No, that's not true. Making unauthorized copies of a copyrighted work is never permitted for any reason unless it either falls under fair use (which is on a case-by-case basis; some backups would be ok, others would not be, it depends on the circumstances involved), or there is some other exception in the law that applies (e.g. 17 USC 117, which only applies for software, but in practice, hardly ever).
No one is forcing authors or inventors to sell their rights. But they're not children; if they have property and they feel it is in their best interests to sell it, then we should trust their judgment. Your position strikes me as paternalistic.
The Constitution does indeed say that the rights have to be vested in the author or inventor. And the law does just this. But copyright law (and pretty certainly patent law, though I'd have to check) has never prohibited the first rightsholder from assigning his rights to someone else. Nor are the rightsholders arbitrarily defined; things like work made for hire have their origins in the common law and reflect a more nuanced understanding of an employment relationship than one might have with a bright line rule that favored the hand that did the deed but ignored where the direction of that hand originated.
The Constitution doesn't say that they have to be protected from profiteers. It merely says that the laws have to promote the progress of science and the useful arts, that copyrights and patents must be limited in duration, that they must vest in the relevant authors and inventors, and that they pertain to their writings and discoveries. Protection just isn't mentioned.
First off I believe copyrighting a number is wrong and should be impossible. IANAL so I don't know where this stands since it can be used to circumvent IP protection but I would hope people could not get in trouble for sharing a number.
Lucky for you, it is impossible to copyright a mere number. Though this doesn't affect the copyrightability of creative works even when they are expressed as numbers.
However, you can still get in trouble for sharing an uncopyrightable number if it is a part of a circumvention device. It has not copyright infringement; it is trafficking in circumvention devices. It's a different offense.
It's not complete directions that's so important, though that would do it, it's the intention and context. You might want to read the excellent essay What colour are your bits which does a good job of explaining how the perspective of a lawyer can differ from that of a programmer in looking at the same information.
They did it successfully with DeCSS when they cared to try. Look up Universal v. Reimerdes. Think of it as the MPAA winning the battle but not the war. Their opponents are pleased about the general outcome, but those opponents involved in the battle that they lost to the MPAA are not so happy.
The United States Copyright Office does offer a registration service, but it's more a matter of convenience than of necessity.
I'd disagree. First, unless you really don't care about your work, you really ought to register it; you cannot meaningfully protect it if it is unregistered and it will often not be worthwhile to try if you haven't prior to the need for protection. Second, registration is a great idea and we should immediately throw out the Berne Convention like the garbage it is and return to our tradition of strictly requiring registration. It's a good idea on its merits.
Now, a sixteen digit hexidecimal number almost certainly fails to meet the minimum requirements for novelty and authorship (whatever the hell such qualities are referred to legally) and thus is not under the protection of copyright.
Novelty is not a requirement for copyrightability; it's a requirement for patentability. What copyrights require is that the work be an original work of authorship fixed in a tangible medium. Originality isn't the same as novelty. Originality requires that the work have a modicum of creativity and that it originates from the author (i.e. it wasn't copied and doesn't independently exist). Novelty means that it is new. It's entirely possible, though somewhat rare, to have a work which is original and yet which is not new, e.g. if you write a poem which is identical to an earlier poem, and you didn't copy from the earlier poem when writing yours.
This is precisely why I dislike people talking about the DMCA, as opposed to the particular portions of Title 17 that happen to be at issue. The DMCA did a lot of unrelated things.
You're describing, not all that accurately, the takedown procedure at 17 USC 512. The thing is, that only applies in cases of copyright infringement. But the current fuss hasn't got a thing to do with copyright infringement. It has to do with trafficking in circumvention devices under 17 USC 1201, which has no connection to 512 whatsoever. There is no 512 safe harbor for trafficking.
I'd say that they have more of a clue than you do.
Also, if MPAA claims a circumvention of a protection measure what does have to do with people posting a number on any site they didn't circumvent anything and that number is not copyrighted (and probably can't be copyrighted) what do I infringe if I post the number here?
You infringe nothing, and the copyrightability of the key is irrelevant. Frankly, a discussion about circumvention has nearly nothing to do with copyright; ignore copyrights, and infringements, exceptions and defenses that go with copyrights. Circumvention is basically sui generis.
17 USC 1201(a)(2)-(3) says this:
(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that-- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or (C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
(3) As used in this subsection-- (A) to "circumvent a technological measure" means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
The key, in this context, is a part of a device which likely falls under 1201(a)(2)(C) if not (A) and (B) as well. Disseminating the key is unlawful, apart from its use. It's not an infringement, but it's still illegal. The particular offense would be called trafficking.
No, he's correct. 512 deals with copyright infringement which is not necessarily what's going on here. Circumvention isn't a subset of infringement, and so the entire 512 mechanism isn't available to either side. Regular cease and desist letters and temporary injunctions are the tools to use instead. If you still disagree, feel free to quote the precise language you think supports your position. Remember that if it talks about infringement or copyrighted material that that doesn't help you.
Well, the accusation might make the claim, but I don't think that 1201(b)(1) is really involved here. AACS doesn't prevent people from copying the encrypted data AFAIK, and it would have to to qualify for subsection (b). I believe that it is just an access control, like CSS, and thus really only within the bounds of 1201(a). Otherwise, yours is an unusually good analysis for Slashdot. Good for you!
This is a point of view, but even in nature, people have lots of rights to do things, if relatively few rights to prevent others from doing things. And even if natural rights are a fiction, it's a useful one.
that's what copyrights and patents are for, they do provide you with a monopoly
That's what they do, but you haven't explained yet why they do it, and whether and when it's a good idea to have such things.
but legally you are liable if you infringe on copyrights or patents or trademarks etc., try again.
That's not really a response to my statement. And it's not always true.
The problem is that it runs the other way. Copyrights and patents are artificial. So everyone has a right to use whatever knowledge other people make public, unless they want to forgo that right for some reason. Since people generally behave in a self-interested fashion (the artists and inventors want to make money and limit their work in order to get it; everyone else wants it for free), the only way people would forgo that natural right to use others' works and inventions would be if it would profit them more to not use them than to use them. This is entirely possible, but you'll probably have to think for a bit as to how it might work.
But merely investing into something is not a good reason for getting a monopoly on it. There is no sweat of the brow theory in the US for example. We don't care whether you invested a billion dollars or a penny. It's not really relevant. Try again.
This is the type of broad generalities that is more your wish than proven true.
Well, again, the thriving software and business method industries that exist in the rest of the world, and in the US prior to patents being issued in those fields is strong evidence in my favor.
The patent protections they have acquired allows them to justify the almost $1 Billion in server farms and jobs investment. Have 100s of Googles would mean that no one would ever recoup their costs.
I disagree. I think that there might not be that many, and not everyone would operate in every field that Google does now, but that overall there would be healthy competition in all of them, which would be beneficial for the public.
My argument is that protections justify investments (some small, some massive) from which we all benefit.
Well, no. A monopoly is capable of providing an incentive to invest, certainly. But there are other incentives as well; lots of money is invested in fields in which there is a free market. I'm saying that in these specific fields (software and business methods) the other incentives are great enough that there is no need for the artificial incentive of patents. Particularly as that artificial incentive is costly, while the natural incentives are not. This needn't be true all the time, but I think it's true presently. And again, the fact that there aren't software or business methods patents in most of the world, but there is plenty of invention going on there, indicates that I'm probably right. Ditto that we didn't have patents in those fields until very recently, but we've long had invention in those fields. And that a lot of work in those fields even here takes place without inventors seeking patents.
100s of little Microsofts wouldn't create innovation.
One Microsoft hasn't innovated either, actually. MS is infamous for buying smaller innovative businesses, copying competitors, and acting conservatively. Frankly, lots of little MSes would have to be innovative just to survive. The MS we've got doesn't have to; it has enough money and mindshare that it needn't lift a finger. Look at all the features that didn't make it into Vista, and look at how little of an improvement Vista is over previous OSes all the way back to the original Mac. There hasn't been a substantial leap forward like that in ages, and it hasn't come from MS.
That all sounds nice and all, but those countries are sovereign entities and their responsibility is to their own citizens, not the people of the US. If the US can be self-interested in wanting to get all the value it can out of works and inventions and such originating here, then there's nothing wrong with other countries exhibiting the same self-interest in wanting to get it for free. Remember that patents and copyrights are national, not international. Just because the US grants someone a patent doesn't mean that that patent has effect beyond the US border, or that other countries are obligated to grant the same inventor a patent in their countries for the same invention, or that if they do so that the patent has to be as broad in scope or last as long.
(A) Patent Law works exactly the same way as Adverse Possession. If I use your patented invention in my product it is totally up to you to (1) discover it, and (2) come after me for compensation.
No. If I infringe on your patent long enough, you don't lose the patent and I don't get it and the ability to enforce it against others. I merely cited it as an example of how there are limits to real property law. Why you've latched on to it so fiercely is beyond me.
We have rights to acquire patent protection. They are all granted to us by the Constitution.
No. The Constitution empowers Congress to create patent laws and to grant patents. They are not obligated to, and the Constitution does not itself grant patents to anyone. If Congress wanted to, they could meet tomorrow, pass a law that shut down the entire patent system, and that would be that. No one could argue that the Constitution requires them to have patents.
I don't have to personally protect them.
You do have to take some initiative; no one will pursue infringers other than the rightsholder.
(C) If there were no patents, then inventors would market their ideas (just like they do now). Their inventions would not become public and the public could not take them. Inventors would retain their possessions and rights thereof. Patents grant rules so that an inventor can have a specific time to recoup their investment, usually 17 years. If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.
If there were no patents, then inventors would have to rely on the law of unfair competition, treating their inventions as trade secrets. N.b. that this remains an alternative to patents now; many inventors choose not to get patents and instead to use trade secret law. However, the inventions would be in the public domain. The inventors are not obligated (generally) to disclose any facts about them, but they also have no recourse if someone reverse engineers their unpatented invention, or independently discovers it, or otherwise fairly discovers the secret. Because inventors generally prefer the protections of the patent system, they comply with it, instead of going the trade secret route.
If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.
That depends on the invention. Many inventions have gone unpatented over the years. Many go unpatented even today.
But so far I cannot see any useful reason not to have patents.
As I said, patents involve a costly burden to the public, and it is the public's choice, via the government that serves the public, as to whether or not to have patents, and to what degree to have them if at all. I am saying that in the case of software and business methods, the costs to the public outweigh the benefits to the public. This cannot stand, and so we must not grant patents in those fields. This may result in some reduction in inventiveness in those fields, but history and the treatment of these fields in the rest of the world indicate that the reduction would be minimal at most. Thus the public could get most of the benefit for none of the burden. That's a better deal.
Your problem seems to be that you're looking at patents from the perspective of the patent holder. That's the wrong way to do it. You ought to be looking at it from the perspective of absolutely everyone else, since they are the ones who are granting the patent.
During that time, usually 20 years, you have the right to reclaim your property in court.
Actually the time varies significantly. I've seen it as short as 5 years.
Patent law works in exactly the same way. The patent holder is required to protect their rights in court against any infringements.
No, patent holders are not required to do anything. You're thinking of trademarks, and it's not really as true there as people often think.
First, it goes against basic human property rights and against the 14th Amendment.
Setting aside that there is no natural right to property beyond what you can personally protect, you've misunderstood me. I'm not suggesting that we take patents away from anyone. I'm suggesting that for certain fields, we don't give anyone patents to begin with. There is no right to get patents or requirement that there be a patent system or that patents must be granted for particular fields.
Reply: I don't get what the above means at all - not a bit of it. Can you be specific?
I am interested in maximizing the public benefit of the patent system. If accomplishing this requires doing something beneficial for inventors, then I am for it. If accomplishing this requires not doing something beneficial for inventors, then I am for that. I view inventors as a means to an end, but not independently worthwhile. Their inventions, OTOH, are of great value to me. Does this help you?
Reply: This argument more than proves my point: (1) do you buy a car from mo-shmo or a large manufacturer? Why should I invest is mo-shmo car when a big guy could just copy your idea. The only reason the free market has a chance to buy your product is because patents protect the idea. Otherwise, you'd be the inventor, I'd be the manufacturer and I'd make all the money.
I don't really see how it proves your point. A patent doesn't cause a product to be successful in the market. Indeed, the monopoly pricing and limited availability often retard success. But mainly, all a patent does is concentrate whatever success there is to the benefit of the patent holder. If a product is a flop, it'll still be a flop, patent or no.
Now, whether there's a patent might have an affect on whether the invention is invented in the first place, but that's not quite what we were talking about just then, AFAICT.
(2) We live in a world of laws. Laws prevent case-by-case decisions. And who decided these cases? voters, corporations, governments? I prefer a law. Everyone gets the same break.
Meh. We have plenty of case-by-case monopoly grants. Some places have cable tv monopolies, but have unregulated telephone or electrical service.
Yes, the inventor gets to be compensated. You can call it a monopoly, but that is just some supercharged words. Patents are a property right. I get to enjoy it as much as I enjoy my home. I can't go and live in yours for free so why are patents any different?
No, it really is a monopoly. Even Jefferson and Madison who had a lot of responsibility for the US patent system existing at all called it like it is.
Patents are not a property right but are arguably themselves property. So what? Property law, while it developed organically, is actually the same sort of utilitarian system at heart as patents are. It's just more clear cut with patents because they were put together deliberately by people who thought about this sort of thing.
For example, under the right circumstances, you can come and live in my home for free, take my home from me, and make it into your home, because property law isn't as simple as 'I own it, it's mine.' Look up adverse possession sometime. There's all manner of policies and limits on property. Looking to it is of no great help to you, I'm afraid.
Unless you could tell me how the inventors are compensated to the same level (or greater), I would say patents are both valuable and necessary.
I'm uninterested in compensating inventors, save as a portion of a larger scheme.
It isn't clear to me that we would have had a strong product offering in this area if everyone could just copy it.
Without patents, both IBM and Microsoft could just take the idea
So you don't think that the free market would be interested? While a government-granted monopoly can certainly provide a solution when the market doesn't (e.g. lots of infrastructure), I'd prefer to handle that on a case-by-case basis, where the problems in need of a solution are identifiable, rather than granting monopolies left and right hoping that a few of them were worthwhile even though most are not necessary.
So for 2.5 years of work, you only get a half year of market advantage. Does that pay for the extra R&D time? The extra risk in case it didn't pan out?
What if it does? Patents aren't meant to reward inventors for their investment, they're merely there to get them to make investments they wouldn't otherwise have made. If a half a year of market advantage, plus whatever you can wring out of that (e.g. mindshare, a leg up on the next version) is enough, then there's no need for a patent. Why should the public pay for the cow when they can get the milk for free?
Looking at the US software market before software patents and looking at the rest of the world, I think that the natural incentives are probably sufficient. I don't think this will always be the case, but I think that that's where we presently are.
you refuse to believe that if someone makes something (a song, algorithm, book, etc.) they don't have the right to make money off of that
No, you've misunderstood me completely. I have no problem whatsoever with someone who makes something making money from it. I'm all for it, in fact.
But a patent is NOT the right to make money from an invention. It is the right to deny other people their right to make money from your invention; it is a monopoly. That is why it is called an exclusive right: it is the right to exclude. Without a patent, the inventor would merely be in a free market.
Well, given that a patent is a right to prohibit other people from practicing it, how can someone have a natural right to stop others from doing something which they do have a natural right to do? Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.
how can you come back and say that you don't have the right to the product of your work
You do not have a natural right to stop other people from using your invention. But they might give you a right over them which permits you to stop them. They're only likely to do so, however, if it is in their interest.
Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.
And since patents are not 'all things' then there's not much of a problem with that. Just because patents are necessarily utilitarian doesn't mean that everything has to be.
Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.
Basic economics tells you that more incentive creates more production
Only if your basic economist doesn't look at the big picture.
Let us imagine that we have a factory which makes widgets. Let's say that you work for a widget factory, making widgets, at $10 for each widget you build. The factory could presumably incentivize you to make more widgets by paying you $20 for each widget. After all, you want that extra money, right? Well, what if they paid you $10 million per widget? Is that a million times more incentive for you? Are you going to work a million times harder and faster?
No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two. Money is more valuable to people who haven't got it than it is to people who do. A very poor person cannot afford to pass on a job. A very rich person can sit around unemployed and still live comfortably. Each additional dollar has less utility than the one before it. We have progressive tax codes for similar reasons.
Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.
So no, while we are dealing with an issue of how much incentive to add to the varying levels of natural incentive already present, adding more incentive is not a good plan. First, because excessive incentive accomplishes very little as opposed to a modest incentive, which accomplishes a lot. Second, because the public has to bear the cost of this incentive, and since they want the greatest benefit to them, that means the most benefit for them with the least cost -- and thus the least incentive that yields the greatest benefit.
So if you could get 90% of the invention for 50% of the cost by halving incentives, then that would probably be a good idea. It's nearly as good as your current situation and far cheaper.
In extreme cases, patents can even have a negative incentive effect. This is because, like many monopolists, patent holders are rent seeking. They will try to expand the scope and duration of their patent so that they can drive off or swallow up their competitors. In those circumstances, competitors often prefer to direct their efforts elsewhere than to bother.
Your statement was: [Patents] exist because when you invent a process, or anything original, you have the right to your invention.
A patent is a right to an invention. So you essentially said that the reason we have patents is because when you invent something patentable, you have a patent.
The problem is that while you've claimed that it's true because you've claimed it's true, it's actually false; that's not the reason why we have patents.
What I'm getting here is a sense that all people exist for the public good.
That's an interesting philosophy, but I don't share it, I'm afraid. Still, so long as you're willing to live by it and not impose it on others, good for you.
My question to you is: 1: Who does the public exist for/who is the public. 2: So should I devote my whole life to Open Source code and live off Raman for the rest of my life because it is good for the public
Well, you're probably missing two things then.
First, a patent is an artificial, exclusive right. That is, no one just magically has a patent. A patent must be given to them from some outside authority, i.e. the government, which derives its right to govern from the consent of its people, and which acts in their common interests, or is illegitimate. Further, it's not a right to actually do anything; it's a right to prevent other people from doing things. The right to practice the patent is natural, however.
This means that if the county of ABC consists of Alice, Bob, and Carol, and grants Alice a patent, then 1) Alice has the right to prevent Bob and Carol from doing whatever the patent teaches for the duration of the patent, 2) this is because Bob and Carol have voluntarily given up their natural right to do that, by giving Alice a veto power over them, and 3) Bob and Carol are okay with this for some reason, even though it's an imposition upon them. Why would they be okay with it?
Because the second thing is that patents are utilitarian in nature. Alice, Bob, and Carol are each acting in their own self-interest. Alice wants a patent because she can exploit it to get money from Bob and Carol. Bob and Carol are willing to suffer the burden of the patent because they want to get the invention invented, disclosed, and put on the market. But Bob and Carol are unwilling to suffer a burden greater than the benefit they derive from this system because to suffer too great a burden would contrary to their self interest. Likewise, Alice is unwilling to invest her resources in inventing unless the rewards to her are greater than the benefits she'll derive from the process.
Some of the benefits Alice receives are unaffected by the patent system. For example, she could become famous for her invention, like Edison, or Bell. The patent system doesn't help her get famous. And if getting famous was enough for her, then it would be contrary to the interests of Bob and Carol to give her a patent since they'll always prefer to get inventions for free rather than to pay for them, if this is possible.
What I'm saying is that I think that the natural incentives in certain fields are currently great enough to produce a lot of invention, disclosure, and bringing to market, that we don't need to add the artificial incentive of a patent. And that further, the burdens of a patent (e.g. the monopoly pricing that the patent holder will have) are likely to outweigh the benefits, given how slight the benefits happen to be here.
So getting back to your question, while I wouldn't have the first problem with you devoting yourself to a life of charitable software development, I also don't expect you to. But I don't think I have to give you a special bonus for software development on top of what you could get with a patent-free market; I think you'd do it anyway, even if you couldn't get a patent.
Slashdot Mirror
No, that's not true. Making unauthorized copies of a copyrighted work is never permitted for any reason unless it either falls under fair use (which is on a case-by-case basis; some backups would be ok, others would not be, it depends on the circumstances involved), or there is some other exception in the law that applies (e.g. 17 USC 117, which only applies for software, but in practice, hardly ever).
Nice try, though.
No one is forcing authors or inventors to sell their rights. But they're not children; if they have property and they feel it is in their best interests to sell it, then we should trust their judgment. Your position strikes me as paternalistic.
The Constitution does indeed say that the rights have to be vested in the author or inventor. And the law does just this. But copyright law (and pretty certainly patent law, though I'd have to check) has never prohibited the first rightsholder from assigning his rights to someone else. Nor are the rightsholders arbitrarily defined; things like work made for hire have their origins in the common law and reflect a more nuanced understanding of an employment relationship than one might have with a bright line rule that favored the hand that did the deed but ignored where the direction of that hand originated.
The Constitution doesn't say that they have to be protected from profiteers. It merely says that the laws have to promote the progress of science and the useful arts, that copyrights and patents must be limited in duration, that they must vest in the relevant authors and inventors, and that they pertain to their writings and discoveries. Protection just isn't mentioned.
First off I believe copyrighting a number is wrong and should be impossible. IANAL so I don't know where this stands since it can be used to circumvent IP protection but I would hope people could not get in trouble for sharing a number.
Lucky for you, it is impossible to copyright a mere number. Though this doesn't affect the copyrightability of creative works even when they are expressed as numbers.
However, you can still get in trouble for sharing an uncopyrightable number if it is a part of a circumvention device. It has not copyright infringement; it is trafficking in circumvention devices. It's a different offense.
It's not complete directions that's so important, though that would do it, it's the intention and context. You might want to read the excellent essay What colour are your bits which does a good job of explaining how the perspective of a lawyer can differ from that of a programmer in looking at the same information.
Yeah but the statute in question prohibits trafficking in circumvention devices and components thereof. The key could fairly be said to be the latter.
They did it successfully with DeCSS when they cared to try. Look up Universal v. Reimerdes. Think of it as the MPAA winning the battle but not the war. Their opponents are pleased about the general outcome, but those opponents involved in the battle that they lost to the MPAA are not so happy.
The United States Copyright Office does offer a registration service, but it's more a matter of convenience than of necessity.
I'd disagree. First, unless you really don't care about your work, you really ought to register it; you cannot meaningfully protect it if it is unregistered and it will often not be worthwhile to try if you haven't prior to the need for protection. Second, registration is a great idea and we should immediately throw out the Berne Convention like the garbage it is and return to our tradition of strictly requiring registration. It's a good idea on its merits.
Now, a sixteen digit hexidecimal number almost certainly fails to meet the minimum requirements for novelty and authorship (whatever the hell such qualities are referred to legally) and thus is not under the protection of copyright.
Novelty is not a requirement for copyrightability; it's a requirement for patentability. What copyrights require is that the work be an original work of authorship fixed in a tangible medium. Originality isn't the same as novelty. Originality requires that the work have a modicum of creativity and that it originates from the author (i.e. it wasn't copied and doesn't independently exist). Novelty means that it is new. It's entirely possible, though somewhat rare, to have a work which is original and yet which is not new, e.g. if you write a poem which is identical to an earlier poem, and you didn't copy from the earlier poem when writing yours.
This is precisely why I dislike people talking about the DMCA, as opposed to the particular portions of Title 17 that happen to be at issue. The DMCA did a lot of unrelated things.
You're describing, not all that accurately, the takedown procedure at 17 USC 512. The thing is, that only applies in cases of copyright infringement. But the current fuss hasn't got a thing to do with copyright infringement. It has to do with trafficking in circumvention devices under 17 USC 1201, which has no connection to 512 whatsoever. There is no 512 safe harbor for trafficking.
I'd say that they have more of a clue than you do.
You infringe nothing, and the copyrightability of the key is irrelevant. Frankly, a discussion about circumvention has nearly nothing to do with copyright; ignore copyrights, and infringements, exceptions and defenses that go with copyrights. Circumvention is basically sui generis.
17 USC 1201(a)(2)-(3) says this:
The key, in this context, is a part of a device which likely falls under 1201(a)(2)(C) if not (A) and (B) as well. Disseminating the key is unlawful, apart from its use. It's not an infringement, but it's still illegal. The particular offense would be called trafficking.
No, he's correct. 512 deals with copyright infringement which is not necessarily what's going on here. Circumvention isn't a subset of infringement, and so the entire 512 mechanism isn't available to either side. Regular cease and desist letters and temporary injunctions are the tools to use instead. If you still disagree, feel free to quote the precise language you think supports your position. Remember that if it talks about infringement or copyrighted material that that doesn't help you.
Well, the accusation might make the claim, but I don't think that 1201(b)(1) is really involved here. AACS doesn't prevent people from copying the encrypted data AFAIK, and it would have to to qualify for subsection (b). I believe that it is just an access control, like CSS, and thus really only within the bounds of 1201(a). Otherwise, yours is an unusually good analysis for Slashdot. Good for you!
therea re no natural rights
This is a point of view, but even in nature, people have lots of rights to do things, if relatively few rights to prevent others from doing things. And even if natural rights are a fiction, it's a useful one.
that's what copyrights and patents are for, they do provide you with a monopoly
That's what they do, but you haven't explained yet why they do it, and whether and when it's a good idea to have such things.
but legally you are liable if you infringe on copyrights or patents or trademarks etc., try again.
That's not really a response to my statement. And it's not always true.
The problem is that it runs the other way. Copyrights and patents are artificial. So everyone has a right to use whatever knowledge other people make public, unless they want to forgo that right for some reason. Since people generally behave in a self-interested fashion (the artists and inventors want to make money and limit their work in order to get it; everyone else wants it for free), the only way people would forgo that natural right to use others' works and inventions would be if it would profit them more to not use them than to use them. This is entirely possible, but you'll probably have to think for a bit as to how it might work.
But merely investing into something is not a good reason for getting a monopoly on it. There is no sweat of the brow theory in the US for example. We don't care whether you invested a billion dollars or a penny. It's not really relevant. Try again.
This is the type of broad generalities that is more your wish than proven true.
Well, again, the thriving software and business method industries that exist in the rest of the world, and in the US prior to patents being issued in those fields is strong evidence in my favor.
The patent protections they have acquired allows them to justify the almost $1 Billion in server farms and jobs investment. Have 100s of Googles would mean that no one would ever recoup their costs.
I disagree. I think that there might not be that many, and not everyone would operate in every field that Google does now, but that overall there would be healthy competition in all of them, which would be beneficial for the public.
My argument is that protections justify investments (some small, some massive) from which we all benefit.
Well, no. A monopoly is capable of providing an incentive to invest, certainly. But there are other incentives as well; lots of money is invested in fields in which there is a free market. I'm saying that in these specific fields (software and business methods) the other incentives are great enough that there is no need for the artificial incentive of patents. Particularly as that artificial incentive is costly, while the natural incentives are not. This needn't be true all the time, but I think it's true presently. And again, the fact that there aren't software or business methods patents in most of the world, but there is plenty of invention going on there, indicates that I'm probably right. Ditto that we didn't have patents in those fields until very recently, but we've long had invention in those fields. And that a lot of work in those fields even here takes place without inventors seeking patents.
100s of little Microsofts wouldn't create innovation.
One Microsoft hasn't innovated either, actually. MS is infamous for buying smaller innovative businesses, copying competitors, and acting conservatively. Frankly, lots of little MSes would have to be innovative just to survive. The MS we've got doesn't have to; it has enough money and mindshare that it needn't lift a finger. Look at all the features that didn't make it into Vista, and look at how little of an improvement Vista is over previous OSes all the way back to the original Mac. There hasn't been a substantial leap forward like that in ages, and it hasn't come from MS.
That all sounds nice and all, but those countries are sovereign entities and their responsibility is to their own citizens, not the people of the US. If the US can be self-interested in wanting to get all the value it can out of works and inventions and such originating here, then there's nothing wrong with other countries exhibiting the same self-interest in wanting to get it for free. Remember that patents and copyrights are national, not international. Just because the US grants someone a patent doesn't mean that that patent has effect beyond the US border, or that other countries are obligated to grant the same inventor a patent in their countries for the same invention, or that if they do so that the patent has to be as broad in scope or last as long.
(A) Patent Law works exactly the same way as Adverse Possession. If I use your patented invention in my product it is totally up to you to (1) discover it, and (2) come after me for compensation.
No. If I infringe on your patent long enough, you don't lose the patent and I don't get it and the ability to enforce it against others. I merely cited it as an example of how there are limits to real property law. Why you've latched on to it so fiercely is beyond me.
We have rights to acquire patent protection. They are all granted to us by the Constitution.
No. The Constitution empowers Congress to create patent laws and to grant patents. They are not obligated to, and the Constitution does not itself grant patents to anyone. If Congress wanted to, they could meet tomorrow, pass a law that shut down the entire patent system, and that would be that. No one could argue that the Constitution requires them to have patents.
I don't have to personally protect them.
You do have to take some initiative; no one will pursue infringers other than the rightsholder.
(C) If there were no patents, then inventors would market their ideas (just like they do now). Their inventions would not become public and the public could not take them. Inventors would retain their possessions and rights thereof. Patents grant rules so that an inventor can have a specific time to recoup their investment, usually 17 years. If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.
If there were no patents, then inventors would have to rely on the law of unfair competition, treating their inventions as trade secrets. N.b. that this remains an alternative to patents now; many inventors choose not to get patents and instead to use trade secret law. However, the inventions would be in the public domain. The inventors are not obligated (generally) to disclose any facts about them, but they also have no recourse if someone reverse engineers their unpatented invention, or independently discovers it, or otherwise fairly discovers the secret. Because inventors generally prefer the protections of the patent system, they comply with it, instead of going the trade secret route.
If I could copy your invention in a few months, then you wouldn't invest money that could only be recouped over years. It wouldn't be worth it.
That depends on the invention. Many inventions have gone unpatented over the years. Many go unpatented even today.
But so far I cannot see any useful reason not to have patents.
As I said, patents involve a costly burden to the public, and it is the public's choice, via the government that serves the public, as to whether or not to have patents, and to what degree to have them if at all. I am saying that in the case of software and business methods, the costs to the public outweigh the benefits to the public. This cannot stand, and so we must not grant patents in those fields. This may result in some reduction in inventiveness in those fields, but history and the treatment of these fields in the rest of the world indicate that the reduction would be minimal at most. Thus the public could get most of the benefit for none of the burden. That's a better deal.
Your problem seems to be that you're looking at patents from the perspective of the patent holder. That's the wrong way to do it. You ought to be looking at it from the perspective of absolutely everyone else, since they are the ones who are granting the patent.
During that time, usually 20 years, you have the right to reclaim your property in court.
Actually the time varies significantly. I've seen it as short as 5 years.
Patent law works in exactly the same way. The patent holder is required to protect their rights in court against any infringements.
No, patent holders are not required to do anything. You're thinking of trademarks, and it's not really as true there as people often think.
First, it goes against basic human property rights and against the 14th Amendment.
Setting aside that there is no natural right to property beyond what you can personally protect, you've misunderstood me. I'm not suggesting that we take patents away from anyone. I'm suggesting that for certain fields, we don't give anyone patents to begin with. There is no right to get patents or requirement that there be a patent system or that patents must be granted for particular fields.
Reply: I don't get what the above means at all - not a bit of it. Can you be specific?
I am interested in maximizing the public benefit of the patent system. If accomplishing this requires doing something beneficial for inventors, then I am for it. If accomplishing this requires not doing something beneficial for inventors, then I am for that. I view inventors as a means to an end, but not independently worthwhile. Their inventions, OTOH, are of great value to me. Does this help you?
Reply: This argument more than proves my point: (1) do you buy a car from mo-shmo or a large manufacturer? Why should I invest is mo-shmo car when a big guy could just copy your idea. The only reason the free market has a chance to buy your product is because patents protect the idea. Otherwise, you'd be the inventor, I'd be the manufacturer and I'd make all the money.
I don't really see how it proves your point. A patent doesn't cause a product to be successful in the market. Indeed, the monopoly pricing and limited availability often retard success. But mainly, all a patent does is concentrate whatever success there is to the benefit of the patent holder. If a product is a flop, it'll still be a flop, patent or no.
Now, whether there's a patent might have an affect on whether the invention is invented in the first place, but that's not quite what we were talking about just then, AFAICT.
(2) We live in a world of laws. Laws prevent case-by-case decisions. And who decided these cases? voters, corporations, governments? I prefer a law. Everyone gets the same break.
Meh. We have plenty of case-by-case monopoly grants. Some places have cable tv monopolies, but have unregulated telephone or electrical service.
Yes, the inventor gets to be compensated. You can call it a monopoly, but that is just some supercharged words. Patents are a property right. I get to enjoy it as much as I enjoy my home. I can't go and live in yours for free so why are patents any different?
No, it really is a monopoly. Even Jefferson and Madison who had a lot of responsibility for the US patent system existing at all called it like it is.
Patents are not a property right but are arguably themselves property. So what? Property law, while it developed organically, is actually the same sort of utilitarian system at heart as patents are. It's just more clear cut with patents because they were put together deliberately by people who thought about this sort of thing.
For example, under the right circumstances, you can come and live in my home for free, take my home from me, and make it into your home, because property law isn't as simple as 'I own it, it's mine.' Look up adverse possession sometime. There's all manner of policies and limits on property. Looking to it is of no great help to you, I'm afraid.
Unless you could tell me how the inventors are compensated to the same level (or greater), I would say patents are both valuable and necessary.
I'm uninterested in compensating inventors, save as a portion of a larger scheme.
It isn't clear to me that we would have had a strong product offering in this area if everyone could just copy it.
Without patents, both IBM and Microsoft could just take the idea
So you don't think that the free market would be interested? While a government-granted monopoly can certainly provide a solution when the market doesn't (e.g. lots of infrastructure), I'd prefer to handle that on a case-by-case basis, where the problems in need of a solution are identifiable, rather than granting monopolies left and right hoping that a few of them were worthwhile even though most are not necessary.
So for 2.5 years of work, you only get a half year of market advantage. Does that pay for the extra R&D time? The extra risk in case it didn't pan out?
What if it does? Patents aren't meant to reward inventors for their investment, they're merely there to get them to make investments they wouldn't otherwise have made. If a half a year of market advantage, plus whatever you can wring out of that (e.g. mindshare, a leg up on the next version) is enough, then there's no need for a patent. Why should the public pay for the cow when they can get the milk for free?
Looking at the US software market before software patents and looking at the rest of the world, I think that the natural incentives are probably sufficient. I don't think this will always be the case, but I think that that's where we presently are.
you refuse to believe that if someone makes something (a song, algorithm, book, etc.) they don't have the right to make money off of that
No, you've misunderstood me completely. I have no problem whatsoever with someone who makes something making money from it. I'm all for it, in fact.
But a patent is NOT the right to make money from an invention. It is the right to deny other people their right to make money from your invention; it is a monopoly. That is why it is called an exclusive right: it is the right to exclude. Without a patent, the inventor would merely be in a free market.
No, a patent recognizes the right to an invention
Well, given that a patent is a right to prohibit other people from practicing it, how can someone have a natural right to stop others from doing something which they do have a natural right to do? Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.
how can you come back and say that you don't have the right to the product of your work
You do not have a natural right to stop other people from using your invention. But they might give you a right over them which permits you to stop them. They're only likely to do so, however, if it is in their interest.
Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.
And since patents are not 'all things' then there's not much of a problem with that. Just because patents are necessarily utilitarian doesn't mean that everything has to be.
Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.
Basic economics tells you that more incentive creates more production
Only if your basic economist doesn't look at the big picture.
Let us imagine that we have a factory which makes widgets. Let's say that you work for a widget factory, making widgets, at $10 for each widget you build. The factory could presumably incentivize you to make more widgets by paying you $20 for each widget. After all, you want that extra money, right? Well, what if they paid you $10 million per widget? Is that a million times more incentive for you? Are you going to work a million times harder and faster?
No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two. Money is more valuable to people who haven't got it than it is to people who do. A very poor person cannot afford to pass on a job. A very rich person can sit around unemployed and still live comfortably. Each additional dollar has less utility than the one before it. We have progressive tax codes for similar reasons.
Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.
So no, while we are dealing with an issue of how much incentive to add to the varying levels of natural incentive already present, adding more incentive is not a good plan. First, because excessive incentive accomplishes very little as opposed to a modest incentive, which accomplishes a lot. Second, because the public has to bear the cost of this incentive, and since they want the greatest benefit to them, that means the most benefit for them with the least cost -- and thus the least incentive that yields the greatest benefit.
So if you could get 90% of the invention for 50% of the cost by halving incentives, then that would probably be a good idea. It's nearly as good as your current situation and far cheaper.
In extreme cases, patents can even have a negative incentive effect. This is because, like many monopolists, patent holders are rent seeking. They will try to expand the scope and duration of their patent so that they can drive off or swallow up their competitors. In those circumstances, competitors often prefer to direct their efforts elsewhere than to bother.
Your statement was: [Patents] exist because when you invent a process, or anything original, you have the right to your invention.
A patent is a right to an invention. So you essentially said that the reason we have patents is because when you invent something patentable, you have a patent.
The problem is that while you've claimed that it's true because you've claimed it's true, it's actually false; that's not the reason why we have patents.
What I'm getting here is a sense that all people exist for the public good.
That's an interesting philosophy, but I don't share it, I'm afraid. Still, so long as you're willing to live by it and not impose it on others, good for you.
My question to you is: 1: Who does the public exist for/who is the public. 2: So should I devote my whole life to Open Source code and live off Raman for the rest of my life because it is good for the public
Well, you're probably missing two things then.
First, a patent is an artificial, exclusive right. That is, no one just magically has a patent. A patent must be given to them from some outside authority, i.e. the government, which derives its right to govern from the consent of its people, and which acts in their common interests, or is illegitimate. Further, it's not a right to actually do anything; it's a right to prevent other people from doing things. The right to practice the patent is natural, however.
This means that if the county of ABC consists of Alice, Bob, and Carol, and grants Alice a patent, then 1) Alice has the right to prevent Bob and Carol from doing whatever the patent teaches for the duration of the patent, 2) this is because Bob and Carol have voluntarily given up their natural right to do that, by giving Alice a veto power over them, and 3) Bob and Carol are okay with this for some reason, even though it's an imposition upon them. Why would they be okay with it?
Because the second thing is that patents are utilitarian in nature. Alice, Bob, and Carol are each acting in their own self-interest. Alice wants a patent because she can exploit it to get money from Bob and Carol. Bob and Carol are willing to suffer the burden of the patent because they want to get the invention invented, disclosed, and put on the market. But Bob and Carol are unwilling to suffer a burden greater than the benefit they derive from this system because to suffer too great a burden would contrary to their self interest. Likewise, Alice is unwilling to invest her resources in inventing unless the rewards to her are greater than the benefits she'll derive from the process.
Some of the benefits Alice receives are unaffected by the patent system. For example, she could become famous for her invention, like Edison, or Bell. The patent system doesn't help her get famous. And if getting famous was enough for her, then it would be contrary to the interests of Bob and Carol to give her a patent since they'll always prefer to get inventions for free rather than to pay for them, if this is possible.
What I'm saying is that I think that the natural incentives in certain fields are currently great enough to produce a lot of invention, disclosure, and bringing to market, that we don't need to add the artificial incentive of a patent. And that further, the burdens of a patent (e.g. the monopoly pricing that the patent holder will have) are likely to outweigh the benefits, given how slight the benefits happen to be here.
So getting back to your question, while I wouldn't have the first problem with you devoting yourself to a life of charitable software development, I also don't expect you to. But I don't think I have to give you a special bonus for software development on top of what you could get with a patent-free market; I think you'd do it anyway, even if you couldn't get a patent.