Not so fast. Spin doctoring is no substitute for substance.
As Caesar used to say, "fere libenter homines id quod volunt credunt" (people are ready to believe what they want to be the case).
The fact of the matter is that New Zealand has passed a law with some restrictive language, but this is far from abolition. Broad swaths of software patents can still be granted.
The rationale here was that they still wanted to allow patents of machines and devices and they had to draw the line somewhere since software these days is embedded in almost everything. I think New Zealand has a very good set of laws in place and has shown remarkable courage to pass this anti-software-patent legislation. Unfortunately, their legislation to support government surveillance and software backdoors is really terrible.
Since Mueller isn't a lawyer, and his only other credentials are being a paid lobbyist, yeah it matters. Sure a lobbyist might be correct, but why would you trust them for information to begin with?
And looking at his post with a sceptical mind would have you learn his only third party source is a magazine whose tag-line is "Maximising IP value for business".
Even if correct his post is blatant propaganda. In fact, I'd go so far as to question why he chose today to register an account on hacker news. This isn't the first patent related news we've seen.
Your personal attacks really don't have any relevance to the legal questions at hand. Trying to muddy the discussion with irrelevant speculation about people's motives is totally unnecessary when the legislation is there for any of us to read.
> Trying to muddy the discussion with irrelevant speculation about people's motives is totally unnecessary
In an ideal world, where we all had an infinite amount of time to research any and all items of controversy in their entirity, I would agree with you.
In this hyper-specialized world, where we basically look to others to do the research and summarize for us, motives are extremely relevant and it is the height of naivety to pretend otherwise.
Everyone has motives and biases but it's not fair to attack someone in this forum just because you happen to know their motives and biases. I don't see your contact info or bio listed in your profile -- how are we to trust your motives without knowing more about you?
We should discuss ideas on their merits rather than trying to psychoanalyze or dig up dirt on the commenter.
No-one has time to become an expert on absolutely everything. To some extent, we have to choose who to listen to, and then trust that they are speaking true. Anything else is completely unmanageable. So your argument, while logically correct, is not applicable. In the real world, we don't take the sex offender's word that our child is safe on its pure merits.
When someone with a long and vivid history of acting against the interests of the community speaks, it is on them to overcome the prejudice against them, not on us.
I don't get it. Let's stipulate that he is an Oracle puppet. Why would that incentivize him to lie about what the bill actually covers? Regardless of his incentives, is he wrong that not all software patents would be prevented under this bill?
Disclosure: I'm a Microsoft employee, so I probably have some devious motives, too.
It is his job to create a perception that his side is winning. Because perception drives behavior and affects reality. Therefore every event is spun to make it look as good as possible for the pro-patent side so that actual innovators will get demoralized about resisting that tide.
No, I do not know why someone would consider it worth their while to pay for this. But someone apparently does, as is evidenced by his series of extremely confident, widely covered, and provably inaccurate articles on how the Oracle lawsuit against Google was going.
@btilly My articles on how the lawsuit was going weren't "inaccurate". The district judge ruled against the copyrightability of the declaring code Oracle asserted, and that decision is on appeal. The parties have completed their briefing, numerous amici curiae ("friends of the court") have made submissions, and the appeals court will hold a hearing in a matter of months.
The inaccuracies started with your claim to be an "independent" analyst when you were actually a paid shill, and only got worse from there.
You are right that there is an appeal - there always is. But consider that the judge the first time around ruled nothing like you claimed would happen. On anything. Why should we expect the appeal to be different?
@btilly In district court, the jury identified copyright infringement, was hung on fair use (which means that this would have to be determined by a new jury if the relevant code is found copyrightable), and the judge overruled the jury to the effect that the court additionally ruled that certain test files I had published in January 2011 were indeed infringed. The key thing that was missing was copyrightability. You're right that the appeals court might affirm the district judge's ruling, but we'll know in early 2014 what comes out of this. The decision at the appeals court will be made by a panel of three judges, which is quite different from a decision made by just one person.
I should note that it was written at a time when you were still claiming to be independent. You know, before you faced the fact that your name was going to be on Oracle's list of paid lobbyists and so you admitted to it up front in the way that made it look as good as possible.
He disclosed his relationship with Oracle four months before the judge asked both companies to "name their shills" [1,2]. It was a highly unusual and controversial order [3], so it's not like Mueller, or indeed anybody, could have predicted this and "come clean" in advance.
Also note that Oracle had that one name on its list. Google had a much longer list. Further, I think the judge erred by not requiring both sides to disclose relevant PR ties, because really, it's the PR companies that oversee the shilling [4, 5]
Basically, being an Oracle puppet is an extremely negative heuristic for being a useful voice on anything related to software IP. Absent compelling evidence to the contrary, I am inclined to ignore any and all opinions of said puppet.
And FWIW, being a Microsoft employee defending an Oracle stooge doesn't play all that well either.
I can certainly see how being an Oracle puppet would make it hard to trust his coverage of the Oracle/Google spat. I don't see how it affects his take on the contents of the NZ bill, particularly since the text of the bill is available and no one has countered his assertions!
Also, I'm not "defending" him. I don't know if he is or is not a shill, and I don't care. But he made verifiable statements about the content of the bill. All I want to know is, are his statements wrong?
HN is turning into a conspiracy paranoia breeding ground these days. Who cares who he works for, is the information he's presenting sound? Also dismissing it as unsound just because you disagree with his possible motives doesn't make him a "liar" or a "shill", it is just laziness on your part to try and dismiss him out of hand or trying to verify the evidence presented on your own.
The point was that people who have financial interests can still provide useful information for the community. Of course you knew what the point was and decided to take us on a pedantic tangent.
Another point I could make is that analogies don't have to be perfect to be useful.
Another point might be that the people making ad hominem attacks on FM aren't actually adding anything constructive to the discussion while he did. In fact his contribution to the thread added more than everyone elses' combined.
And while I don't really care for FM himself, there are many people who spin and editorialize heavily that are still very much worth reading. If you're interested at all in tech patents, he's one of them along with whatever ends up replacing Groklaw.
The point was that people who have financial interests can still provide useful information for the community.
I wasn't questioning that. I have no doubt the information he is articulating is valuable, but who is benefiting more, us, himself or his client? Regardless of how pedantic I'm being, your point is slightly flawed and should be called out. I don't feel it's worth attributing merit to people's efforts without understanding their behavior first.
There financial interests are very different and thus the information they create can lean one way or another. One is a paid consultant and another is a full time salaried employee. The one makes more money directly by benefiting the client (Mueller) and the other one makes more by equity and control (Cutts).
When it comes to money, people are largely motivated by 3 things: control, equity, and cash (which all subsequently translate quite nicely into money/wealth) however, each one can manifest itself very differently. Someone who makes their living by advising clients has a very direct interest in cash, so it's more obvious that his/her behavior is in line with ensuring that cash goes into the bank first and foremost.
> When someone with a long and vivid history of acting against the interests of the community speaks, it is on them to overcome the prejudice against them, not on us.
Who has a "long and vivid history of acting against the interests of the community"? It's clearly not Müller: [1].
Software patents are an abomination. I could stomach copyright on software, because at least one is still permitted independent implementation and expression. I can't copy your code, but I can rewrite it.
Software patents on the other hand put a fence around ideas themselves. You can't draw a cursor using XOR by implementing it yourself, period, for 20 years.
The patent system is deeply broken, and it doesn't even stop big players anyway. Really, Apple successfully sued Samsung, did it stop Samsung from taking over half the market? Does $1 billion in fines really matter or Apple or Samsung over the long term? By the time these cases are settled, it has already played out in the consumer marketplace anyway. You can't defeat consumer success with patent attacks. Microsoft's Android revenue shakedown won't replace the death of Windows if it happens, and it won't make Windows Phone/Surface RT a winner.
It's a game only lawyers, IP trolls, or paid industry shills love.
"Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement." -- John Carmack
This is obviously not true in many cases. There are countless algorithm problems where decades and thousands of pages of published literature on the problem go by before some researcher manages to make a material advance. Computer science is full of cases like this.
If all of the interesting problems were so trivial to solve, they would not be "problems" by definition. The idea that smart programmers could solve these problems any time they wanted to if they put their minds to it is unrealistic. They are considered "hard problems" precisely because countless smart programmers have failed to find a solution after no small amount of effort.
Well -- there are hard problems -- and then there are hard problems.
It seems that a lot of patents are being granted for solutions to problems that are only moderately difficult, if even that. Certainly, I have seen a number for which the solution seems quite standard given the problem. I think what happens here is that new technologies create new problems, which though not deep, are novel. These are solved in quite standard ways, in many cases; but since the problem is novel, technically, so is the solution, so the PTO grants a patent for it. And a large fraction of the patents being issued are of this nature.
I think the solution is to restrict patents to problems that are demonstrably hard -- of the kind that you describe, where there is objective evidence (in the published literature, for example) that people have thought about the problem for some time without solving it.
The key here is that patents are supposed to be non obvious to those "skilled in the arts" and herein lies the rub: who are those skllled in the arts? In my previous career (wireless and IC) I saw most patents as trivial for someone skilled in the arts: they were mostly byproducts of routine engineering design work. They were novel only in the sense that you are probably the first to work on a specific form. Yet they could appear rather deep and profound to the untrained eyes as you need a lot of training to be skilled in the arts in the first place. Can patent examiners truly judge the novelty of these patent applications?
And the funny thing is: if you come up with some real algorithm for some real hard problem it is unlikely that your algorithm can be protected by a patent, certainly not in its general form. The true algorithmic nature of your solution is likely too abstract and mathematical for a patent as patents do not protect laws of nature (physics and math qualify as laws of nature).
> It's a game only lawyers, IP trolls, or paid industry shills love.
I think it's a major problem when something like 60% of all IP litigation is over software patents, a relatively obscure area of the law until recently, but I disagree with this statement. I worked for two entrepreneurs who founded real R&D companies and considered patents to be a basic protection that allowed them to operate a small R&D company independently of a massive manufacturing company. These guys couldn't be further from the description of "lawyer" or "IP troll" or "paid industry shill." They're PhD's who have spent their entire careers inventing.
If you characterize everyone who relies on the existing patent system as a "lawyer" or "troll" or "industry shill" you'll make no progress in achieving the reforms of the system that need to happen. You cannot figure out how to solve a problem while understanding only one side of the issue.
"R&D company" that ships no produces seems a bizarre concept to me. If you're doing pure research and you don't want to manufacture anything, then outsource it, or partner with someone who can and sign them to an iron-clad contract protecting a trade secret.
I'm be curious if anyone can even name any "pure R&D" software companies that don't ship products, yet created meaningful advancements. Even in the realm of hardware, did RAMBUS really need patent protection?
Trade secrets you share with other companies are fragile rights. Do you want to invest a ton of money into a company built on a property right that could evaporate at any moment? Re: meaningful advancements, I think MPEG is a decent example, as well as some wireless companies (it's really hard to draw a clean line when it comes to wireless, because a lot of techniques could easily be implemented on a general purpose computer or in an ASIC).
As for RAMBUS, the memory industry is an interesting example. They all work on developing memory technologies, then pool the patents. The patents function to prevent free-riding on the collective effort by any particular company. The wireless industry works similarly (LTE, etc).
I don't mean to argue that the law should protect particular business models. But I think in the abstract, it's useful to be able to bundle up the fruits of some R&D into something that can be the subject of market transactions. I think it's worked amazingly for the semiconductor industry in the model of ARM, for example. The law can provide a mechanism for doing that. I don't think trade secrets are quite it, and I think we're really seeing the limitations of patents for that in the software realm, but I think there needs to be something. Otherwise, it'll be a race to see who can outsource most effectively to China because that's what matters when ideas can't be protected.
Unlike other microprocessor corporations such as AMD, Intel, Freescale (formerly Motorola) and Renesas (formerly Hitachi and Mitsubishi Electric),[28] ARM only licenses its technology as intellectual property (IP), rather than manufacturing its own CPUs.
> I'm be curious if anyone can even name any "pure R&D" software companies that don't ship products, yet created meaningful advancements.
There are many examples (in addition to ARM) -- just think "research labs". Be they government-sponsored, private or academic, their primary function is R&D, not shipping products. One example of a private lab, off the top of my head, is SRI.
Also, though you may claim they don't count as "companies" -- universities.
Edit: Additionally, in the realm of hardware and semiconductors, most companies these days are actually fabless [1]. There is a study claiming that patents facilitated the entry of specialized design firms into the market, although incumbent industry executives didn't look on them too favorably [2].
BTW, Rambus is not the best example. They created a lot of controversy when they asserted their standards-essential patents, the same thing Motorola is doing these days. Whether they "really needed patents" depends on which side you're looking from. But for the industry in general (and I am horribly oversimplifying very nuanced conclusions), the answer seems to be yes for startups, and a mixed bag for big ones [2, 3].
rayiner wasn't talking about software. Software companies have an easy time "producing" their products. It's much harder in the hardware sector or when you invent car technology. Getting into those markets is expensive. Forging a deal with a car manufacturer, for instance, would put you in an extremely weak negotiating position. Patents give you some leverage and a defense mechanism when they go and use it without your permission.
So I also think ARM is a valid example of companies that wouldn't be alive if not for the patent system.
All that said, I'm not in favor of patents at all. Thinking of something should not give you ownership over a broad concept. Information should be shared freely, to improve upon and so everyone can enjoy the invention.
I disagree with this sort of extremism. What should not be patentable are basic "way of doing business" patents.
On the other hand, if someone slaves away for years and develops a truly new and unique compression technique, I don't see why that shouldn't be patentable. How is that any different from, say, a steel foundry developing a new unique alloy?
That's not as black and white as it seems. An implementation of a compression algorithm is typically a particular library written in a particular computer language. A specification of a compression algorithm is typically described in a specification document such as an RFC. We don't call an RFC an implementation.
What is patented is a method of compressing data using algorithm X. If you can thing of something else which wouldn't be considered compressing data using algorithm X, then you're free to use algorithm X for this new and inventive purpose.
Now you're nitpicking. The only reason I mentioned RPC's is as an well-known example of a specification, to contrast that with a concrete implementation.
My point is that an algorithm is more general than any particular implementation. They aren't concrete. They're abstract. (And of course if patents only covered one concrete implementation then nobody would bother getting them.)
I don't think it's nitpicky. Often the bulk of the work is implementing a given algorithm efficiently, instead of just writing a formal paper with lots of hand-wavy "a sufficiently smart compiler..."
I would argue that advancement in software is too damn important for the humanity as a whole to be hindered by the preferences of that person. Software will ultimately change us. Shape us.
I think that software will advance more rapidly without patents than with them, even if that means having less immediate financial benefit for the individuals involved in the discoveries.
But to take note of the stakes here, banning software patents fully would eventually end patents as such. The problem for the patents in general is that nearly all machine methods are going toward a general purpose machine, a computer, telling a robot what to do. So all innovations here are going to eventually be expressed as software (even if they involve innovations chemical reactions or factory automation).
I think it will be better ending this system but there are a lot of companies whose intellectual capital is tied up in patents and these will fight hard to postpone this end.
For example, how much have software patents ("junk patents") contributed to the USPTO's balance sheet? Is this relevant? In this position, can the USPTO self-regulate? I ask this not rhetorically, but sincerely.
If the small countries that restrict software patents had the market size of the US, it would not surprise me if they allowed more unrestricted patenting of software. But China stands as a counterpoint to the idea that market size is the differentiator.
Perhaps it is the willingness of US consumers to pay higher prices. This enables patentees to pass the expenses of patent office fees, court fees and lawyer fees to the consumer (even when the patents granted were not practiced to make the product: they're "junk"!).
I don't think the original patent idea was bad, only the recent years mutated it into an abomination.
A long time ago this model made sense. Inventors would invent and would be protected to benefit exclusively for a very short period of time (e.g. one year). After the grace period, it would be a free for all again, and people would move on.
Having patent durations of >1 year is obviously ridiculous, particularly 100+years protections etc.
My biggest gripe is that software gets double protection - copyright and patents. I would be ok with software patents if that meant you had provide the source code as part of the patent application, and if approved it would go into the public domain.
It's not really double protection, because patents and copyright cover different things. Copyright only protects the exact expression of what some software does. Patents cover the functionality of that software. In fact, since software per se is not claimed, the claimed functionality could be implemented entirely in hardware and still be covered by the patent.
No amount of copyright can protect the functionality, because 1) there are countless ways of implementing the same functionality and copyright only protects your specific way, and 2) copyright cannot legally cover functionality anyway.
As such, providing source code in a patent is of little value. (Although I have seen patents containing source code.) As long as you can reimplement the method being claimed by reading the patent with little undue experimentation, it has met its "enablement" requirement.
As Orwell wrote, "the English language ... becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts."
Considering that patents are entirely a government creation, "ban" or "outlaw" does not apply, for such language treats patents as something apart from the state. Perhaps "stops issuing" would be more accurate, but it's not clear from the article whether that's actually the case.
I don't know. Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part.
Legal concepts that are derivative from the natural right to liberty, e.g. freedom of speech, are protected by the government, but that is not the same as them being created by the government. An individual certainly has liberty, and thus freedom of speech, in the context of a state of nature. He does not, however, have a guarantee that an organization with a monopoly on the use of force, i.e. a government, will protect that liberty.
I can't believe that there are so many people in a scientific, technical, industry like the software industry that believe in something as facially superstitious and handwavy as "natural rights."
I can't believe that there are so many people in a scientific, technical, industry like the software industry that believe in something as facially superstitious and handwavy as "natural rights."
As a first pass at a definition, anything you could do in the absence of any other people stopping you from doing it could be considered a "natural right."
That's not superstitious or handwavy, and I didn't have to belittle my audience to express it.
> Contemporary political philosophies continuing the liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Robert Nozick, Ludwig von Mises, Ayn Rand, and Murray Rothbard.
My problem with "natural rights" is that they're a way to take one set of arbitrary priorities and elevate them to some sort of law of nature, without having to justify them on utilitarian grounds. You have a right to property but not a right to education. Why? Because the former is a "natural right." Its no different from resorting to "because the Bible says so." Its also used to undermine democratic consensus in the same way as resorting to theology. Oh, everyone thinks there is a right to education? Wrong! Because the Bible says so... Err... Because its not a natural right, just some creation of government.
Yeah, it often seems they're a disguise for moral absolutism. Some convenient rule system that you can latch on to and then use to decide if things are good or bad. Tax is the worst thing there is, for example.
But, natural rights are in the same category as human rights, and there are many human rights that I value despite their nonexistence as laws.
It seems to me that natural rights are often a covert argument for male supremacy over women and children. A man is stronger than a woman, therefore he has a natural right to dominate her. The same goes for children. A child has no right to anything from its parents, because if you must depend on someone else, you wouldn't be free to obtain it in the absence of other people.
But dependence is how we are born into the world. Education is given to us while we are in a state of dependence. Is it really only that educators have the right to educate? Perhaps, if you really don't believe in assigning rights on the basis of need.
In the libertarian mindset, it's almost as if the government represents one's parents, and the romanticized state of being alone in the wild represents freedom from one's parents. Actually I believe that it's next to impossible for anybody arguing for an extreme position like anarcho-capitalism in the typical cult-like manner that we see to be reasonable, because doing so would require making the connection from what they're proselytizing to their own lives and processing their own feelings about authority.
> You have a right to property but not a right to education.
I don't believe in "natural rights", nor do I believe concept has any real value. That said, you're misconstruing their argument.
Someone who believes in natural rights would say:
> You have a right to own property, but you aren't entitled to be given property. Similarly, you have the right to get an education, but you aren't entitled to be given an education.
There are no legal rights in the state of nature. There is no liberty in the state of nature. These things don't exist as features of the land, they're concepts created by humans to curtail specific types of human behavior.
But legal rights are synonymous with might-makes-right. A natural or human right is something we would like to have but cannot guarantee until it is made into law. I am just asking whether laws about intellectual property correlate to natural rights in the same way that laws about physical property do, since the original claim was that they are 100% fabricated.
Whether they're synonymous is entirely a matter of your world view with respect to the origin of the state's monopoly on the legitimate use of force, which is the defining feature of a state. Do individuals delegate their right to the use of force to the state, in the process giving them a monopoly on it? Or do states impose said monopoly on the individual, in effect overriding their natural rights? To avoid committing a fallacy here: or is there a third option?
The fallacy is that the choice is presented as either/or instead of both/and. Some of my natural rights are embodied in law, some of them aren't, that's how it goes.
Well, maybe I didn't realize it though since I don't spend much time thinking about my freedoms in the state of nature, and people were making all these arguments about physical property being a natural right.
While intellectual property is almost entirely a legal creation, government is not necessary for property to exist. Indeed, John Locke considered property to be a natural right along with life and liberty.
The point is that intellectual property is property in the same way that quarks have "color." It is a relatively novel legal concept compared to physical property. In the US constitution it is completely distinct from other rights: You are assumed to just have rights. Not among the assumed rights are patents and copyright, which are a government granted monopoly.
I agree with you about patent and copyrights, but I think it's important that people view essential rights like property rights and freedom of speech as being truly inalienable -- that individuals have them as long as right and wrong exist.
>property rights and freedom of speech as being truly inalienable
That's a simply preposterous belief though, and we should treat it as such. Many people have their rights to property and speech infringed on a regular basis. There isn't even a consensus on what those rights entail, as is clear any time 'hate speech' is brought up.
"Inalienable" is quite an idealistic and American word in this context. Nevertheless, the US federal constitution is written with some assumptions, and a "sense," That is, it is addressed to the government, from the people and the states, which predate the existence federal government, and which can undo the federal government through a constitutional convention. The ninth and tenth Amendments spell out the assumption that rights are not granted by the government, but powers are delegated to the federal government. Rights are open-ended. Powers are enumerated. This is an elegant way of making the constitution future-proof (so beware of people who start a sentence with "The Framers never had...").
Copyright and patents are a notable exception to the above. They are an explicitly granted monopoly, through an explicitly enumerated power of the federal government. The "property" part appears nowhere in the constitution and is a tendentious word added later, like "pro-life."
> The "property" part appears ... is a tendentious word added later, like "pro-life."
Don't be silly. The word "property" in "intellectual property" is used in its legal sense: a particular and well-defined set of characteristics that a bundle of rights can have (such as being transferable to other entities, and binding the world).
The definition comes from common law, and certainly predates your country's constitution.[1] By the legal definition, modern implementations of patents, copyright, and trademarks are very definitely property rights (in the UK and USA anyway).[2]
Whether they should be is a different question, but at the moment, they are. E.g. in my country, the relevant Act begins with "Copyright is a property right" - that isn't trying push a point of view, it's defining it as a property right. To use a programming analogy, it's telling you that Copyright inherits from the class IntangibleProperty (which itself inherits from Property), which gives it a bunch of preexisting attributes and methods.
[1] Which isn't to say that copyright etc. was a property right back in 17whatever - especially as, back then, choses in action were generally untransferable - only that "property right" was defined back then.
[2] Well, mostly: in some countries (IIRC not the US), writing a work that qualifies for copyright also gives you a few non-proprietary rights, called 'moral rights'. If you're being picky you could argue these aren't technically "IP" rights, but they're usually included under the IP banner for convenience.
That's the exactly question we're discussing. The legal term "intellectual property rights" steal gravitas from more important (physical) "property rights", which are natural rights and are essential in a free society.
Your point is that "intellectual property" is a legal term. No one disagrees. The point of the people railing against the phrase "intellectual property" is that the phrase is misleading and that it should be replaced with something more apt. Perhaps you are missing that point?
> The point of the people railing against the phrase "intellectual property" is that the phrase is misleading
I venture you may have missed my point. The phrase isn't misleading, it's correct.
Having the word "property" in its name isn't what makes it a property right. It's a property right because it behaves as a property right (ownable, transferable, binds the world). "Replacing [the word 'property' in IP] with something more apt" is like insisting that you can't call mallards 'ducks' - they're still going to walk like a duck and quack like a duck.
When I said "Whether they should be is a different question", I meant 'should the right have this set of legal characteristics', not 'given that it has this set of characteristics, should it be called "property"'.
Whether the use of the word "steals gravitas" from physical property rights is neither here nor there. Law isn't poetry, it's programming. Renaming a class doesn't change what methods it has.
In this case, intellectual property "rights" are not natural rights because they are neither essential for a free society nor essential to the survival of an individual. My objection is exactly that intellectual property rights do not quack like natural rights and that legal terminology (and eventually laws themselves) should respect that.
Referring back to the U.S. Constitution, a limited monopoly was granted "To promote the Progress of Science and useful Arts". No one would argue that those aren't noble goals, but one wouldn't be oppressed if his patents and copyrights were violated.
If one's home or savings were stolen or unfairly confiscated on the other hand...
If you want to talk programming, it is a design bug to label patent monopolies as "intellectual property rights" because the "property rights" abstraction does not fit the idea of limited monopoly powers. Because, among other reasons, violations of "property rights" have side effects of a different kind and magnitude than a failure to respect monopoly privileges.
To be clear, I wasn't making any comment on whether IP rights are 'natural rights' or not, only on whether they're property rights (which ISTM is a much more concrete question). Apologies if I wasn't clear about that. (On the main point, see my reply to your other post).
Is a car red? Some cars are red, some aren't. Some red things are cars, some aren't.
Government-granted monopolies can create property rights, sure. Other property rights (even intangible property rights) exist that are neither government-granted nor monopolies - obvious example, a debt. And a government can grant a monopoly without creating a property right, e.g. by choosing to award all its rail contracts to a single company.
I think the word "red" isn't a fair comparison. I'd use the word "love".
If Pat told Alex, "I love you", Alex would rightly infer that Pat had just expressed romantic interest. If Pat then said, "...like I love my dog," Alex would then rightly be confused (and angry).
In the same way, the term "intellectual property rights" overloads the phrase "property rights". It's a poor choice of words and since "intellectual property rights" is the neologism, it should change. Otherwise, we'll have to come up with a new term for natural "property rights" and teach everyone what that term means.
And debts are not properties, they are stipulations in contracts that can sometimes be transferable. There are rights involved with forming contracts, but they aren't the same as property rights.
AFAICS we just have different priorities in what we want the terminology to do. You're prioritising the impression that the term "intellectual property" creates in a layman, i.e. that it calls to mind an analogy (with tangible property) that is in many ways misleading. I'm prioritising the technical accuracy of it as a legal term per common law definitions of proprietary right.
So I think we'll just have to agree to disagree here, based on our different sets of priorities.
(As for debts, in English law they are choses in action, and so intangible moveables. See e.g. Lord Goff's comments in Lipkin Gorman v Karpnale [1991] 2 AC 548, p. 574 at [A]. So a debt isn't quite a purely contractual right: the difference is between a claim in debt, e.g. an action for the price, and a claim for damages. The former will often allow some kind of proprietary remedy - e.g. a lien over goods if the debt is from a sale of those goods, the ability to trace your title to the debt into other people's pockets (as in Lipkin, which was a purely personal action for unjust enrichment), or in some circumstances even a full-blown constructive trust (e.g. in a Chase Manhattan v Israel-British Bank type situation). The latter never will.
That said, I did perhaps choose a bad example, as the line can be a thin one. A better example of a property right that doesn't give you a monopoly might've been be an easement. (Freehold covenants are another interesting example, as starting in the mid-19th century, they've sortof morphed from purely being personal, contractual rights into being property rights)).
I can agree to disagree, though it's worth noting that intellectual property law is currently under review in courts and legislatures worldwide. It follows that the meaning of "intellectual property" is, among other things, a significant political problem right now.
The work "inalienable" implies that it's outside the moral authority of culture, society, and government to remove those rights. It doesn't imply that those rights can never be infringed. That is, violating those rights is immoral, not impossible.
In fact, the consensus that rights are infringed proves they exist. This is a correct example of the often misused phrase, "the exception that proves the rule".
But you are right that the specifics of weighing rights against each other are tricky. That's where cultures, governments, and legal systems come in. To be clear, those human organizations do not create inalienable rights, but they are responsible for enforcing them. And a failure to do so would be a moral failure, not an impossibility.
Well yes, as soon as a creature needs to expend energy to obtain a thing they plan on using later, another creature is going to try to obtain it in a simpler way: by stealing it. And so, even apes and birds have a concept of 'property': things that are theirs, usually cached food, that they will take pains to hide and/or defend.
With humans it isn't quite so clear. The default societal structure for humans is the band, which is basically an extended family unit. In a band, property is shared by the group. If a member of another band sneaks in and takes something, that's theft and will result in retaliation. So a concept of property exists at the band level. But I don't believe that individual members of a band have stuff they are allowed to use but no one else.
It's only in more complex societies that private property at the individual level definitely exists. But these societies also have some form of government, even if it's just a tribal chief.
So if by 'property' you mean private (i.e, individual) property, it's not quite so clear which came first: property or government.
Except that's not true. Monkeys are supposed to give the eggs or other food items that they find to the senior members of their group. But sometimes they'll eat them when nobody is looking, or if they create a diversion (like they'll call like a predator is coming)
so theft can be done in group, especially when there's scarcity
People can and do protect what they believe to be their property. Families and tribes can and do protect the territory they believe to belong to their members.
I like David Friedman's description of property rights not primarily as moral or legal constructs, but as mutually recognized commitment strategies which discourage trespasses. He points out that territorialism in the animal kingdom is similar to property rights (obviously without the existence of a state). Animals mark their territory (e.g. with urine), and other animals tend to respect those boundaries, because there is mutual understanding that the territory holder will fight a trespasser to the death if necessary, and the damage to the trespasser (even a stronger trespasser) will most likely not be worth it. Perhaps the territory holder would be better off just retreating, but what makes it "property" is the near certainty that he won't retreat.
I would prefer a more specific definition that would match more closely to people's intuition about what is and isn't a state, and also allows for discussion about what the state should and shouldn't do. If we define "state" as to include animals protecting their territory, I don't see how the term will be very useful in any discussion.
I think it's a specific rejection of the notion that there ever existed a time before governments. Governments existed, in some form, the moment particles started interacting.
I hadn't thought of it in those terms but I like that understanding of governments. A cell is a state, its laws are its DNA, and its borders are its membrane; and not just metaphorically speaking.
One useful reason to define states as such is because it's a definition that draws on the natural world. If states are only natural, and inevitable, then we don't have to argue about whether they are fundamentally good or bad.
Like most normal well adjusted people, I don't steal and I expect and find that those around me do the same. The reason my coworkers haven't stolen the keyboard off my desk when I go to get coffee isn't the government, it is just because they have some base-level respect for me. Clearly the concept of property, at least as it exists in my office, is not an artifact of some governing body. It exists despite that; it exists without any threat of force.
Or is that most basic mutual respect now "the government" in an office environment? If that is the case then we are basically removing any useful meaning from the word.
That's a good point. The last time I was reading about this I found out that some anarchists (pacifists, maybe) refer to this idea as "possession", to distinguish it from property. It's not "your" keyboard (in this case it probably belongs to the company), but you're using it right now, so it would be indecent to take it away from you.
Hmm, sounds about right. I haven't read much anarchist literature at all, but that meshes pretty nicely with what I know of anarcho-syndicalists.
Either way, I think it stems from the same basic human desire, probably hardwired, to not have things taken and to have some basic loyalty or respect to members of your 'tribe'. (After all, governments are made of people and those people must have thought the concept of 'property' was a good idea for some reason.)
So the reason I brought up physical property is because if that's not a complete fiction then it's bizarre for intellectual property to be a complete fiction. Governments don't create things out of whole cloth, the laws always correspond to something, even if they do it badly.
"the reason I brought up physical property is because if that's not a complete fiction then it's bizarre for intellectual property to be a complete fiction"
I am not following your logic here. The notion of physical property predates written records and codes of law, even if it has been approached differently by different cultures. The notion of intellectual property is a far more recent development that has nowhere near universal acceptance and requires a very particular kind of legal system to make any sense at all.
"Governments don't create things out of whole cloth, the laws always correspond to something, even if they do it badly."
No, laws are invented out of thin air with regularity and always have been. Governments create legal constructs for various reasons -- expediency, politics, religion, favoritism, etc. The history of copyright is a perfect example. Prior to the printing press there was no notion of copyright, and people made careers out of copying books. Alexandria had a law requiring anyone bringing a book into the city to give it to the library to be copied. Then the printing press was invented, and governments began to fear the mass dissemination of written material; copyright was invented to deal with that problem and the rest is history:
(OK, to be fair, the first "true" copyright law was created after that law was repealed and a bunch of businessmen complained about their lost monopoly:
The intellectual property laws are protections around concepts that existed previously. IP refers to trademarks, patents, trade secrets, and copyright.
Trademarks protect brands and go back a very long way; primitives would use them to distinguish themselves from each other, farmers would mark sheep, etc.
Patents are really protections on inventions. Inventions also go back a long way, although they were previously treated as trade secrets rather than open descriptions. Reverse engineering and a desire for openness instead of secrecy created the need for patents (I'm not saying the governments are doing a good job.) A chef's secret sauce is his intellectual property.
The idea of copyright stems from a desire to protect the older concept of authorship and goes back to antiquity as well; drawings in caves were certainly made by cavemen; the Greek philosophers certainly originated their words; narration in the bible is attributed to certain authors (although there is sometimes dispute here); Mozart (barely) survived on the patronage of his compositions.
That's all I mean by it's not a complete fiction: it's a set of protections around things that we already valued but that were started to get degraded by modern society.
What you are saying basically ignores the history of copyright law. Copyright was created not because society placed a high value on creative expression, but because of a desire by the government of England to censor printed material. Modern copyright was created when that system was abolished, not because of the plight of artists but because of the lobbying effort of publishers, who sought to restore the monopoly on printing they had enjoyed under the censorship system.
Publishers represent artists and take a cut. Of course they want a monopoly, otherwise how can they pay royalties to artists? Walt Disney was an artist, and what we have now is Mickey Mouse copyright law.
I'm not saying that IP laws are amazing by any means. I'm saying they are attempts to protect things that we have always valued on a moral basis: invention, creation, branding, and secrecy / privacy.
It doesn't even matter what the intent of the people creating the laws is, what matters is in practice whether people feel the laws protect those things that they value. The majority of artists feel protected by copyright law.
Read the history of copyright -- the Star Chamber, the Stationer's company, and how publishers lobbied for copyrights (using authors as a convenient excuse). Seriously, you should look at the actual history of copyright law. It was not created for the sake of artists. It was not created for moral reasons. It was invented for purely political and business-motivated reasons, nothing more.
"The majority of artists feel protected by copyright law"
So what? The point of copyrights is not to protect artists. The point of copyrights, at least in the United States, is to promote the progress of science and useful arts. The question is not about what artists feel, but about whether the majority of people feel that copyrights are working in the best interests of society. I suspect that most people would not care one way or the other about copyright if you were to ask, because most people ignore copyrights.
I also have my doubts about the majority of artists feeling protected by copyright law. Most musicians, authors, actors, painters, etc. are not even paid enough to live on and have to take second jobs. Either they have truly mastered doublethink or copyright is not really providing those creative workers with as much protection as we are expected to believe. This is under the current copyright system, which features the longest terms in the history of American copyrights and some of the most expansive copyright law ever seen.
Laws are programs. It doesn't matter what the programmer who wrote the program wanted the program to do. It matters how the program is used and what it does.
I agree that copyright law is terribly implemented (DMCA, DRM, expiration 70 years after death, 3 strikes rules, etc.), but nevertheless, I don't know a single artist (or knowledge worker) that doesn't feel that the Berne Convention provides them at least a minimal protection against outright plagiarism. Even the the most liberal Creative Commons licenses build on top of copyright, even BSD style licenses do.
I mean, would you be okay if I took your work, erased your name, and slapped mine in its place?
Do not conflate copyright infringement with plagiarism, they are entirely orthogonal. You can plagiarize work without violating a copyright. You can violate a copyright while giving full credit.
"I mean, would you be okay if I took your work, erased your name, and slapped mine in its place?"
In fact that happens all the time with work-for-hire copyrights. Anyone who works as a programmer for Microsoft, Google, Apple, etc. can expect to receive no credit for their creative work, only a pay check for having done it. Think of all the independent contractors out there who write software for big corporations, get paid, and get neither recognition nor credit for their work.
Take a look at movie and music sharing on the Internet, and what you will see is that plagiarism is almost entirely absent. Nobody is claiming credit for some musician's work when they share that musician's recordings online. That is probably copyright infringement (whether a particular act even constitutes infringement is determined by a courtroom battle), but it is not at all plagiarism.
The history of copyright is important here, because it explains things that otherwise make no sense at all. If copyright is about plagiarism, why is there no requirement that credit be given the actual author / artist / creator of covered works? If copyright is about paying creative workers, why is it that the vast majority of artists need to work a second job? The answer is that copyright is about neither plagiarism nor paying artists; it is and has always been about business and government interests. The reason publishers, recording studios, movie studios, and so forth have become so disproportionately wealthy by comparison with the people whose works they sell is that copyright as a system was designed with industry in mind.
Your original claim was that copyright is the legal embodiment of a widely held moral belief or of some generally held value. I am asserting that this is as untrue in the 21st century as it was in the 17th century. Copyright continues to be a system that is design for and which favors certain industries; artists are a secondary concern, just as they were when the Stationer's company lobbied for the Statute of Anne.
Finally, plagiarism is readily solved with technology; copyright infringement is inherently unsolvable. The solution to plagiarism is watermarking, embedding a hard-to-remove message in images/audio/video/text that identifies the creator (technical details omitted). This was studied in the 80s and 90s and at one time it was believed that there might be a market for such technology, as a way to combat plagiarism on the Internet. In the end, though, it worked out that plagiarism is not so important as long as everyone is being paid; copyright became the important issue online, with plagiarism being a secondary and far less important concern.
Plagiarism of something under copyright is copyright infringement. So, at least plagiarism is protected against in that instance. You could plagiarize Shakespeare though, and it would simply be a moral offense.
When you write code for a company, the company usually owns the copyright, not you. You've assigned copyright to them. Do you release all of your personal code into the public domain? Why not? If you use a free software or open source license, you're relying on copyright protections.
To reiterate, I'm not claiming that IP laws are a perfect match for longstanding morals about invention, branding, authorship, and secrecy, I'm claiming that they are better than a 0% match.
I'm not even disagreeing that IP laws as they stand grossly favor big businesses instead of creators. I'm just disagreeing with the claim that IP laws are 100% made up by the government and have nothing to do with our morals about wanting to protect creative work. I think we need better IP laws that correspond more closely to our morals about creation and less closely to our morals about capitalism.
Oh, I don't think it is a complete fiction either. Just for starters, something as simple as plagiarism is reviled with the law rarely being involved. We don't need the law to tell us that plagiarism is unacceptable.
What I do think is a fiction is trying to apply concepts meant for physical goods to ideas. Concepts like "theft", or being able to transfer ownership. It strikes me as the political/legal equivalent of what programmers do when they try to add a bit too much abstraction.
They saw a little bit of duplicated code about "ownership" and mistakenly though that the two concepts were probably related and rather interchangeable. As a result things become kludged with nothing working as well as it would if the concepts were left separate. Basically it is a botched attempt at optimizing for complexity.
I agree that conflating physical and intellectual property is a problem. I think we need a different laws that reward intellectual work directly instead of doing it by creating artificial value, e.g. with DRM, patents, lawsuits, etc.
There is a concept called stewardship, too. "I have a responsibility to this piece of property. I have a moral duty to safeguard, cultivate, and appropriate utilize this property. I expect that it will be passed on to another for usage at some point for some reason, and in recognition of that future steward, I will do my best to forward it in the best condition possible."
I don't feel like I'm doing the concept justice, but hopefully I'm conveying the gist well enough to distinguish from "ownership" and "possession".
"The reason my coworkers haven't stolen the keyboard off my desk when I go to get coffee isn't the government, it is just because they have some base-level respect for me."
- Do you really believe that? If someone wanted your keyboard their thought process - if conscious - probably follows the following: "If I take that and get caught then I'll likely be fired. So it's not worth me putting my monthly salary of $5000 at risk for a $50 keyboard" Well what if you do get caught? Just tell them they can't fire you! You won't leave the building!! Then they'll call the police and I'll be charged with a
I don't think it's good or bad. I just think it's entirely inaccurate to think that if someone covets what you have that they hold back due to a base level of respect for the other person. If that held true there'd just be no crime period in society because everyone would say "I'm not going to do that because I'd hate for that to be done to me as another human being"
"If someone wanted your keyboard their thought process - if conscious - probably follows the following: "If I take that and get caught then I'll likely be fired. So it's not worth me putting my monthly salary of $5000 at risk for a $50 keyboard" Well what if you do get caught?"
That is a depressing but thankfully unrealistic view of how people behave. In my office there are no specific rules about taking keyboards, monitors, or even computers off each other's desk. Once a year the department takes an inventory of the equipment to make sure it is still in the building, and once in the past five years an email was sent out to remind everyone not to take monitors home with them.
The reason nobody takes things from each other here is respect and courtesy. There are only about 100 of us in this building, making us a small enough group that we can trust each other. When things are truly stolen -- taken out of the building, rather than just moved between desks -- emails are sent out asking if anyone knows what happened. It is almost always the case that an outsider came in and grabbed something valuable, and that almost never happens.
Obviously this is not something that scales past a hundred or so people, but the point is that in small, trusting groups there is no real need for iron-clad rules or harsh punishments. People can and do behave respectfully and courteously.
Yes, I do. It is how I think, and I think well enough of my coworkers that I believe they think the same. I wouldn't assume that they don't think that way without evidence of it, since that is a vile thing to assume.
Are there some people without this respect who are held in line merely by the law, or fear of losing their job? Sure, of course there are some people like that. The fact remains that a notion of property/possession exists for the rest of the population; for the people who are not defective in such a way.
Not everybody would steal from those around them if they thought they could get away with it. To be perfectly honest, I am rather suspicious of anyone who assumes that everybody would steal if given the chance.
One thing to consider is the passive vs the active. The people in your office don't steal your keyboard because they have no need for it and/or they don't desire it. That's because they too are given one. That's because it's a very small cost to them to acquire one. The retribution that would come from taking your keyboard is completely out of whack with the benefit of taking it whether that retribution was becoming a social outcast or having the weight of the state applied to the crime. So they're rationale actors driven by self interest vs having any respect (or not) for you. The real test is when someone (rightly or wrongly) covets what you have. Perhaps they're genuinely starving or looking to feed their family. Maybe it's a step above that and they're quite poor and they perceive you to be well off. Those are the better situations to judge whether people are then constrained/motivated by only a self respect for you and/or a fear of state repercussions.
I get what you're aiming at but if you're holding the shotgun, that's not government. Government is when I cede the right to protect my forest with a shotgun in order that a government entity will do it for me. We give government a monopoly on force under the agreement that I generally should not be shooting people to protect my rights.
That's not entirely true, at least in the United States. That's part of the purpose of the 2nd amendment. We cede some of our rights to use force to the government, but things like Castle Doctrine and the 2nd amendment mean we also retain those rights in specific circumstances.
Another aspect of the 2nd amendment people often overlook (particularly gun control advocates) was that it was originally intended as a check to the power of the army. The idea being that should the government ever try to use the military to suppress the public, that an armed public would be able to fight back and presumably being bigger than the military, win. That theory has been greatly eroded in the last 70 years or so by the increasingly large gap between the weapons the military has access to and what the public has access to. Back when the constitution was drafted a rifle was a rifle was a rifle, and 200 soldiers versus 1000 citizens all armed with rifles, the citizens would likely win. These days with the military having tanks and jets and nightvision and all manner of other advanced weapons (including the much debated fully automatic rifles) means that your average group of citizens wouldn't stand a chance against the military in serious armed conflict.
>your average group of citizens wouldn't stand a chance against the military in serious armed conflict
I disagree with this - traditionally the US military hasn't fared very well in guerrilla warfare scenarios. Look at the number of deaths out in the middle east - fighting in city streets, that kind of thing.
I'd also wager that if the military was used against the populace, a great deal of the military would defect out of principle. So not only do you have an armed public in unfavorable conditions, our hypothetical evil government also has an unknown number of traitors in the ranks.
That leaves more indiscriminate options (bombs of various flavors) - and if things ever got that bad, we'd probably have other countries getting involved and even more defection.
In short, it's not near as simple as "government has tanks, therefore government wins".
In general, the point of something like castle doctrine is to maintain defense of life, not property. If I went down to the edge of my property and someone came onto my property and was not threatening me you can't then shoot them. The argument for castle doctrine is you can consider the act of home invasion itself to represent deadly force and can respond freely.
Castle doctrine is a states-only policy and the feds have no position on it. The second amendment states only that people's right to bear arms shall not be infringed, it doesn't state anything about the application of force.
I don't want to get into this debate on HN but there's not that much evidence that the 2nd Amendment was meant to be a check on the army. It's related to the long-standing English principle of the right to self-defense and the English Bill of Rights of 1689. The English always thought you had the right to defend yourself with deadly force and a long standing tradition of a natural right to bear arms. https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms
It's a totalitarian government where the dictator and the sole citizen of the state are the same person, and the citizen works for the dictator (well, there's no choice). Government is simply the application of force to create rights. No more, no less.
But also, if you come onto my property, you don't have to cede authority to me, I'm still the government and I will make decisions about what happens to you, so you are bound to my laws whether you like it or not.
You need a society for a government to make any sense. One person defending their property is neither a society nor a government.
Until you have the minimum viable population for our species (i.e. the smallest group of humans that can avoid extinction) you cannot really have a society.
Of course, that number depends on things like the environment (a favorable environment will mean a smaller number) and the genetics of the "first" generation. I seriously doubt that the number could be as small as two for any species even under the most ideal circumstances.
The inability to enforce rights in nature is independent of the existence of those rights. You might need a shotgun to defend your life in a "libertarian utopia", but that doesn't mean you don't have a right to it.
In fact, your hypothetical correctly assumes that people need to protect their stuff. This need is evidence of self interest. The fact that there are universal norms that allow the use of force to protect things is evidence of a right to property.
In other words, a victim of theft is rightfully angry. This lets us conclude that he has a right to be free of theft. This indicates a right to property.
There's a difference between legal rights and natural / human rights. The latter are ideals, the former are what are brought into existence by the application of force.
Intellectual property corresponds (somewhat poorly) to the natural right of being allowed to profit from your ideas.
There is no natural right to profit from your ideas. Your ability to even try to profit from your ideas is substantially dependent on external factors in your life -- your position in society, your ancestry, the availability of capital and your ability to acquire it, etc.
Do not confuse the right to think with the right to profit from your ideas. You do have a natural right to think about whatever you want, as well as a natural right to communicate your thoughts to others.
I believe that creative expression should be valued by society, i.e. I believe that people have a natural / human right to rewarded for this kind of work.
But sure, I don't believe in absolute natural rights, much as I don't believe in absolute morals.
Put more simply, I believe that authorship is a natural right, just like ownership. You might ask, why should the idea be mine just because I got to first? And I would answer, why should the tree be yours just because you got to it first?
It is impossible to own an idea. You might be given a monopoly on the application of that idea, but by merely speaking or documenting the idea you distribute it to any that hear or read it and therefore can no longer truly said to own or control it. It's the difference between data, and matter. One is copied infinitely without destruction or consumption (although it can be "lost" in entropy) and can travel at the speed of light. The other is a unique instance subject to the laws governing all matter and capable of being destroyed. In fact it's impossible to truly copy or distribute a physcial object, you can at best create a new arrangement of matter that mirrors some existing matter.
This is why property is a concept solely reserved for physical objects, not to information. They are fundamentally different categories of things. You cannot own an idea any more than you can own a frequency (regulation of the broadcasting of certain frequencies of RF waves should not be confused with "owning" the waves themselves).
It seems to me that when you say that people have a natural right to profit, you actually mean a "right to exclude".
I think that's a whole nuther kettle of fish.
For one, the two are in contradiction. Suppose you believe that you have
the right to exclude, presumably you also believe that all other humans
have the same right, owing to its status as a natural right. By believing
that you can exclude, and therefore profit by way of eliminating competition,
you acknowledge that the competition can exclude you as well.
It boils down to whether or not by "profit", one implies complete domination
of a resource. I tend to think that many parties can profit, without the
necessity to exclude by brute force.
This is also the key difference between patents and copyrights. The former
demands total domination of a resource, while the latter does not.
> And I would answer, why should the tree be yours just because you got to it first?
It's a good point, but there is a difference. It is possible for two parties to arrive at the same intellectual destination without being aware of one another. The same cannot be said for two parties arriving at the same tree, at the same time, but one not being aware of the existence of the other.
I suppose you can construct an argument in which both parties lack all physical sense of awareness. :)
"You might ask, why should the idea be mine just because I got to first? And I would answer, why should the tree be yours just because you got to it first?"
The difference is this: share your tree with me, and there will be only one tree. Share your ideas with me and we can both think about them, utilize them, and benefit from them. This idea is self-evident; just as I am communicating it to anyone who reads this post, it was communicated to me by someone else:
It is true that creative expression should be valued and that people should be encouraged to be creative. I would add that society should set up a system where creative workers can derive an income from their work and that such a system will be vital as more and more things are automated. Property rights are orthogonal to this. I happen to be a creative worker, but there is no need for me or anyone else to "own" the products of my work; my research group's salaries are paid with grant money, because the government wants to encourage the work we do, and we want our work to reach as many eyes as possible.
I disagree with your definitions. Rights, though abstract, are real. This is why atrocities outside the reach of law (murder in international water, war crimes, genocide) are clearly wrong.
Laws are nothing but codified decisions from government. Sometimes they define the specifics of how natural rights are balanced against each other. However, laws sometimes violate rights, such as the now-repealed Jim Crow laws in the American South. Furthermore, the term "legal rights" can also be a misnomer for government-guaranteed privileges such as the "right" to government-provided benefits or (in my opinion) intellectual property "rights".
The difference legal and natural rights corresponds to the difference between laws and morals. That's all I mean. Natural rights are real things in as much as morals are real things.
Let me recap, because discussions become convoluted in forum format.
First ataggart makes the point that elevating patent and copyright privileges to the level of natural rights is wrong and implies (through Orwell) that confusing intellectual property rights and physical property rights leads to foolish thinking.
Then, you make the argument that it doesn't matter because, "Every legal concept is entirely the government's creation, including both physical and intellectual property...."
Then a bunch of people, myself included, disagree with that point by referencing Hobbes and Locke and providing examples of how ownership exists outside of government influence.
Now, I agree that "Natural rights are real things in as much as morals are real things." And since we are not amoral, we can presume that natural rights exist.
Remember, the original point is that labels matter here. Mislabeling things as "rights" causes people to both overvalue grants from their governments and (more importantly) to devalue natural rights as being decreed by government (which means they can be abolished or altered by the same powers).
When your "rights" are derived from government and they are taken away, you're on the losing side. When rights are inalienable and they are violated, you are being persecuted.
All that is to say, "intellectual property rights" is a dumb term.
The difference between legal rights and natural rights is that legal rights are guaranteed by force. As soon as you guarantee a natural right by force it becomes a legal right: you make the law.
You just reiterated your previous statement without addressing my point.
According to you, it is morally OK for government to decide what is a right and what isn't. In that case, is there anything morally wrong with government deciding to nationalize all retirement savings?
It is always legally OK for a government to decide what is right and what isn't. It may or may not be morally OK with an individual member of the society, depending on the particular law. I like some laws, I don't like other laws. I believe a healthy government provides legal guarantees about rights to its citizens in accordance with their morals, on average, and so I am morally OK with such a government.
Governments are a natural extension of parents. Goodness or badness is not an all-or-nothing proposition; nobody has perfect parents, but most people accept that in general, having parents that make and enforce the rules is a good thing. It is quite possible to have terrible parents though, in which case escape might be a good idea.
I just don't understand why anarcho-capitalist libertarianism is so great. The international situation today is a capitalist anarchy among nations, and the US abuses its immense power to call most of the shots. How would it be any different at the level of individuals?
You're free to define "government" in such a way, but that's not a very useful definition in a discussion about what role the "government" should play.
I think we went through this before. What was your definition of government again? A man and a woman alone together in a forest and the man has the shotgun?
Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part.
Not entirely true. I want to point out that we have to consider how lobbying is influencing lawmakers.
Sure, lots of things influence the government. But the point is that none of our legal concepts actually exist until the government decides to make laws and enforce them.
Very roughly - if the innovation to be patented (ie the software) is used to improve the operation of the hardware then it is patentable. So buffering code in a HDD chip is presumably patentable (-ed). However if its a new way to display email - probably not. Not a clear win, and apparently similar to UK case law.
"The computer program exclusion is the subject of two governmental supplementary order papers (SOPs). Government SOP 120 introduces a European-style 'as such' exclusion that is considered to be more consistent with New Zealand's international obligations and precedents. More recent SOP 237 introduces several additional new clauses intended to clarify the meaning of the term 'as such'."
US has banned 'software patents' long time ago. However, you can still patent a software being performed by a processor or computer, which then becomes 'hardware'. NZ has now caught up with US. It is not what you think it is.
Merely being performed by a computer does not make software patentable in NZ under this new law. The inventive step has to involve the hardware to be eligible. They did just make a broad swath of software inventions non-patentable.
I suspect that people will start writing their patent claims like this:
"A method of representing numbers as binary strings in the registers of a CPU, and manipulating those registers such that the output is the representation of the sum of the input numbers."
That is what happened in America when we "banned" math^H^H^H^Hsoftware patents. Software itself is not patentable, but the use of a machine to execute specific software is. So the NZ equivalent of "on a computer" will be "manipulating CPU registers" or some similar nonsense.
Kiwi here. As another commenter mentioned, don't be. Overall, I think things are going downhill. The New Zealand Law Society recently reported to the UN Human Rights Council indicating that we've passed a number of laws recently that are in breach of human rights.
- We've very recently passed an odious bill to legitimise spying on NZ citizens.
- We've recently passed a bill that cannot cannot be challenged in court. (IANAL, don't ask me how this can be the case).
- We've recently passed a bill (copyright infringement) that presumes guilt.
In 2010 many New Zealanders staged a huge protest against mining conservation land (owned by the government, accessible to everyone). The government stood down. Yesterday I discovered permits for mining exploration have been granted on conservation land. Technically, this is land that was not under explicit discussion in 2010, but it unquestionably violates the spirit of the protests.
http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&o...http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objecti...
We're one of the few western democracies that hasn't banned or restricted shark finning. We'd rather have an estimated NZD 6m/yr (IIRC).
We'll have a few million dollars instead of an entire species (Maui's dolphin).
Don't be. This is the same country in which the PM thinks it's ok to literally walk out of a Q&A session with the press regarding a widely disputed bill that's being rushed into law.
Rushed into law is normal now. I must see the statement Passed Under Urgency most weeks. This is what happens when you give a banker the reins (reigns?).
Did you ever do that thing in primary school where you put one finger in each corner of your mouth and say "My Dad's a national banker"? If you didn't, I acknowledge that it's weird, but it was funny when I was eight.
Anyway, back to the point! We can now do the same and say "John Key's a National banker".
Not that I dislike the National Party in general. Just the current National Party.
Good news. NZ is already in the top-5 economically free countries while still maintaining a respectable social safety. And a couple SaaS heavyweights. Plus, no snakes.
The real test of this will be if software companies flood to New Zealand to tinker to their hearts content without fear of litigation...
or if they flee NZ for fear of invalidating any patents they could have brought on their upcoming software.
I'd like to be able to say it will be the former, but I bet corporate lawyers will be pushing for the latter (if only out of a sense of self-preservation).
If the product is created in NZ that uses technology patented in US for example, would it still be legal for them to do business in US, like offering services?
That depends on who is suing you, and where they file.
I remember a decision from a few years ago that said something to the effect that any activity that involved transmission of data through the US could be interpreted as having happened in the US, even if the computers, their owners, and operators all resided outside the US.
They say they've adopted UK case law, which they claim is more restrictive than the overall European practice, but even under UK rules, hundreds of thousands of European software patents are valid. HTC challenged four Apple software patents and claimed in each case that the invention was not patentable because it was a computer program "as such" (today's New Zealand bill also excludes only patents on programs "as such"), and succeeded on only one of them, and even that one was overturned on appeal.
For further detail see the link in my first post to this thread in which I warn people against believing what they hope to be the case just because it makes them feel good, no matter how wrong it may be.
As more and more people write code and become technically literate, I think we'll see lots of this sort of thing. Once the majority of normal people "get it" then it's all down hill for those trying to control ideas.
If an idea is truly novel and valuable to the marketplace no patent is needed because the novelty itself provides ample time for you to 'recover' your investment.
Either no patents or very short patents[<=12 months for anything] is a basic requirement for a progressive society.
Are there any good articles about how people in countries which allow software patents can benefit from this New Zealand body of law, such as incorporating as a New Zealand company and avoiding US jurisdiction for patent lawsuits?
Here is a question for the lawyers out there (which I am not): would it be possible to conceive a legal framework somewhat similar in spirit to the GPL, but with the goal of making any patent relying on it free of charge, ie. such that a patent delivered under those terms would be free of use, but also impose the same terms to any patent building up on its content?
I'm glad this happened. For things like copyright, I thought there were international conventions - countries that were lax were hounded by others diplomatically. Is this not the case for patents?
You're right on. There's a WTO treaty on the Trade-related Aspects of Intellectual Property Rights (TRIPS), and it requires patents to be available in all fields of technology. See TRIPS Art. 27: http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm
That's probably part of the reason why New Zealand did't actually ban software patents today. For more information on why today's bill is not tantamount to the abolition of software patents, see my other comments on this thread.
NZ is not the first country to disallow software patents (also patents on game rules and business methods in some countries). I'm guessing something is stopping Americans from exploiting that. We are talking about the country that taxes its citizens for what they earn while they live in another countries. Only sure way out of this stupidity is to ditch the US citizenship.
Wondering the same thing. What would it take to set up an equivalent of an LLC there to hold the IP of a saas business? And would Americans be able to do a tax pass-through (no or limited NZ tax liability and no change in US tax situation).
Keeping the software company in a NZ trust and using that to own a US LLC (for US operations) might be a good way to minimize IP liability.
As Caesar used to say, "fere libenter homines id quod volunt credunt" (people are ready to believe what they want to be the case).
The fact of the matter is that New Zealand has passed a law with some restrictive language, but this is far from abolition. Broad swaths of software patents can still be granted.
Here's my more detailed take on it: http://www.fosspatents.com/2013/08/new-zealand-parliament-ad...
And this is what a publication read by patent lawyers says: http://www.iam-magazine.com/blog/Detail.aspx?g=96d4aeaf-dedf...