Finally, a minor should not be tried for copyright infringement, except under certian exception, determined on a case by case basis.
Why? Remember, copyright suits are almost always civil. The copyright owner is suing for money damages and equitable remedies such as injunctions; it is not a state prosecution and imprisonment is not on the table. If the copyright holder couldn't sue, then they'd suffer the injuries without any kind of redress. That's not a fair solution.
There parents are responsible, not the child.
No. People are usually responsible for their own torts. Honestly, I can't think of any circumstances in which a parent would actually be responsible for the torts of a child merely by virtue of being the parent. In some cases (more limited than you'd think) the parent might have to pay the damages owed by the child, but even then no one thinks that the parent is the real culpable party. That's just a way to deal with the issue of children generally being judgment proof.
Because any otherwise infringing use is a fair use given the right circumstances, but the same use, under different circumstances, might not be fair. Courts have a tough time with this, there are frequent reversals, and shifts in the law over time. No mere DRM machine can permit all fair uses while not permitting infringing uses.
There's nothing special about children that prevents people from having them testify in legal proceedings. So long as they, like anyone else, are able to understand that they need to tell the truth, they can testify. Also, minors can be found liable for copyright infringement. There's nothing special about them in that regard either.
If ideas aren't property, how can knowledge be valuable?
In order for something to be property, the owner must be able to use and enjoy it, let others use or not use it as he sees fit, and dispose of it as he sees fit. Knowledge is non-rivalrous, however. You can let others use knowledge you have gained, but you cannot get it back from them, nor can you really get rid of it yourself. Further, knowledge is often more valuable the more it is shared, due to network effects. Consider knowledge related to hygiene and disease prevention. If you kept it to yourself, your risk of disease would be greater than if you shared that knowledge. Your risk would be further reduced if you shared that knowledge as widely as possible, which precludes exploiting it for mere financial gain.
No, what determines the term length is the nature of the author. Terms run for the life of the author plus 70 years, except for anonymous works, pseudonymous works, and works made for hire, which run either 95 or 120 as you describe. Who holds the copyright has nothing to do with the term length. An author can assign his copyright to a corporation, but the term is still measured based on his life.
Well, it's not a license. It's an irrevocable end to the copyright on that material. It is the same as when the copyright runs out. Since US government works are non-copyrightable, I'd expect that a decent amount of public domain software comes from there.
Do bear in mind of course that the software remains uncopyrightable; no one can re-copyright the code. At most only those portions of it they've changed would be new and copyrightable, without that having an effect on the unchanged portions or the original materials.
First, because if it's going to be granted, it ought to be to the actual inventor, and not a second-ran. That's not really arbitrary; in fact, it removes some arbitrariness. Second, because the Constitution mandates that patents be granted to the inventor, and not to anyone else. Persons 2 through n who also come up with something aren't the inventor, and I don't see that the patent clause can be read otherwise.
As for it being 'stupid and unfair' that has little to do with this aspect of patent law. I can think of some desirable reforms to patent law, and I'm sure a specialist could think of some more still. I'd love to see patent law improved, but the part you find objectionable is a different part. Make your case, maybe you'll find supporters.
I do, if I invented it independently. Why should I be deprived of the fruits of my labor?
That has more to do with what a patent should be, how large the monopoly should be, etc. First to file won't change that; you'll still have one person shutting down another. At most it will merely be a reversal of roles. That's not more fair, it's just the same thing shuffled around a bit.
If you're actually concerned about independent inventors then what you want is an exception to the patent for all independent inventors after the first. Of course, this too has its downside: everyone will argue that they're an independent inventor, rather than an infringer, and every suit will have an interference-like proceeding.
That's why the answer to your question at present is: Because barring you from using the invention that someone else came up with first and obtained a patent for is how we create an effective enough monopoly to make the patent a sufficient incentive to spur inventors to invent, market, and disclose their inventions, so as to promote the public interest in having more novel nonobvious inventions invented, marketed, and disclosed. Admittedly it runs counter to the public interest in having no, or minimal patents, but then, that's the tension that lies at the heart of the system anyhow. What's important is that it serves the public interest, not any one person specifically. And btw, sweat of the brow has no constitutional support. It is not part of our copyright or patent policy and the argument might as well not even be brought up for how pointless it is.
The Constitution doesn't specify that the patent must awarded strictly to the earliest inventor.
No other interpretation makes sense, however. It is clear that it is a limit on the patent power, but if we allowed Congress to pick and choose its favorite from a pool, then it would be virtually no limit at all. It's not far from there to the playing card fiasco.
The only sensible interpretation is the initial inventor. As I said, if you invent something second, who cares? It's getting there first that is important, not getting to the patent office first.
We care because a lot of people here are saying "This couldn't possible work! I can imagine it will lead to all kinds of bad effects like this..." and they then go on to describe something that is known to not happen in the rest of the world where first-to-file has been the norm for decades.
True, but this is still not an affirmative reason to adopt first-to-file.
Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.
I wish. You need to look at the big picture. What has happened is that a combination of publishing interests and European governments pushed Berne on the US, a system which we had no input into making and which we were bullied for about a century into adopting. Seeing how successful it was to avoid domestic objections to radical enlargements of copyright by using international pressure (i.e. you could do most of the work through fairly anonymous members of the executive branch in quiet meetings abroad, rather than legislators acting fairly publicly in DC, and then bully the legislators by saying that we needed to fulfill treaty obligations and enact laws to comply with the treaties) this method has been used to 1) force even more laws on the US by setting up treaties that mandate them, and 2) to use the same methods elsewhere, as the US rapidly outstripped the rest of the world in bad copyright laws.
Europeans have been fully complicit with this, however, and the initial effort was still based in the horrible Berne Convention, which Europe deserves the blame for. And many of the worst features of our current law (life plus terms, copyright upon creation, etc.) come directly from Berne and are not of US origin. Don't just blame our special interests.
Not really. Each country has an obligation to serve the interests of its own populace. What is good patent policy for one country might very well be bad policy for another.
Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world
What the hell makes that 'great?'
If it's a good idea, then it needs to be good on its merits. It cannot become a good idea just because it is a popular one. In fact, it happens to be a bad idea, and probably unconstitutional in the US, since it rewards early filers, and not the actual inventor. (The second guy to 'invent' something is no more the inventor than the one millionth guy; I could come up with fire or the wheel right now and it wouldn't mean anything to anyone)
Trying to standardize the laws has been a major factor in ruining the American copyright system. I have no confidence at all that it could possibly help the American patent system to merely try to do what everyone else does. This is not to say that our system could not be improved, and indeed those improvements might happen to be similar to elements of other systems in other countries. But it should only be a coincidence that they're the same. There is no value whatsoever to deliberately making them the same.
Of course, this is why it would be unconstitutional to go to a first to file system: the Constitution only permits patents to be granted to inventors, not to johnny-come-latelies. Yes, interferences can be messy to conduct, but it's the only way, and frankly, it's probably the best way; no one ever said that a fair patent system would be easy.
As for what the rest of the world does, who the hell cares? First, standardization is not something that makes a patent system achieve its goals better. Second, just because all the other countries have jumped off of a bridge doesn't mean that we should too. Just look at how attention to foreign implementations has been fucking up our copyright laws.
Because what you're describing isn't a patent, it's a copyright.
Patents, copyrights, and trademarks do not overlap at all, although they may each apply to a different aspect of a single product.
A patent protects an invention generally. In order to be patentable, the invention must be useful, novel, and nonobvious. That is, it must actually work, it must never have been invented before, and it cannot be a minor variation on what is already known to people having an ordinary skill in the field the invention is in (in this case software). If you get a patent, then it covers the invention no matter if someone later independently invents the same thing, and no matter what the implementation of the covered invention. So basically, it would deal with the general way in which certain aspects of the program worked.
A copyright protects a creative work. In order to be copyrightable, the work must be an original work of authorship fixed in a tangible medium. Useful devices, such as machines with gears and wheels and so forth are not copyrightable. However, software manages to straddle the line as it is both a literary work (it is basically a written set of instructions for a machine, and not a machine itself) though that work is normally of the most value when it is executed, causing a machine to act as instructed, at which point it is rather machine-like itself. A copyright only protects work which is original from being copied. If someone independently writes the same thing without having copied it, then even though it is identical, their work is both copyrightable (because it originated with them) and is non-infringing (because they didn't copy it). This is quite different from patents! Further, a copyright only protects the expression of an idea, and not an idea itself. That is, it protects a single implementation, and perhaps some trivial variations of that implementation (otherwise people could change one word, copy everything else, and claim to avoid infringement, which wouldn't be fair) of software, but does not prevent other people from making different implementations or independently re-doing the same one. Again, this is unlike a patent, which covers an invention across all implementations.
And a trademark protects a name and the reputation that goes with that name. This is partially a form of consumer protection (if you want to buy Adobe Photoshop then you don't want other products to use the same name to try to trick you into getting them instead of what you were really after) and partially a way of preventing unfair competition (where people could let Adobe build up a good reputation and then leech off of it for other products). It doesn't protect anything useful, like patents do, and it doesn't prevent copying like copyrights do (because if it's absolutely identical, then the reasoning for protecting a mark goes out the window). Trademarks are about protecting reputation and indicating that a good has the same level of quality as other goods marked the same way (whether for good or ill).
To recap: patents cover underlying principles, copyrights cover specific implementations, and trademarks cover market reputation.
What you were describing was basically like a copyright.
What I think would work best would be to reform both the patent and copyright systems. I don't think we need software patents because the purpose of software patents is to spur invention, bringing-to-market, and disclosure, which otherwise wouldn't have happened. But in the software industry, unlike many other fields, there are many other extremely strong incentives to invent and bring to market. Disclosure I'll get to in a moment. This being the case, the added incentive of a patent might not actually be helping things. And the burden of having a patent, which does prevent competition in the market and which can discourage inventors if they'll face rent-seeking from existing patent holders, may be greater than its benefits. For most fields of invention, this is not the case, but for software, we do
Just because someone else independently thought of it later doesn't mean that it wasn't nonobvious at the time the invention was originally made. Indeed, many inventions turn out to be obvious after someone has already invented them. It's often the hallmark of a great invention, rather than a bad one.
But the whole point of patents is to encourage innovation, by providing protection for unique ideas. Why would anybody bother coming up with new ideas if anybody else could just copy them the next day? (That's especially true for startups, which don't have the money to compete head to head with larger, more established companies.)
No, patents are supposed to promote the progress of the useful arts, which requires that useful and novel inventions are made and embodied in articles available on the market, and also that patents are limited as possible in term and scope. It isn't good enough to merely encourage inventors to develop new inventions; those inventions have to be worth the cost invested by the public (in the form of patents) to yield a net public benefit.
This is basically why we should put a moratorium on software and business method patents.
If a patent actually is necessary to encourage the invention of something which otherwise would not be invented, and that invention is valuable enough to outweigh the public burden of have a patent for it to begin with, then a patent is tolerable.
But if an invention would have been invented anyway, then a patent should not be granted, since it was not a necessary enticement for the inventor and is merely a burden to the public without any public benefit whatsoever. After all, why should anyone pay for something they can legitimately get for free?
In the case of software and business methods, there is a huge amount of inventive activity going on. But it's been going on even though the US only started to have these patents quite recently, and most of the world hasn't got them at all. This indicates that other motives unrelated to patents are sufficient to spur invention in these fields. Patents are not needed, and are in fact harmful.
We could revisit this in the future, and perhaps the other incentives will have died down, and the artificial incentive of a patent would be useful. But right now it is actually harming the progress of the useful arts to grant patents in these fields.
Which makes it nonsensical, not somehow magically valid because it is dependent upon non-intuitive parsing rules that aren't even in the document.
The Constitution does not exist in a vacuum. The framers wrote it in light of their existing legal traditions, and AFAIK, the last in time rule was among them. They didn't feel a need to spell that out. In fact the very idea of a codified constitution was something of a novelty; the framers had been Englishmen, and the English Constitution is uncodified, and consists of the combination of many documents, precedents, traditions, etc. that have accumulated over centuries. The new governments in the United States represented a break from some traditions, and so new laws were needed. But we didn't completely abandon our legal history. Even today, some English laws that predate the Revolution, and which often aren't even still on the books in England, remain laws here, are cited, etc.
The fact that you didn't know the rule, and that you don't find it intuitive, is irrelevant. More on your personal failings later, though.
No one can possibly interpret section 5 as authority to add random text to the constitution.
If by "no one" you mean everyone: all the Congresses, all the states, all the courts, etc., only then would you be right. You are the first person I've ever even heard of who had a problem with this.
You probably think that because the USSC said so, it's perfectly OK for this to be the law of the land.
No. The S.Ct. is often unwise, sometimes wrong (sometimes admittedly so, see e.g. Lawrence v. Texas in which the Court itself wrote that Bowers v. Hardwick, an earlier contradictory case, was wrongly decided), and I often disagree with them. But I do recognize that while they, like all of us, are fallible, they do have legal authority. I wonder if you think that they do.
I say that what they have done is unconstitutional and therefore not the law of anything - we're looking at pure coercion here, not legal authority.
Ooh, it's like a zen koan: if someone acts coercively toward you, but you believe that in fact they have legal authority and thus your responses to them are not founded in a response to their coercion, but is instead merely abiding by the law, does it really matter much in the end?
There is no "last in time" rule described the constitution.
So? Along with what was above, lots of things aren't described in the Constitution but are present in it nevertheless. For example, the First Amendment protects the right to free speech. It does not protect the right for people to freely listen. Assuming that it was otherwise clearly within Congressional authority to regulate (e.g. the listening is going on via a means of indisputably interstate commerce, such as an interstate telephone call), could the listener rely on the First Amendment to protect him? The answer is that he obviously could: the framers could not have been so stupid as to expressly protect a right of free speech without implicitly protecting a right for people to listen to that speech. Without protecting the latter right, the former would be useless, and it is nonsense to assume that the framers went through the trouble of passing the First Amendment with useless provisions in it.
There's all kinds of stuff like this. Remember, lawyers are trained to read and interpret documents very carefully. Everyone writes with varying degrees of looseness; every author makes certain interpretative assumptions which carry through to his writing. If he's careful, he tries to spell them out so as to guide the interpretation of readers. But no one's perfect. (Not that a perfect author seems to count for much: try reading the Talmud some time)
the common man's sensible understanding
I don't recall that the Constitution says that it gives any weight whatsoever to what the common man sensibly understands about anything. Sounds like you should deal with your beam before my mote.
Well, looking at the earlier post in the thread, the platform is that "producers and deliverers of technology can not control how citizens for example should play back the music that they have bought."
So from this we can expect that authors would not be required to release works for all platforms, but cannot interfere, e.g. by using DRM, with attempts by their customers to make those works function on other platforms.
So you could not download a ROM and hack it, but you could buy a copy of the game, rip the ROM, and then hack it to run on a PSP. You could not force MS to release NT for the SNES, but if you bought a copy, you could try to get it to run on the SNES. That's how I'm understanding it, anyway.
If that would be the worst thing to happen from abolishing copyright law, then I'd say that we'd be pretty lucky. After all, preserving the GPL is not more important than dealing with the massive problems surrounding everything else.
That being said, I don't think that abolishing copyright is the best thing to do, but I do think that serious reform is needed.
If a company creates something, they do have a certain right (in the liberal market economic sense) to do whatever the hell they want with it regardless of how poor their business model is.
The issue is not whether the creator has the right to do things with the work -- we're all agreed that he has that right. The issue is whether the creator has the right to prevent other people from acting equally as freely with regard to that work.
That sort of monopoly certainly does not inherently spring from the act of creation. Nor is it commonplace, really. For example, when sushi was introduced to American cuisine, the existing itamae didn't get to keep competitors from making the exact same food. Their hard work in creating the market was exploited by others and this is a fact of life and not a problem with the market or the law.
Authors do not inherently have the right to keep other people from making copies of their works. But just as the government sometimes grants monopolies to utilities in order to ensure greater public benefits than would be had from a deregulated market, it is sometimes acceptable to grant monopolies to authors provided that the public receives a greater benefit from this than they would if these monopolies, called copyrights, were not granted. The public benefits by having more works created and published but equally by having as few or no restrictions on what they can do with those works. So simply increasing copyright is not an ideal solution, since 1) there is an issue of diminishing returns as to how much creation and publication they encourage, and 2) that would run contrary to the public interest in having less copyright.
These anti-IP arguments essentially break down to the same knee jerk pro-communism arguments that were very prominent 50 years ago
Pshaw. If you want a free market then you have to be against copyrights, since they are governmental market regulation. Hell, they're basically a form of subsidy for authors, meant to benefit the public. So really, one would imagine that it would be socialists or communists that are in favor of copyrights, while free-market capitalists are against them. The only reason that the authors and publishers support copyrights is because they benefit so much from them, and they don't want to have to face the additional competition if they were reduced or abolished.
Slashdot Mirror
Finally, a minor should not be tried for copyright infringement, except under certian exception, determined on a case by case basis.
Why? Remember, copyright suits are almost always civil. The copyright owner is suing for money damages and equitable remedies such as injunctions; it is not a state prosecution and imprisonment is not on the table. If the copyright holder couldn't sue, then they'd suffer the injuries without any kind of redress. That's not a fair solution.
There parents are responsible, not the child.
No. People are usually responsible for their own torts. Honestly, I can't think of any circumstances in which a parent would actually be responsible for the torts of a child merely by virtue of being the parent. In some cases (more limited than you'd think) the parent might have to pay the damages owed by the child, but even then no one thinks that the parent is the real culpable party. That's just a way to deal with the issue of children generally being judgment proof.
Because any otherwise infringing use is a fair use given the right circumstances, but the same use, under different circumstances, might not be fair. Courts have a tough time with this, there are frequent reversals, and shifts in the law over time. No mere DRM machine can permit all fair uses while not permitting infringing uses.
No, 1967, assuming the patent was granted in 1950. The term was 17 years from issue then, now it's 20 years from filing.
There's nothing special about children that prevents people from having them testify in legal proceedings. So long as they, like anyone else, are able to understand that they need to tell the truth, they can testify. Also, minors can be found liable for copyright infringement. There's nothing special about them in that regard either.
If we're the Empire, then why don't I have a big starship and cool theme music?
If ideas aren't property, how can knowledge be valuable?
In order for something to be property, the owner must be able to use and enjoy it, let others use or not use it as he sees fit, and dispose of it as he sees fit. Knowledge is non-rivalrous, however. You can let others use knowledge you have gained, but you cannot get it back from them, nor can you really get rid of it yourself. Further, knowledge is often more valuable the more it is shared, due to network effects. Consider knowledge related to hygiene and disease prevention. If you kept it to yourself, your risk of disease would be greater than if you shared that knowledge. Your risk would be further reduced if you shared that knowledge as widely as possible, which precludes exploiting it for mere financial gain.
No, what determines the term length is the nature of the author. Terms run for the life of the author plus 70 years, except for anonymous works, pseudonymous works, and works made for hire, which run either 95 or 120 as you describe. Who holds the copyright has nothing to do with the term length. An author can assign his copyright to a corporation, but the term is still measured based on his life.
Well, it's not a license. It's an irrevocable end to the copyright on that material. It is the same as when the copyright runs out. Since US government works are non-copyrightable, I'd expect that a decent amount of public domain software comes from there.
Do bear in mind of course that the software remains uncopyrightable; no one can re-copyright the code. At most only those portions of it they've changed would be new and copyrightable, without that having an effect on the unchanged portions or the original materials.
Well, apparently the governors they've got on the Garden State Parkway travel 91 in a 65 without their seatbelts on.
First, because if it's going to be granted, it ought to be to the actual inventor, and not a second-ran. That's not really arbitrary; in fact, it removes some arbitrariness. Second, because the Constitution mandates that patents be granted to the inventor, and not to anyone else. Persons 2 through n who also come up with something aren't the inventor, and I don't see that the patent clause can be read otherwise.
As for it being 'stupid and unfair' that has little to do with this aspect of patent law. I can think of some desirable reforms to patent law, and I'm sure a specialist could think of some more still. I'd love to see patent law improved, but the part you find objectionable is a different part. Make your case, maybe you'll find supporters.
I do, if I invented it independently. Why should I be deprived of the fruits of my labor?
That has more to do with what a patent should be, how large the monopoly should be, etc. First to file won't change that; you'll still have one person shutting down another. At most it will merely be a reversal of roles. That's not more fair, it's just the same thing shuffled around a bit.
If you're actually concerned about independent inventors then what you want is an exception to the patent for all independent inventors after the first. Of course, this too has its downside: everyone will argue that they're an independent inventor, rather than an infringer, and every suit will have an interference-like proceeding.
That's why the answer to your question at present is: Because barring you from using the invention that someone else came up with first and obtained a patent for is how we create an effective enough monopoly to make the patent a sufficient incentive to spur inventors to invent, market, and disclose their inventions, so as to promote the public interest in having more novel nonobvious inventions invented, marketed, and disclosed. Admittedly it runs counter to the public interest in having no, or minimal patents, but then, that's the tension that lies at the heart of the system anyhow. What's important is that it serves the public interest, not any one person specifically. And btw, sweat of the brow has no constitutional support. It is not part of our copyright or patent policy and the argument might as well not even be brought up for how pointless it is.
It's not court. It's a deposition. They're usually held in a conference room or some such.
The Constitution doesn't specify that the patent must awarded strictly to the earliest inventor.
No other interpretation makes sense, however. It is clear that it is a limit on the patent power, but if we allowed Congress to pick and choose its favorite from a pool, then it would be virtually no limit at all. It's not far from there to the playing card fiasco.
The only sensible interpretation is the initial inventor. As I said, if you invent something second, who cares? It's getting there first that is important, not getting to the patent office first.
We care because a lot of people here are saying "This couldn't possible work! I can imagine it will lead to all kinds of bad effects like this..." and they then go on to describe something that is known to not happen in the rest of the world where first-to-file has been the norm for decades.
True, but this is still not an affirmative reason to adopt first-to-file.
Actually, speaking in my capacity as a foreigner, what is happening is quite the opposite. The US is continually trying to bully us into adopting your crazy copyright system.
I wish. You need to look at the big picture. What has happened is that a combination of publishing interests and European governments pushed Berne on the US, a system which we had no input into making and which we were bullied for about a century into adopting. Seeing how successful it was to avoid domestic objections to radical enlargements of copyright by using international pressure (i.e. you could do most of the work through fairly anonymous members of the executive branch in quiet meetings abroad, rather than legislators acting fairly publicly in DC, and then bully the legislators by saying that we needed to fulfill treaty obligations and enact laws to comply with the treaties) this method has been used to 1) force even more laws on the US by setting up treaties that mandate them, and 2) to use the same methods elsewhere, as the US rapidly outstripped the rest of the world in bad copyright laws.
Europeans have been fully complicit with this, however, and the initial effort was still based in the horrible Berne Convention, which Europe deserves the blame for. And many of the worst features of our current law (life plus terms, copyright upon creation, etc.) come directly from Berne and are not of US origin. Don't just blame our special interests.
Not really. Each country has an obligation to serve the interests of its own populace. What is good patent policy for one country might very well be bad policy for another.
Although this idea sounds great because it brings us in accordance with the rest of the patent systems in the world
What the hell makes that 'great?'
If it's a good idea, then it needs to be good on its merits. It cannot become a good idea just because it is a popular one. In fact, it happens to be a bad idea, and probably unconstitutional in the US, since it rewards early filers, and not the actual inventor. (The second guy to 'invent' something is no more the inventor than the one millionth guy; I could come up with fire or the wheel right now and it wouldn't mean anything to anyone)
Trying to standardize the laws has been a major factor in ruining the American copyright system. I have no confidence at all that it could possibly help the American patent system to merely try to do what everyone else does. This is not to say that our system could not be improved, and indeed those improvements might happen to be similar to elements of other systems in other countries. But it should only be a coincidence that they're the same. There is no value whatsoever to deliberately making them the same.
Of course, this is why it would be unconstitutional to go to a first to file system: the Constitution only permits patents to be granted to inventors, not to johnny-come-latelies. Yes, interferences can be messy to conduct, but it's the only way, and frankly, it's probably the best way; no one ever said that a fair patent system would be easy.
As for what the rest of the world does, who the hell cares? First, standardization is not something that makes a patent system achieve its goals better. Second, just because all the other countries have jumped off of a bridge doesn't mean that we should too. Just look at how attention to foreign implementations has been fucking up our copyright laws.
Because what you're describing isn't a patent, it's a copyright.
Patents, copyrights, and trademarks do not overlap at all, although they may each apply to a different aspect of a single product.
A patent protects an invention generally. In order to be patentable, the invention must be useful, novel, and nonobvious. That is, it must actually work, it must never have been invented before, and it cannot be a minor variation on what is already known to people having an ordinary skill in the field the invention is in (in this case software). If you get a patent, then it covers the invention no matter if someone later independently invents the same thing, and no matter what the implementation of the covered invention. So basically, it would deal with the general way in which certain aspects of the program worked.
A copyright protects a creative work. In order to be copyrightable, the work must be an original work of authorship fixed in a tangible medium. Useful devices, such as machines with gears and wheels and so forth are not copyrightable. However, software manages to straddle the line as it is both a literary work (it is basically a written set of instructions for a machine, and not a machine itself) though that work is normally of the most value when it is executed, causing a machine to act as instructed, at which point it is rather machine-like itself. A copyright only protects work which is original from being copied. If someone independently writes the same thing without having copied it, then even though it is identical, their work is both copyrightable (because it originated with them) and is non-infringing (because they didn't copy it). This is quite different from patents! Further, a copyright only protects the expression of an idea, and not an idea itself. That is, it protects a single implementation, and perhaps some trivial variations of that implementation (otherwise people could change one word, copy everything else, and claim to avoid infringement, which wouldn't be fair) of software, but does not prevent other people from making different implementations or independently re-doing the same one. Again, this is unlike a patent, which covers an invention across all implementations.
And a trademark protects a name and the reputation that goes with that name. This is partially a form of consumer protection (if you want to buy Adobe Photoshop then you don't want other products to use the same name to try to trick you into getting them instead of what you were really after) and partially a way of preventing unfair competition (where people could let Adobe build up a good reputation and then leech off of it for other products). It doesn't protect anything useful, like patents do, and it doesn't prevent copying like copyrights do (because if it's absolutely identical, then the reasoning for protecting a mark goes out the window). Trademarks are about protecting reputation and indicating that a good has the same level of quality as other goods marked the same way (whether for good or ill).
To recap: patents cover underlying principles, copyrights cover specific implementations, and trademarks cover market reputation.
What you were describing was basically like a copyright.
What I think would work best would be to reform both the patent and copyright systems. I don't think we need software patents because the purpose of software patents is to spur invention, bringing-to-market, and disclosure, which otherwise wouldn't have happened. But in the software industry, unlike many other fields, there are many other extremely strong incentives to invent and bring to market. Disclosure I'll get to in a moment. This being the case, the added incentive of a patent might not actually be helping things. And the burden of having a patent, which does prevent competition in the market and which can discourage inventors if they'll face rent-seeking from existing patent holders, may be greater than its benefits. For most fields of invention, this is not the case, but for software, we do
Just because someone else independently thought of it later doesn't mean that it wasn't nonobvious at the time the invention was originally made. Indeed, many inventions turn out to be obvious after someone has already invented them. It's often the hallmark of a great invention, rather than a bad one.
No, I think you're describing novelty there. An invention can be obvious and novel (and thus unpatentable).
But the whole point of patents is to encourage innovation, by providing protection for unique ideas. Why would anybody bother coming up with new ideas if anybody else could just copy them the next day? (That's especially true for startups, which don't have the money to compete head to head with larger, more established companies.)
No, patents are supposed to promote the progress of the useful arts, which requires that useful and novel inventions are made and embodied in articles available on the market, and also that patents are limited as possible in term and scope. It isn't good enough to merely encourage inventors to develop new inventions; those inventions have to be worth the cost invested by the public (in the form of patents) to yield a net public benefit.
This is basically why we should put a moratorium on software and business method patents.
If a patent actually is necessary to encourage the invention of something which otherwise would not be invented, and that invention is valuable enough to outweigh the public burden of have a patent for it to begin with, then a patent is tolerable.
But if an invention would have been invented anyway, then a patent should not be granted, since it was not a necessary enticement for the inventor and is merely a burden to the public without any public benefit whatsoever. After all, why should anyone pay for something they can legitimately get for free?
In the case of software and business methods, there is a huge amount of inventive activity going on. But it's been going on even though the US only started to have these patents quite recently, and most of the world hasn't got them at all. This indicates that other motives unrelated to patents are sufficient to spur invention in these fields. Patents are not needed, and are in fact harmful.
We could revisit this in the future, and perhaps the other incentives will have died down, and the artificial incentive of a patent would be useful. But right now it is actually harming the progress of the useful arts to grant patents in these fields.
Which makes it nonsensical, not somehow magically valid because it is dependent upon non-intuitive parsing rules that aren't even in the document.
The Constitution does not exist in a vacuum. The framers wrote it in light of their existing legal traditions, and AFAIK, the last in time rule was among them. They didn't feel a need to spell that out. In fact the very idea of a codified constitution was something of a novelty; the framers had been Englishmen, and the English Constitution is uncodified, and consists of the combination of many documents, precedents, traditions, etc. that have accumulated over centuries. The new governments in the United States represented a break from some traditions, and so new laws were needed. But we didn't completely abandon our legal history. Even today, some English laws that predate the Revolution, and which often aren't even still on the books in England, remain laws here, are cited, etc.
The fact that you didn't know the rule, and that you don't find it intuitive, is irrelevant. More on your personal failings later, though.
No one can possibly interpret section 5 as authority to add random text to the constitution.
If by "no one" you mean everyone: all the Congresses, all the states, all the courts, etc., only then would you be right. You are the first person I've ever even heard of who had a problem with this.
You probably think that because the USSC said so, it's perfectly OK for this to be the law of the land.
No. The S.Ct. is often unwise, sometimes wrong (sometimes admittedly so, see e.g. Lawrence v. Texas in which the Court itself wrote that Bowers v. Hardwick, an earlier contradictory case, was wrongly decided), and I often disagree with them. But I do recognize that while they, like all of us, are fallible, they do have legal authority. I wonder if you think that they do.
I say that what they have done is unconstitutional and therefore not the law of anything - we're looking at pure coercion here, not legal authority.
Ooh, it's like a zen koan: if someone acts coercively toward you, but you believe that in fact they have legal authority and thus your responses to them are not founded in a response to their coercion, but is instead merely abiding by the law, does it really matter much in the end?
There is no "last in time" rule described the constitution.
So? Along with what was above, lots of things aren't described in the Constitution but are present in it nevertheless. For example, the First Amendment protects the right to free speech. It does not protect the right for people to freely listen. Assuming that it was otherwise clearly within Congressional authority to regulate (e.g. the listening is going on via a means of indisputably interstate commerce, such as an interstate telephone call), could the listener rely on the First Amendment to protect him? The answer is that he obviously could: the framers could not have been so stupid as to expressly protect a right of free speech without implicitly protecting a right for people to listen to that speech. Without protecting the latter right, the former would be useless, and it is nonsense to assume that the framers went through the trouble of passing the First Amendment with useless provisions in it.
There's all kinds of stuff like this. Remember, lawyers are trained to read and interpret documents very carefully. Everyone writes with varying degrees of looseness; every author makes certain interpretative assumptions which carry through to his writing. If he's careful, he tries to spell them out so as to guide the interpretation of readers. But no one's perfect. (Not that a perfect author seems to count for much: try reading the Talmud some time)
the common man's sensible understanding
I don't recall that the Constitution says that it gives any weight whatsoever to what the common man sensibly understands about anything. Sounds like you should deal with your beam before my mote.
You are
Well, looking at the earlier post in the thread, the platform is that "producers and deliverers of technology can not control how citizens for example should play back the music that they have bought."
So from this we can expect that authors would not be required to release works for all platforms, but cannot interfere, e.g. by using DRM, with attempts by their customers to make those works function on other platforms.
So you could not download a ROM and hack it, but you could buy a copy of the game, rip the ROM, and then hack it to run on a PSP. You could not force MS to release NT for the SNES, but if you bought a copy, you could try to get it to run on the SNES. That's how I'm understanding it, anyway.
If that would be the worst thing to happen from abolishing copyright law, then I'd say that we'd be pretty lucky. After all, preserving the GPL is not more important than dealing with the massive problems surrounding everything else.
That being said, I don't think that abolishing copyright is the best thing to do, but I do think that serious reform is needed.
If a company creates something, they do have a certain right (in the liberal market economic sense) to do whatever the hell they want with it regardless of how poor their business model is.
The issue is not whether the creator has the right to do things with the work -- we're all agreed that he has that right. The issue is whether the creator has the right to prevent other people from acting equally as freely with regard to that work.
That sort of monopoly certainly does not inherently spring from the act of creation. Nor is it commonplace, really. For example, when sushi was introduced to American cuisine, the existing itamae didn't get to keep competitors from making the exact same food. Their hard work in creating the market was exploited by others and this is a fact of life and not a problem with the market or the law.
Authors do not inherently have the right to keep other people from making copies of their works. But just as the government sometimes grants monopolies to utilities in order to ensure greater public benefits than would be had from a deregulated market, it is sometimes acceptable to grant monopolies to authors provided that the public receives a greater benefit from this than they would if these monopolies, called copyrights, were not granted. The public benefits by having more works created and published but equally by having as few or no restrictions on what they can do with those works. So simply increasing copyright is not an ideal solution, since 1) there is an issue of diminishing returns as to how much creation and publication they encourage, and 2) that would run contrary to the public interest in having less copyright.
These anti-IP arguments essentially break down to the same knee jerk pro-communism arguments that were very prominent 50 years ago
Pshaw. If you want a free market then you have to be against copyrights, since they are governmental market regulation. Hell, they're basically a form of subsidy for authors, meant to benefit the public. So really, one would imagine that it would be socialists or communists that are in favor of copyrights, while free-market capitalists are against them. The only reason that the authors and publishers support copyrights is because they benefit so much from them, and they don't want to have to face the additional competition if they were reduced or abolished.