I'm not trying to say Bill Maher is wrong or right (back when I was born, it used to be a free country), but a news organization altering facts...
It's a little more complicated then that. First, you are assuming Bill Maher was telling the truth when he said Ken Mehlman was gay. There is no evidence of this aside from whispers circulating the DC rumor mill. If the rumors are NOT true CNN could be opening themselves up to indirect liability for libel by re-airing the interview uncut, as they would be aiding in the spread of false information with a false or reckless disregard for the truth. The fact that they are reputable news station that people tend to believe would certainly be held against them, and would probably result in some hefty damages. I'm pretty sure that's what their legal department said, and that's why they edited the comment out.
...and then using copyright law to cover up that modification is certainly not okay.
But if CNN used copyright law to takedown an interview without potentially defamatory statements that would be ok? CNN has a right to do with their copyrighted work as they please, especially with respect to controlling its distribution. Copyright misuse only covers attempts to use copyright for benefits beyond its intended scope. Controlling the distribution of a copyrighted work is clearly within the scope of a copyright holder's rights.
As for a fair-use claim, it might be colorable depending on how long the clip was and whether there was any creative content added, but if it was just a straight up clip of the interview posted, I do not think it would qualify.
If the tube drops vertically for 1000 feet while in the building, how would the person not essentially be in a free fall and splatter once the tube starts to curve at/near the bottom?
Well if "they" did invent it first, why should somebody else get a patent on it?
Peer review is a good thing in principle because it will filter claims before litigation occurs. The average patent suit costs around $2 million to litigate, not to mention time it takes if the case gets appealed. If you can come up with a cost-effective system of peer review that would reduce the amount of litigation, you would actually be making they system more favorable for lone inventors and small businesses.
The patent office pays court fees every time a patent is overturned in court. It should make them nervous of approving anything that isn't bullet-proof.
It's the government, do you really think they are going have a problem with spending extra cash?
I have no idea why you think any kind of extended contract is necessary for these transactions.
Software as a Serice
OK, so Jane provides her software by writing custom versions of it for her customers. From her perspective, how does she make sure that they won't reverse engineer it and start selling it on their own, ruining her business? Answer: She makes them sign a licensing agreement (a contract).
Using Software to Provide Services
OK, so instead of giving the software to them, they send the input data to her, and she returns them a result. The web actually makes this relatively easy these days so lets assume that the transaction costs of sending and recieving the information are next to nothing. Now the customer has a problem, if their data is sensative, what kind of preventative meassures can they exercise to ensure that Jane doesn't look at it and misappropriate it at her will? Sure they could probably sue her in tort for misappropation, but more likely they would negotiate a non-disclosure agreement (a contract!) with her to legally bind her before the fact.
Embedded in Hardware
Once again, if the software is valuable enough, customers might reverse engineer the hardware so they can sell it. It's the same problem as writing software. Don't think it would happen? Ask IBM about Compaq, or Intel about AMD.
Remember, in all of these cases, Jane's goal is to keep the program itself out of the public domain or competitor's hands. She will take all reasonable steps to ensure this, and if there are no reasonable steps she can take to protect her program, she will simply not write it.
The beauty of IP, I assert again, is it essentially does away with all of this by giving Jane rights to her program that would be similar to the rights she would have over a tangible invention. That is to say the rights to distribute it, reproduce it, sell it, and exclude others from it. IP essentially commoditizes information, by making it tradeable (buy or sell). The end result for Jane, is that she can just box and sell her program to the world at large, instead of dealing with the overhead of a service industry (acquiring and maintaining a base of clients).
You've got to get beyond thinking that content-creators somehow "deserve" to control ideas they've released to someone else, otherwise you'll never be able to conceive of _any_ other social structure other than something that enforces IP.
Copyright law protects the expression of ideas, not ideas themselves. There is an entire jursipruduence devoted to this. Additionally, the U.S. system of IP protection (unlike the EU system) is based on the utilitarian benefits of IP. It has nothing to do with moral rights to IP. The Constituion only allows IP to "promote progress." It mentions nothing of people having a moral right to IP. You will notice that none of my arguments have alluded to a moral right. I have mentioned Labor Theory in passing (and not in the seciton you quote), but most of my arguments have been about how society would be better off with reasonable IP laws, then without them.
Of course, I'm arguing from the easy case - in the absence of any solid proof that IP laws provide a net benefit to society (and with a fair amount of anecdotal evidence that IP laws are currently retarding innovation), it's my belief that the market forces should be allowed to dictate the value of so-called IP without government interference.
I will again refer you to the discussion of public goods. Information is a public good and as such lacks a general market force to drive it. Even the guru of free-market economics and nobel laureate, Milton Friedman acknowledges that public goods need
1. writing software as a service, 2. using software to provide services, and 3. writing software to be embedded in hardware.
I believe I sighted all three. I mentioned the embedded hardware specifically, and the contracts needing to be signed by the customer imply that that software itself would not be a commodity. Even assuming I did not mention services and Jane decided to offer the software as a service, she still would have to protect the service via contract law. The result is added transaction costs for the product in the form of monitoring customers and enforcing the contract. This would result in an increase in litigation, since there is no societal pressure to comply with the terms of the contracts unless they see that they are bieng enforced. The need to create a contract though illustrates a larger point about IP laws, and that it is that they are a natural evolution of the market. Think about it. What is Jane doing with the contracts? Limiting use and securing herself exclusive righs with respect to the customer. The function of IP law is to move these transactional costs off the customer, who would have to deal with them on a person-by-person basis, and amortize the cost over the whole society. Instead of every customer having to sign a contract, Jane goes to the copyright office and registers it, in effect granting her that same protection without the overhead. Result, the software is cheaper. Can you imagine what a pain it would be if for every music CD or program you purchased, the owner maid you sign a use agreement. It would be a hassle.
As a final note, you are right about copyright and software not jiving well together. Software if anything would more perfectly fit under the patent scheme of IP since its value is from its novelty, not its creativity. I have an arguement for creative works. But I'll post that some time later.
That's fair. I would still argue that the concept of protecting intellectual property is in the Constitution by the fact that it authorizes Congress to give authors "exclusive rights" to works which promote the progress of science and the useful arts. IP as a term refers to these exclusive rights since the Constitution in effect is protecting the author's created knowledge. I really cannot think of any other way to interpret the clause. Any suggestions?
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Specifically, "science" in its archaic definition reffered to knowledge of any kind (definition is from the oxford english dictionary, which charges for its website, hence no link). This knowledge has been extended to the protection of creative works of expression, which are the types of works protected by copyright law. Copyright law has existed in this country since its common law days in the 19th century and was first codifies with the Copyright Act of 1909. (I got this from my old IP Law textbook, Intellectual Property in the New Technological Age by Merges, Menell, and Lemley, go find it on Amazon).
On a side note, patent law actually derives from the "useful arts" term in the Constitution, which explains the requirement of usefulness and why scientific theorms cannot be patented, because, for example, the theory of relativity as an idea has no usefulness, though its many applications do (and hence are patentable).
Copyright is _law_ not a right
Actually, the "right" is in the name itself.;) That said, copyright in the US is largely based on the utilitarian aspects of encouraging creation and expression of knowledge, so its characterization in US legal culture as a "moral" or "natural" right is very weak. By countrast EU Copyright legislation (link), especially Continental legislation is based heavily in moral and natural rights theories like the right to ownership of the products of one's labor. In this regard, EU copyright law was actually much more expansive than US law up until the US ratcheted its law up in 1989 to come into compliance with the Berne Convention (which basically setup EU-style requirements as the basis for copyright law in Western nations).
You know, if it weren't for government enforcement of an artificially-created monopoly, your example of Jane's attempt to make money would be called a "bad business plan".
Ok so if there is no IP law, Jane has two choices. The first is to never make the software because she needs to earn a living and the Wal-Mart down the street will pay her to ring up cash registers. End result, society loses the value of that software, which is, let's say a 10% gain in societal productivity (it is revolutionary). Thus, we all have to work 8 hours a day to maintain our standard of living instead of the 7.2 hours we would have had to work if her software existed. (Alternatively, we could have raised out standard of living by still working the 8 hours a day and getting that extra production.)
Jane's second choice is to make her bad business plan a good one. She does this by making the software impossible to copy. Maybe she puts it into an embedded device with encryption and self-destructive mechanisms in place to prevent tampering and by making sure only she knows the complete secret to producing the program. OK, too implausible? Lets say she does not do that, but instead drafts contracts which she makes all of her customers sign saying they will never distribute, sell, copy, or otherwise appropriate her software. These contracts are civily enforceable, air tight, and will bankrupt anyone that violates their terms. Jane now has a way of protecting her program, but she still has one more problem: how do you avoid selling them to people who do not care if you bankrupt them? The solution to that is price. Poor people, since they are poor, could care less if you bankrupt them since they have little to nothing to lose; they are judgment proof. Rich people on the otherhand stand to lose their fortunes, their lifestyle, and their status (this is a capitalist society), and on top of that, they can afford to pay a buttload of money for this software, and would get more out of it since 10% of their time is worth significantly more then 10% of a poor person's time. So Jane charges a lot of money and sells to rich people only. Societal result, the rich people who can afford to buy her wunder-program are 10% more productive and are better off (more time or more money). Everyone else stays the same (i.e., they are worse off relatively) and Jane still makes her money, and the program and its valuable knowledge remain closed off to society at large.
Now, there is your market at work, but in which situation is society really that better off?
Alternatively, reasonable IP laws are in place and respected by society at large. They create a societal contract, which protects Jane's work by giving her exclusive rights for a limited period of time in exchange her agreement to let the program lapse into the public domain after that period. Jane now will develop her program (without the burdensome costs of excessive copy protection), since she can recoup her investment, and while she still might just sell it to rich people, when her IP rights expire, society as a whole gets the rights to that program and can use it make themselves more productive. Now granted this is based on the assumptions that the period of time is reasonable, and that Jane won't get rich enough to bribe a couple Senators to change the law, but the point is that reasonable IP laws can work to make the market function in a way that better benefits society at large.
IP laws are socialistic at their fundamental - attempting to "twist" free-market economics to try and achieve a social effect (encouraging innovation).
A final note, I would be careful with this logic. Twisting the freemarket to achieve societal gains is the basic logic behind minimum wage laws, tradable pollution credits, vice taxes, and many other things which arguably make society better. Properly set rules and regualtions can internalize market externalities, which in turn can lead to market forces that more perfectly reflect societal value and policy choices. Think about that when considering the alternative slave-waged, smog (cars and cigarettes) filled world an completely unencumbered market might create.
You have the right idea, but the terminology is wrong. He might not have known he was helping them infringe (though I sincerely doubt that), but would say he was certainly reckless in thinking that infringement was not going on. That is to say an average reasonable person in his situation, knowing of the activities present on open, unregulated bittorrent sites (mininova or isohunt anyone?), would have foreseen the likeilhood that his open and unregulated site would have been used for copyright infringement, and despite knowing the risks, chose not to put in any safeguards to prevent the illegal distribution of copyrighted materials.
In that sense he could have been criminally cupable. Now whether the statute itself punishes people for this particular mens rea, I do not know, and frankly do not care to look up right now.
I wish lawyers like you would realize that just because something hasn't been done before doesn't mean it's not obvious.
I never made that statement. I said, the fact that it was only done twice in a competetive industry with many companies is evidence that it might not be as obvious as you think.
Most technology is developed when "it's time has come", the necessary precursors have been developed and the next step in development is obvious. Both floating-point-as-an-extension-of-integer and multi-processing, both also developed incrementally, are blindingly obvious in themselves, and to their applicability, and were developed many decades ago.
I should note that what is obvious and what is not obvious is a question of fact and depends on far more information about the state of the industry than I have knowledge of. I regret not mentioning that caveat here, like i did in some of the other posts in this thread. An while I agree and will concede the extension of moving from integer to floating point and from single to multi-processor might be logical progressions of the idea. The implementation of those concepts as compared to the implementation of previous art might be radically different. Again, it depends on the facts and what SGI's patent covers. (I will admit to not having read it, or reading a description of ATI's allegedly infringing design.)
I also get highly irritated by lawyers, who are not in the business of creating things like me and hence are amateurs, claiming to know more about creation than I do.
I worked at Nothrop Grumman's aerospace division for 2 years before going to law school. Do not imply that I have never been or do not know about the business of creating things. (Some of my work helps guide their new UCAVs). Attack the argument, not the person.
Like I said to the other reply, from what I'm reading in the other posts, ATI's technology came to fruition circa 2002, while SGI filed for its patent in 1998. Four years is not "simultaneous," especially in the computer industry. Just look at the CPU's from four years ago. Could you honestly have predicted in 2002 then that multi-core CPU's would be commonplace on laptops or even desktops? In 2002, I was the only person in my entire college dorm (~700 people) that had a dual-processor system. I bet I could go through it today and find at least 50% of the people have an multi-core system.
Even if they did both invent simultaneously, would the fact that two out of how many graphics chips companies (S3, Rendition, 3dfx, Nvidia, Intel, ATI, SGI, PowerVR, 3DLabs, Matrox at a minimum) came up with this technology really indicate that it was an obvious natural extension? ATI probably has a prior art defense if they indeed did invent this at the same time as SGI, but I would sincerely doubt that they could claim non-obviousnes. It's not like SGI designed a 4 vertex shader card and ATI came along and made an 8 shader model.
I didn't mean protecting legally defined stolen research. I was using the term a bit loosely to refer to reverse-engineering a competitor's product to do the same thing... using their research without conducting your own, if you will.
Exactly my definition. Patent law protects against reverse-engineering. If I have a patent on A, and you reproduce what is basically equivalent A you are liable for infringement, even if you reverse engineered it or came up with it all by yourself. (Note: what can be "equivalent" is really complex and depends on the type of patent. I will not get into that here.) Reverse-engineering is only protected under trade secret law, which involves innovations that have not been patentited. Thus, if I had a trade secret A, and you independently reverse-engineer and come up with A, I have no right to sue you for trade secret misappropriation.
SGI is most definitely legally entitled to sue. What they are not entitled to is a patent on blood, sweat, and tears rather than originality. If multiple companies come to the same solution to a problem at the same time, the solution is probably obvious to someone skilled in the arts.
Yes, all of what you said is true, but SGI filed for the patent in 1998. Meanwhile, IIRC another post said ATI's work came about circa 2002. In a fast developing industry like one would be hard pressed to call 4 years simultaneous. As far as not bieng novel, which is what your person skilled in the art defense goes to, we would need more facts, but the fact that in four years, only one other company out of an entire industry (SGI, ATI, Nvidia, Intel, S3 to name a few) came up with this independently is strong evidence that their innovation was probably not obvious.
I am an IP Lawyer and patents are not about just protecting stolen research, though it does. They are about protecting you investment in a device that is non-obvious and innovative (you got that part right). What this means is that even if ATI did invent this all by themselves, if SGI invented it before ATI, they are entitled to sue.
You are confusing patent law with trade secret law, which does protect from missapropriation and stealing, but requires that you keep your innovation secret, which you cannot do if you file a patent. The two laws are for the most part mutually exclusive.
Well for starters, he did create the knowledge. It didn't come from the ether. If society does not give him some way to recoup the cost of creation, like right of sale or right of exclusion, then what incentive does he to create?
And let's ignore the whole creation for its own sake argument. Those people "create" regardless of whether there is or is not copyright law. The key question is do you want to encourage those who can create, but would rather earn a living, to create as well? If yes, you have to be able to let them make a living by creating (i.e., property rights and copyright law). If no, then you accept the cost to society, which is the loss of the knowledge they did not create.
Note: This is not a talk about the Mickey Mouse Extension, or any of the other issues with contemporary copyright law. This is just an argument for its need and purpose on a fundamental level.
Copyright isn't just about protection for protection's sake. Copyright law is about giving economic incentive to create knowledge/information by giving the creator limited property rights to that information.
Take art for example. While it is true that a lot of artists create art for its own sake, copyright law gives incentive to other artists, such as Thomas Kincaid, incitive create more art because they can make a living off it. Without copyright protection, Kincaid and artists like him would face a problem because every painting they created could be copycatted, driving down its sale value and thus the money they can earn. If the value gets too low, these artists are forced to make a choice: food or art. If they choose food, they go out and get a job that'll pay them, and we lose their further contribution to art and however it benefits society.
Thus, the oppurtunity cost of no copyright protection is not companies having to create protection schemes, but the loss of information and knowledge not created because people have no monetary incentive to do so.
`(C) INTRATRIBAL TRANSACTIONS- The term `unlawful Internet gambling' shall not include placing, receiving, or otherwise transmitting a bet or wager where--
`(i) the bet or wager is initiated and received or otherwise made exclusively--
`(I) within the Indian lands of a single Indian tribe (as those terms are defined by the Indian Gaming Regulatory Act); or
`(II) between the Indian lands of 2 or more Indian tribes to the extent that intertribal gaming is authorized by the Indian Gaming Regulatory Act;
Hell, the law even allows interstate transactions between Tribal sites. While I do not see a method myself, I am pretty sure someone could figure out a way to structure online betting transactions so that it meets these requirements. That would essentially allow interstate gaming in the U.S., regardless of location.
Rights do not depend on laws; either to grant said rights, nor can rights be revoked by law.
Accepting this premiss, then how do we go about determining what a right is?
As such, I will say that free people have a "right to gamble"
Ok, so if merely declaring something a right is enough to make it so, then I can declare that people have a "right to take from other people that which the takers want" (i.e., a "right to steal") and refuse to follow any laws to that prohibit it.
I am not disputing your assertion that there might be a "right to gamble," but I would like to see better logic for asserting it than "It is because I say it is."
I guess the world economy only counts if it give the U.S. and advantage.
That last statement is kind of spurious. It'd be more appropriate in the case of U.S. steel tarrifs, where the primary motivation is the U.S. protecting its own over a professed committment to globalization. If this law banned gamblign using foreign owned businesses, then I would agree with you.
Instead, this law is Congress exercising its police powers enforce it's percieved notions of morality in the U.S. It's more like a country banning U.S. movies because they did not like the sex or violence present in them.
A private sector company can't be expected to invest in research that pays off in ten years; there are too many uncertainties in business to ask investors to shoulder that. Five years is reasonable. But if five years is a reasonable end point for private sector research efforts, and, say, twenty years is a reasonable starting point for public sector research efforts, then we have a massive gap in the 5-20 year range. That applied research gap is a massive national economic vulnerability.
Encouraging innovation that would be otherwise economically unfeasible is the exact rationale behind the patent system. see here. It would seem that if we have a market deficiency here, then we should be reforming the patent system to allow for companies to recieve a return on a 20 year investment. For example, we already allow drug companies to patent drugs before they get FDA approval so that companies do not lose the cost of testing if the drug is somehow unpatentable. How exactly you'd extend that logic to this field, I do not know, but it's worth a look at before we start throwing tax dollars directly at the problem.
Yes non-profits (specifically 501(c)(3) non-profits) lobby congress, but there are tons of restrictions on what they can and cannot lobby for or against. Any violation will result in the revocation of their tax-free status. Most of them usually get around this by registering a sister corporation (i think it's 501(c)(4), though post campain finance reform most of them might be 527's) and have that wing do all of the lobbying. They also usually take care to seperate the streams of funding for each operation. Google.org by going for-profit avoids this hassel from the lobbying perspective and can directly use their funds for any lobbying they see fit.
Yes, but the issue the grandparent was arguing was not the notion of DRM. It is whether the French government has a right to force Apple to open up its trade secrets to other companies. By forcing Apple to open up iTunes (if that were to happen), the French Government is effectively taking away a fundamental property right, the right to exclude, that one could argue Apple has. After all, they created iTunes and the iPod by themselves and are largely responsible for the success that it became. The French Government is now coming in and saying, "Good job. Now share with your competitors." This bad policy, since it discourages future companies from taking risks like this, which is what the grandparent was trying to get across. If this were the U.S. Government doing it, Apple would probably have a 5th Amendment Takings Clause claim on their hands.
Actually the errors in the 2004 exit polls are due to the fact they were horribly unrepresentative. Link. In class the other day we in fact looked at some of the polling data and the main problem with most of the skewed exit-polls is that they were polling a skewed segment of the population. The particular poll I looked at from a precinct in Virgina was 60% women, 40% men. There are also other factors, such as the one the article points out, which is that Republicans are les likely to participate in the poll. Collectively, these can really skew the polls. What happened in 2004 is no different than the "Dewey defeats Truman" election. In that election pollsters used data collected from phone surveys to predict that Dewey would defeat Truman. What they did not realize back then was that only affulent people owned phones and that affulent people were the bulk of Dewey's base, ergo skewed results and a Truman victory. Exit polls are only as good as the methodology on which they are based.
Ok so I've been interning down here and gotten to watch this whole thing unfold, albeit from a distance. The basic gist is that the judiciary committee actually did a pretty good job of creating a compromise, by allowing a lot of ammendments to the bill to be brought up, many of them specifically reinstating sunset provisions on all of the controversial sections. This in effect would probably have meant the demise of the Patriot Act the third time around because, even though a lot of Republicans voted for the bill, many of them had reservations as can be seen by the motion to recommit the bill (ie send it back to committee, which would have effectively killed it) which only lost by 9 votes.
The main problem came in the Rules committee, which marks up the bill and sets up procedure for its debate. Rules basically gutted out all of the significant amendments and only allotted time for the consideration of rather menial ammendments that would either not pass at all or be so inane that their passage would not make a dent in the bulk of the text. This is what effectively killed any effort to affect meaningful change in the Patriot Act. I have no doubt that the reinserting of the sunset provisions (at least) would have passed if it were allowed to be offered. Of course, that's probably why it was never offered.
Slashdot Mirror
It's a little more complicated then that. First, you are assuming Bill Maher was telling the truth when he said Ken Mehlman was gay. There is no evidence of this aside from whispers circulating the DC rumor mill. If the rumors are NOT true CNN could be opening themselves up to indirect liability for libel by re-airing the interview uncut, as they would be aiding in the spread of false information with a false or reckless disregard for the truth. The fact that they are reputable news station that people tend to believe would certainly be held against them, and would probably result in some hefty damages. I'm pretty sure that's what their legal department said, and that's why they edited the comment out.
But if CNN used copyright law to takedown an interview without potentially defamatory statements that would be ok? CNN has a right to do with their copyrighted work as they please, especially with respect to controlling its distribution. Copyright misuse only covers attempts to use copyright for benefits beyond its intended scope. Controlling the distribution of a copyrighted work is clearly within the scope of a copyright holder's rights.
As for a fair-use claim, it might be colorable depending on how long the clip was and whether there was any creative content added, but if it was just a straight up clip of the interview posted, I do not think it would qualify.
If the tube drops vertically for 1000 feet while in the building, how would the person not essentially be in a free fall and splatter once the tube starts to curve at/near the bottom?
Well if "they" did invent it first, why should somebody else get a patent on it?
Peer review is a good thing in principle because it will filter claims before litigation occurs. The average patent suit costs around $2 million to litigate, not to mention time it takes if the case gets appealed. If you can come up with a cost-effective system of peer review that would reduce the amount of litigation, you would actually be making they system more favorable for lone inventors and small businesses.
It's the government, do you really think they are going have a problem with spending extra cash?
Software as a Serice
OK, so Jane provides her software by writing custom versions of it for her customers. From her perspective, how does she make sure that they won't reverse engineer it and start selling it on their own, ruining her business? Answer: She makes them sign a licensing agreement (a contract).
Using Software to Provide Services
OK, so instead of giving the software to them, they send the input data to her, and she returns them a result. The web actually makes this relatively easy these days so lets assume that the transaction costs of sending and recieving the information are next to nothing. Now the customer has a problem, if their data is sensative, what kind of preventative meassures can they exercise to ensure that Jane doesn't look at it and misappropriate it at her will? Sure they could probably sue her in tort for misappropation, but more likely they would negotiate a non-disclosure agreement (a contract!) with her to legally bind her before the fact.
Embedded in Hardware
Once again, if the software is valuable enough, customers might reverse engineer the hardware so they can sell it. It's the same problem as writing software. Don't think it would happen? Ask IBM about Compaq, or Intel about AMD.
Remember, in all of these cases, Jane's goal is to keep the program itself out of the public domain or competitor's hands. She will take all reasonable steps to ensure this, and if there are no reasonable steps she can take to protect her program, she will simply not write it.
The beauty of IP, I assert again, is it essentially does away with all of this by giving Jane rights to her program that would be similar to the rights she would have over a tangible invention. That is to say the rights to distribute it, reproduce it, sell it, and exclude others from it. IP essentially commoditizes information, by making it tradeable (buy or sell). The end result for Jane, is that she can just box and sell her program to the world at large, instead of dealing with the overhead of a service industry (acquiring and maintaining a base of clients).
Copyright law protects the expression of ideas, not ideas themselves. There is an entire jursipruduence devoted to this. Additionally, the U.S. system of IP protection (unlike the EU system) is based on the utilitarian benefits of IP. It has nothing to do with moral rights to IP. The Constituion only allows IP to "promote progress." It mentions nothing of people having a moral right to IP. You will notice that none of my arguments have alluded to a moral right. I have mentioned Labor Theory in passing (and not in the seciton you quote), but most of my arguments have been about how society would be better off with reasonable IP laws, then without them.
I will again refer you to the discussion of public goods. Information is a public good and as such lacks a general market force to drive it. Even the guru of free-market economics and nobel laureate, Milton Friedman acknowledges that public goods need
I believe I sighted all three. I mentioned the embedded hardware specifically, and the contracts needing to be signed by the customer imply that that software itself would not be a commodity. Even assuming I did not mention services and Jane decided to offer the software as a service, she still would have to protect the service via contract law. The result is added transaction costs for the product in the form of monitoring customers and enforcing the contract. This would result in an increase in litigation, since there is no societal pressure to comply with the terms of the contracts unless they see that they are bieng enforced. The need to create a contract though illustrates a larger point about IP laws, and that it is that they are a natural evolution of the market. Think about it. What is Jane doing with the contracts? Limiting use and securing herself exclusive righs with respect to the customer. The function of IP law is to move these transactional costs off the customer, who would have to deal with them on a person-by-person basis, and amortize the cost over the whole society. Instead of every customer having to sign a contract, Jane goes to the copyright office and registers it, in effect granting her that same protection without the overhead. Result, the software is cheaper. Can you imagine what a pain it would be if for every music CD or program you purchased, the owner maid you sign a use agreement. It would be a hassle.
As a final note, you are right about copyright and software not jiving well together. Software if anything would more perfectly fit under the patent scheme of IP since its value is from its novelty, not its creativity. I have an arguement for creative works. But I'll post that some time later.
That's fair. I would still argue that the concept of protecting intellectual property is in the Constitution by the fact that it authorizes Congress to give authors "exclusive rights" to works which promote the progress of science and the useful arts. IP as a term refers to these exclusive rights since the Constitution in effect is protecting the author's created knowledge. I really cannot think of any other way to interpret the clause. Any suggestions?
Article 1, Section 1, Clause 8:Specifically, "science" in its archaic definition reffered to knowledge of any kind (definition is from the oxford english dictionary, which charges for its website, hence no link). This knowledge has been extended to the protection of creative works of expression, which are the types of works protected by copyright law. Copyright law has existed in this country since its common law days in the 19th century and was first codifies with the Copyright Act of 1909. (I got this from my old IP Law textbook, Intellectual Property in the New Technological Age by Merges, Menell, and Lemley, go find it on Amazon).
On a side note, patent law actually derives from the "useful arts" term in the Constitution, which explains the requirement of usefulness and why scientific theorms cannot be patented, because, for example, the theory of relativity as an idea has no usefulness, though its many applications do (and hence are patentable).
Actually, the "right" is in the name itself.
Ok so if there is no IP law, Jane has two choices. The first is to never make the software because she needs to earn a living and the Wal-Mart down the street will pay her to ring up cash registers. End result, society loses the value of that software, which is, let's say a 10% gain in societal productivity (it is revolutionary). Thus, we all have to work 8 hours a day to maintain our standard of living instead of the 7.2 hours we would have had to work if her software existed. (Alternatively, we could have raised out standard of living by still working the 8 hours a day and getting that extra production.)
Jane's second choice is to make her bad business plan a good one. She does this by making the software impossible to copy. Maybe she puts it into an embedded device with encryption and self-destructive mechanisms in place to prevent tampering and by making sure only she knows the complete secret to producing the program. OK, too implausible? Lets say she does not do that, but instead drafts contracts which she makes all of her customers sign saying they will never distribute, sell, copy, or otherwise appropriate her software. These contracts are civily enforceable, air tight, and will bankrupt anyone that violates their terms. Jane now has a way of protecting her program, but she still has one more problem: how do you avoid selling them to people who do not care if you bankrupt them? The solution to that is price. Poor people, since they are poor, could care less if you bankrupt them since they have little to nothing to lose; they are judgment proof. Rich people on the otherhand stand to lose their fortunes, their lifestyle, and their status (this is a capitalist society), and on top of that, they can afford to pay a buttload of money for this software, and would get more out of it since 10% of their time is worth significantly more then 10% of a poor person's time. So Jane charges a lot of money and sells to rich people only. Societal result, the rich people who can afford to buy her wunder-program are 10% more productive and are better off (more time or more money). Everyone else stays the same (i.e., they are worse off relatively) and Jane still makes her money, and the program and its valuable knowledge remain closed off to society at large.
Now, there is your market at work, but in which situation is society really that better off?
Alternatively, reasonable IP laws are in place and respected by society at large. They create a societal contract, which protects Jane's work by giving her exclusive rights for a limited period of time in exchange her agreement to let the program lapse into the public domain after that period. Jane now will develop her program (without the burdensome costs of excessive copy protection), since she can recoup her investment, and while she still might just sell it to rich people, when her IP rights expire, society as a whole gets the rights to that program and can use it make themselves more productive. Now granted this is based on the assumptions that the period of time is reasonable, and that Jane won't get rich enough to bribe a couple Senators to change the law, but the point is that reasonable IP laws can work to make the market function in a way that better benefits society at large.
A final note, I would be careful with this logic. Twisting the freemarket to achieve societal gains is the basic logic behind minimum wage laws, tradable pollution credits, vice taxes, and many other things which arguably make society better. Properly set rules and regualtions can internalize market externalities, which in turn can lead to market forces that more perfectly reflect societal value and policy choices. Think about that when considering the alternative slave-waged, smog (cars and cigarettes) filled world an completely unencumbered market might create.
You have the right idea, but the terminology is wrong. He might not have known he was helping them infringe (though I sincerely doubt that), but would say he was certainly reckless in thinking that infringement was not going on. That is to say an average reasonable person in his situation, knowing of the activities present on open, unregulated bittorrent sites (mininova or isohunt anyone?), would have foreseen the likeilhood that his open and unregulated site would have been used for copyright infringement, and despite knowing the risks, chose not to put in any safeguards to prevent the illegal distribution of copyrighted materials.
In that sense he could have been criminally cupable. Now whether the statute itself punishes people for this particular mens rea, I do not know, and frankly do not care to look up right now.
Well there you go, possible prior art. Get in touch with ATI.
I never made that statement. I said, the fact that it was only done twice in a competetive industry with many companies is evidence that it might not be as obvious as you think.
I should note that what is obvious and what is not obvious is a question of fact and depends on far more information about the state of the industry than I have knowledge of. I regret not mentioning that caveat here, like i did in some of the other posts in this thread. An while I agree and will concede the extension of moving from integer to floating point and from single to multi-processor might be logical progressions of the idea. The implementation of those concepts as compared to the implementation of previous art might be radically different. Again, it depends on the facts and what SGI's patent covers. (I will admit to not having read it, or reading a description of ATI's allegedly infringing design.)
I worked at Nothrop Grumman's aerospace division for 2 years before going to law school. Do not imply that I have never been or do not know about the business of creating things. (Some of my work helps guide their new UCAVs). Attack the argument, not the person.
Like I said to the other reply, from what I'm reading in the other posts, ATI's technology came to fruition circa 2002, while SGI filed for its patent in 1998. Four years is not "simultaneous," especially in the computer industry. Just look at the CPU's from four years ago. Could you honestly have predicted in 2002 then that multi-core CPU's would be commonplace on laptops or even desktops? In 2002, I was the only person in my entire college dorm (~700 people) that had a dual-processor system. I bet I could go through it today and find at least 50% of the people have an multi-core system.
Even if they did both invent simultaneously, would the fact that two out of how many graphics chips companies (S3, Rendition, 3dfx, Nvidia, Intel, ATI, SGI, PowerVR, 3DLabs, Matrox at a minimum) came up with this technology really indicate that it was an obvious natural extension? ATI probably has a prior art defense if they indeed did invent this at the same time as SGI, but I would sincerely doubt that they could claim non-obviousnes. It's not like SGI designed a 4 vertex shader card and ATI came along and made an 8 shader model.
Exactly my definition. Patent law protects against reverse-engineering. If I have a patent on A, and you reproduce what is basically equivalent A you are liable for infringement, even if you reverse engineered it or came up with it all by yourself. (Note: what can be "equivalent" is really complex and depends on the type of patent. I will not get into that here.) Reverse-engineering is only protected under trade secret law, which involves innovations that have not been patentited. Thus, if I had a trade secret A, and you independently reverse-engineer and come up with A, I have no right to sue you for trade secret misappropriation.
Yes, all of what you said is true, but SGI filed for the patent in 1998. Meanwhile, IIRC another post said ATI's work came about circa 2002. In a fast developing industry like one would be hard pressed to call 4 years simultaneous. As far as not bieng novel, which is what your person skilled in the art defense goes to, we would need more facts, but the fact that in four years, only one other company out of an entire industry (SGI, ATI, Nvidia, Intel, S3 to name a few) came up with this independently is strong evidence that their innovation was probably not obvious.
I am an IP Lawyer and patents are not about just protecting stolen research, though it does. They are about protecting you investment in a device that is non-obvious and innovative (you got that part right). What this means is that even if ATI did invent this all by themselves, if SGI invented it before ATI, they are entitled to sue.
You are confusing patent law with trade secret law, which does protect from missapropriation and stealing, but requires that you keep your innovation secret, which you cannot do if you file a patent. The two laws are for the most part mutually exclusive.
Well for starters, he did create the knowledge. It didn't come from the ether. If society does not give him some way to recoup the cost of creation, like right of sale or right of exclusion, then what incentive does he to create?
And let's ignore the whole creation for its own sake argument. Those people "create" regardless of whether there is or is not copyright law. The key question is do you want to encourage those who can create, but would rather earn a living, to create as well? If yes, you have to be able to let them make a living by creating (i.e., property rights and copyright law). If no, then you accept the cost to society, which is the loss of the knowledge they did not create.
Note: This is not a talk about the Mickey Mouse Extension, or any of the other issues with contemporary copyright law. This is just an argument for its need and purpose on a fundamental level.
Copyright isn't just about protection for protection's sake. Copyright law is about giving economic incentive to create knowledge/information by giving the creator limited property rights to that information.
Take art for example. While it is true that a lot of artists create art for its own sake, copyright law gives incentive to other artists, such as Thomas Kincaid, incitive create more art because they can make a living off it. Without copyright protection, Kincaid and artists like him would face a problem because every painting they created could be copycatted, driving down its sale value and thus the money they can earn. If the value gets too low, these artists are forced to make a choice: food or art. If they choose food, they go out and get a job that'll pay them, and we lose their further contribution to art and however it benefits society.
Thus, the oppurtunity cost of no copyright protection is not companies having to create protection schemes, but the loss of information and knowledge not created because people have no monetary incentive to do so.
Ok, so if merely declaring something a right is enough to make it so, then I can declare that people have a "right to take from other people that which the takers want" (i.e., a "right to steal") and refuse to follow any laws to that prohibit it.
I am not disputing your assertion that there might be a "right to gamble," but I would like to see better logic for asserting it than "It is because I say it is."
Instead, this law is Congress exercising its police powers enforce it's percieved notions of morality in the U.S. It's more like a country banning U.S. movies because they did not like the sex or violence present in them.
Encouraging innovation that would be otherwise economically unfeasible is the exact rationale behind the patent system. see here. It would seem that if we have a market deficiency here, then we should be reforming the patent system to allow for companies to recieve a return on a 20 year investment. For example, we already allow drug companies to patent drugs before they get FDA approval so that companies do not lose the cost of testing if the drug is somehow unpatentable. How exactly you'd extend that logic to this field, I do not know, but it's worth a look at before we start throwing tax dollars directly at the problem.
considering how many "non-profits" lobby congress
Yes non-profits (specifically 501(c)(3) non-profits) lobby congress, but there are tons of restrictions on what they can and cannot lobby for or against. Any violation will result in the revocation of their tax-free status. Most of them usually get around this by registering a sister corporation (i think it's 501(c)(4), though post campain finance reform most of them might be 527's) and have that wing do all of the lobbying. They also usually take care to seperate the streams of funding for each operation. Google.org by going for-profit avoids this hassel from the lobbying perspective and can directly use their funds for any lobbying they see fit.
Yes, but the issue the grandparent was arguing was not the notion of DRM. It is whether the French government has a right to force Apple to open up its trade secrets to other companies. By forcing Apple to open up iTunes (if that were to happen), the French Government is effectively taking away a fundamental property right, the right to exclude, that one could argue Apple has. After all, they created iTunes and the iPod by themselves and are largely responsible for the success that it became. The French Government is now coming in and saying, "Good job. Now share with your competitors." This bad policy, since it discourages future companies from taking risks like this, which is what the grandparent was trying to get across. If this were the U.S. Government doing it, Apple would probably have a 5th Amendment Takings Clause claim on their hands.
Actually the errors in the 2004 exit polls are due to the fact they were horribly unrepresentative. Link. In class the other day we in fact looked at some of the polling data and the main problem with most of the skewed exit-polls is that they were polling a skewed segment of the population. The particular poll I looked at from a precinct in Virgina was 60% women, 40% men. There are also other factors, such as the one the article points out, which is that Republicans are les likely to participate in the poll. Collectively, these can really skew the polls. What happened in 2004 is no different than the "Dewey defeats Truman" election. In that election pollsters used data collected from phone surveys to predict that Dewey would defeat Truman. What they did not realize back then was that only affulent people owned phones and that affulent people were the bulk of Dewey's base, ergo skewed results and a Truman victory. Exit polls are only as good as the methodology on which they are based.
Ok so I've been interning down here and gotten to watch this whole thing unfold, albeit from a distance. The basic gist is that the judiciary committee actually did a pretty good job of creating a compromise, by allowing a lot of ammendments to the bill to be brought up, many of them specifically reinstating sunset provisions on all of the controversial sections. This in effect would probably have meant the demise of the Patriot Act the third time around because, even though a lot of Republicans voted for the bill, many of them had reservations as can be seen by the motion to recommit the bill (ie send it back to committee, which would have effectively killed it) which only lost by 9 votes.
The main problem came in the Rules committee, which marks up the bill and sets up procedure for its debate. Rules basically gutted out all of the significant amendments and only allotted time for the consideration of rather menial ammendments that would either not pass at all or be so inane that their passage would not make a dent in the bulk of the text. This is what effectively killed any effort to affect meaningful change in the Patriot Act. I have no doubt that the reinserting of the sunset provisions (at least) would have passed if it were allowed to be offered. Of course, that's probably why it was never offered.