn't say it, doesn't mean that the SCOTUS doesn't see it there. Anyway, the IP relation to the 4th amendment is more in terms of it being property, and the 4th amendment is designed to protect your property rights. Congress has declared that a patent is a form of personal property (like a car), and the invention it covers is therefore protectable as such. The 4th Amendment makes that property right difficult to revoke. Of course, it works better when you consider it alongside the 14th Amendment (which I may have neglected to mention?), together they establish the concept of due process -- which must be applied to ALL takings of property for them to be legitimate.
"2) Patents can be a) licensed and b) transferred -- if YOU want to develop a product that derives from MY technology, you need only approach me with your idea and come to terms with me on a royalty for your use of my patent.
Or you can compleatly refuse and leave me with nothing. However without a patent then anyone else could make improvements without your approval."
Right. I can refuse, but if I do not have the resources to pursue a particular development on my own, and you wish to fund it, there would be plenty of incentive for me to work out a royalty deal with you. And hey, without real property rights, anyone else could build a Starbucks in your garage. It'd be awfully convenient for your neighbors... you won't mind, right?
I think it's the "without your approval" part that gets at me. You didn't develop my technology, but you want to build something that requires my tech. to be incorporated -- and since it is inconvenient for you to pay me for it, you will take my work? By what right? Is my time and effort of no value? Am I to work for no gain? Without my technology your technology would be impossible, and yet you would profit from the combined technologies fully without compensating me for my work?
Would you like it if your boss stopped paying you, but demanded that you still work 40 hours per week?
"You can be done for trespass, but not for breathing. You own the space, not the air."
;-)
In theory, you could trespass my land by purposely polluting my air (of course, it IS just a theory. Courts invoke "policy" to prevent that theory from being useful).
"My point is that someone can be a capitalist and oppose patents on software. Since you brought in a moral angle (the charge of "socialism") concerning how a society should run its economy, I thought that it was appropriate to show that there was a moral foundation that a capitalist could reasonably adhere to and oppose software patents."
Yes, and someone can be a pro-life Democrat. Ultimately they are all labels. However, I would argue that capitalism does not necessarily equate to free-markets, and that in practice, industry/corporations prefer to avoid free markets. There IS a free market/libertarian argument against patents. I don't agree with it.
"Misdirections like yours here probably don't work in a courtroom if the other guy's lawyer is any good, BTW."
Dude... a good lawyer is especially good at misdirections
Perhaps a decent duration would be, "the amount of time it takes to recoup the cost of development plus xx years."
That way, cheaper technologies would expire quicker, while more expensive developments would be given a more appropriate amount of time to recoup their cost. The xx years would be rather short, but long enough to encourage development, through the promise of profit. Five years, maybe.
Of course, you can't make such a rule retroactive, for a number of reasons.
Ultimately the Patent system is a legal construct designed for economic convenience. HOWEVER -- once those property rights have been created and conferred, a moral right to them develops. Who are we to tell you that you have something (the right to something) and then take it away?
You would have to apply Due Process to the whole thing, although, I can see a loophole where the courts could (and should) declare that IP that is not being used by its owner and it doesn't look like there is any intention to use it, has no actual value to the owner, and damages would either not be recoverable, or be limited to some token amount (like $1). There is plenty of common-law support for a decision like this, however, I'm not sure what the statutory requirements would be.
IP rights are not very analogous to chattels (your wallet, car, computer...), but they DO operate in a manner that is very comparable to real property, IMHO. I do believe that there is a moral right to IP, however, but I am willing to concede that not all ideas are necessarily IP, and I also will concede that it ought to be the owner of the IP's responsibility to maintain his possession -- by defending it in court, and also by acting upon those rights (distributing Copyrighted work in some manner, producing tech. protected by patents, actually using a trademark to do business, etc), or allowing someone else to do so (via licensing/whatever).
In respect to his argument I think that there is perhaps a viable debate to limit the scope of software patents -- but I still believe that the existence of patent rights in software is not inherently bad.
What you describe is Natural Law theory, the opposing idea is Positive law, which accepts law as a human construct that isn't based on some moral premise that needs to be discovered. In a common law system, everything and anything can and often is, property. Referring to Air: in a common law system you own the rights to the air above your land and all the dirt/rocks/lava/oil below as well.
In other words, I don't need to prove that patents are naturally ANYTHING. I can very easily prove that they are legally property, and therefore, they ARE property.
The practical use of software isn't the reading of source code. The practical use of software is the application and the instructions it gives the hardware.
AH.. but this is why you have to defend your property rights in court...
"The key point here is that patents are all about use. This is a fundamental failure of how the patent system is being abused now. If you come up with an idea, patent it, and then never use it for anything, essentially all you've done is taken an idea that existed in the space of "ideas that might be used for the betterment of the world" and erased it for the duration of the patent."
Perhaps the USPTO ought to revert to Jefferson's practice of asking to see a working model of whatever the patent is for? This might be something worth contacting your congressman about.
"ou really ought to read the Constitution before you comment on it, you know. It only grants Congress the power (though not the requirement) to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It in no way mentions "intellectual property"."
Oh, I've read it. I have also read any number of Supreme Court decisions that interpret that and related aspects of the Constitution. The US Constitution is a living animal. Lots of things that don't necessarily compute as "property" are called such by the Supreme Court, on a Constitutional basis. One of these things is IP. You can play games with the exact wording all you want, but the passage you quote gave the right to create Intellectual Property as we know it, AND, once that right has been granted it becomes a PROPERTY RIGHT in the same vein as the land you live on. Property rights cannot be revoked by the Government without Due Process -- which is where the 4th Amendment comes in... etc.
"The authorized copyrights and patents are nothing like land deeds, which are 1) issued by states, 2) perpetual, 3) issuable to anyone, not just "authors and inventors" (I didn't create the land my house is on, after all) and 4) not are required to promote the public good. This is because the framers had the good common sense to understand that ideas are not like physical property."
#1 is not really correct -- maybe a piece of paper is issued by the state government giving you deed to the land, BUT, the RIGHTS to that land are protected by the Federal Government in the 4th and 14th Amendments.
#3 is not entirely correct -- gaining land possession through squatters rights is a parallel to "authors and inventors" (you build on the land and live there and it becomes yours). Besides, the IP rights are transferrable.
#4 is entirely false -- while the constitution may not describe real property as "for the public good," they also certainly didn't feel that it was necessary to do so. It was to be understood. They went out of their way to protect those property rights through the various due process procedures mentioned. Additionally, (once again) the Peruvian economist Hernando de Soto writes extensibly about how the public good is served by strong protection of property rights.
Nonetheless, the parallel isn't really to be drawn on a direct basis -- the similarities are in what YOUR RIGHTS to the property are designed (and do) accomplish (and the means for those rights to be sold, leased, shared, etc.).
Jefferson may not have believed that Ideas could be property, but he did support the concept of Patent Rights for the same reasons that I do: to encourage invention through financial incentive. "Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that "it had given spring to invention beyond my conception. " (cited)
As for Dowling, I would mostly agree with the decision in that case. Theft, in regard to copyright and other forms of IP would usually occur when someone else undertook an enterprise to PROFIT from your IP. The rights are not related to the physical media that may contain the IP, but rather to the idea itself. From your own link: "Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." As I've said, the SCOTUS recognizes IP as property.
In this case, they found that an illegally-made copy of a copyrighted work doesn't equate to run-of-the-mill theft. The man, Dowling was convicted of multiple counts of interstate transportation of stolen property. This was overturned on appeal (obviously) on the grounds that the copyright infringement did not equate to run-of-the-mill theft or conversion (most likely because the
"ou really ought to read the Constitution before you comment on it, you know. It only grants Congress the power (though not the requirement) to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It in no way mentions "intellectual property"." Oh, I've read it. I have also read any number of Supreme Court decisions that interpret that and related aspects of the Constitution. The US Constitution is a living animal. Lots of things that don't necessarily compute as "property" are called such by the Supreme Court, on a Constitutional basis. One of these things is IP. You can play games with the exact wording all you want, but the passage you quote gave the right to create Intellectual Property as we know it, AND, once that right has been granted it becomes a PROPERTY RIGHT in the same vein as the land you live on. Property rights cannot be revoked by the Government without Due Process -- which is where the 4th Amendment comes in... etc. "The authorized copyrights and patents are nothing like land deeds, which are 1) issued by states, 2) perpetual, 3) issuable to anyone, not just "authors and inventors" (I didn't create the land my house is on, after all) and 4) not are required to promote the public good. This is because the framers had the good common sense to understand that ideas are not like physical property." #1 is not really correct -- maybe a piece of paper is issued by the state government giving you deed to the land, BUT, the RIGHTS to that land are protected by the Federal Government in the 4th and 14th Amendments. #3 is not entirely correct -- gaining land possession through squatters rights is a parallel to "authors and inventors" (you build on the land and live there and it becomes yours). Besides, the IP rights are transferrable. #4 is entirely false -- while the constitution may not describe real property as "for the public good," they also certainly didn't feel that it was necessary to do so. It was to be understood. They went out of their way to protect those property rights through the various due process procedures mentioned. Additionally, (once again) the Peruvian economist Hernando de Soto writes extensibly about how the public good is served by strong protection of property rights. Nonetheless, the parallel isn't really to be drawn on a direct basis -- the similarities are in what YOUR RIGHTS to the property are designed (and do) accomplish (and the means for those rights to be sold, leased, shared, etc.). Jefferson may not have believed that Ideas could be property, but he did support the concept of Patent Rights for the same reasons that I do: to encourage invention through financial incentive. "Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that "it had given spring to invention beyond my conception. " (cited) As for Dowling, I would mostly agree with the decision in that case. Theft, in regard to copyright and other forms of IP would usually occur when someone else undertook an enterprise to PROFIT from your IP. The rights are not related to the physical media that may contain the IP, but rather to the idea itself. From your own link: "Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." As I've said, the SCOTUS recognizes IP as property. In this case, they found that an illegally-made copy of a copyrighted work doesn't equate to run-of-the-mill theft. The man, Dowling was convicted of multiple counts of interstate transportation of stolen property. This was overturned on appeal (obviously) on the grounds that the copyright infringement did not equate to run-of-the-mill theft or conversion (most likely because the copyright owner was never actually dispossessed of those r
noted. Thanks
"It does not follow at all, since ideas are a very different thing than land. You distort the issue by using the term "property" to refer to ideas."
They are different. Except in the eyes of the law and the United States constitution. Courts in this country, and almost anywhere in the first-world will support the definition of IDEAS as PROPERTY.
It is not a distortion, but rather, a legal fact.
http://en.wikipedia.org/wiki/Socialism
"Socialism refers to a broad array of doctrines or political movements that envisage a socio-economic system in which property and the distribution of wealth are subject to control by the community[1] for the purposes of increasing social and economic equality and cooperation. This control may be either direct--exercised through popular collectives such as workers' councils--or indirect--exercised on behalf of the people by the state."
The means of production CAN be owned by the government in a socialist system, but essentially any system where wealth is re-distributed by government power is Socialism.
I am not a troll because you don't agree with me.
And I retract my statement that the Nobel in Economics is awarded by the Central Bank, I was under the impression that it was (and in a way, it is, it just isn't voted on by them -- fine). I stand by my comments regarding Software Patents however.
"1) Lack of exclusivity. One user of intellectual property does not interfere with another."
Well, we can all plow your farm... I mean hell, you can't use every inch of it, right?
Property rights aren't about USE, they are about TAKING. In countries without property rights, the government will often come and TAKE from its citizens, properties that are valuable for its purposes.
It is possible for you to TAKE my IP as well, although it obviously occurs in a more abstract way.
"2) Less limited resource -- with few exceptions, no one is making more land. New IP is created all the time"
Once again, it is about TAKING. I invest in property and improve upon that property because that property is mine. I have incentive to build a house on an empty lot, because that lot is more valuable with a house on it. In this sense, REAL property can be created. If I buy your house, and build a skyscraper on top of it, I have created more space and more property.
Any and all creation or improvement of property -- real or intellectual is discouraged in a system where rights to that property are not respected, and there is little or no property incentive. In the third world, people still farm the land, and in an IP/Patent-less country people would still create IP, however -- as I described in my earlier hypo -- the IP created will be limited to shorter, less costly products. Just as the third world farmer dare-not build a hospital on his land instead of farming -- lest it be taken from him.
"a whole system of rights-of-way has been developed to prevent my use of my real property from interfering with your use of your real property, even if my real property stands between yours and some shared resource you need. With IP, it's the opposite -- your patent on your invention can easily prevent me from implementing mine."
It is called a royalty. If you want to build a structure on my land, you can lease that land from me. If you want to build a technology on top of my technology, you can pay me for the right to do so.
"Not to rain on your parade but you seem pretty biased or to be more accurate parroting certain right-wing dogmas."
Why because I called Sweden's Central bank socialist? Call them up, they'll agree with me. Or are you referring to my support of property rights? Right Wing dogma? It's a constitutional right to property -- 4th Amendment (check it out).
"Intellectual property doesn't exist. It is an umbrella term at best, but mostly it is a word designed to mislead and cause confusion."
Um. Ok, in the most abstract sense, yes, IP doesn't exist. In the printed form, it exists. In the physical form, it's results exist, but the concept is that IP rights are to protect your ideas. It is an umbrella that covers a number of areas like Trademarks, Copyrights, Patents, Trade Secrets... etc. All of which share a number of very similar characteristics. In this case, I am referring to Patents... The concept behind IP is that the creations of your mind belong to you, to dispose of as you please. For practical purposes, there are some limits on the length of validity of MOST IP.
"The value created by creating and protecting patents and to a lesser extent copyrights is seriously outweighed by the bad effects of giving a monopoly on specific information or methods to private companies or persons."
It isn't a monopoly on information. It is a monopoly on the products of my work. I cannot patent the knowledge that water turns into a gas when heated, but I CAN patent a technology that heats that water more efficiently. I would have little incentive to develop my water-heating technology without a patent, as it would take me a lot of time, and I would likely need to invest money to purchase equipment. Without Patents, my technology (if marketable) would surely be recreated by some large corporation who would have no reason to pay me a royalty.
Software isn't much different. Now we are talking about an algorithm, but how is it much different from the water-heating device?
The patent rewards it's creator, and encourages creation by ensuring the ability of the creator to earn money from his creation.
In regards to the Nobel winner's assertion that software patents reduce or restrict creation, I think he is wholly and completely wrong on this matter. All technologies are in some way derived from others, whether software or not, and mankind has (thanks to property rights) been able to develop quite an expansive portfolio of technologies. Here are a few reasons why he is wrong:
1) If I have a software patent, I would certainly be interested in developing derivative technologies of my OWN product.
2) Patents can be a) licensed and b) transferred -- if YOU want to develop a product that derives from MY technology, you need only approach me with your idea and come to terms with me on a royalty for your use of my patent.
The example I'll give is this: You are a software developer working on a revolutionary new program. The technology you are creating in software will revolutionize the way we use our computers. You quit your job two years ago (to work on this project full time), and have spent all of your life savings keeping yourself fed, clothed, and your rent paid, as well as investing in computer equipment that allows you to create, test, and refine your work. When you finish your work, you have no money, but your product is amazing. You release that product to the world on January 1st, 2008.
By March 2008, Microsoft, with their vast wealth and thousands of employees has replicated your techniques and built their own software that works in exactly the same way as your own. They also release this program to the world, for half of the price you are able to offer it for. They invest a ton of money into a large-scale marketing campaign, and corner the market for this technology easily. They offer you no compensation for your work, and since your sales are minimal, you are forced to declare bankruptcy and go out of business.
Microsoft did not copy your code, only the
Software is written work? When was the last time your uncle sat down and READ Windows? Software is in fact more similar to a microwave, than it is to the collective works of Chaucer. The microwave, like software, performs an action. The works of Chaucer do not.
The fact that my post was moderated as "troll" is in-fact the reason why I rarely post here anymore. Meta-moderation apparently doesn't work, since people -1 posts that they disagree with.
Slashdot is a community with no intellectual freedom.