
White House: What's Blocking Innovation in America?  My Answer: IP Laws - wiks
http://www.groklaw.net/article.php?story=2011021108493059
======
grellas
IP laws are flawed today in their implementation but it is a serious mistake
to say that they are what is blocking innovation in America.

It is easy to pick some extremes of flawed implementation of IP laws and to
ridicule their effects. Software patents have been seriously abused to block
innovation, with the prototypical troll being, in effect, the equivalent of
some lawyer sitting in a back room endlessly "conceiving" ideas from which
extortion-style demands can be exacted. So too with things like the RIAA-led
lawsuits demanding millions in damages for the downloading of 20 songs or the
Disney-inspired extensions of copyright terms to ridiculous lengths having
nothing to do with protection of any conceivable right of an author. Such
items can readily and rightly be mocked and cast as the absurd anti-innovative
creatures that they are. Nor does it help that the beneficiaries of such legal
aberrations are often large and powerful companies, lawyers and lobbyists, and
others who might be characterized as the antithesis of innovation in any
productive society.

That said, IP laws do not in any sense categorically block innovation and,
indeed, remain essential to it.

To understand the true importance of IP laws, we need to look at fundamentals.
Property is both tangible and intangible. You can touch the former and
physically transfer it to someone else. It is a thing that is possessed by
someone and such possession excludes or limits possession by others because it
is a finite resource that can only be shared so much. In the modern age, in
contrast, intangible property is capable of almost infinite replication with
few, if any, incremental costs. The temptation exists, then, to say that all
such property should be commonly shared because it can be so shared and
because people will use it to make advancements for the betterment of
themselves and society. In other words, there presumably is no cost to making
all information free, legally unprotected, and infinitely shareable. Or so the
thinking goes.

But this assumption is not sound.

IP laws are designed to protect all forms of intangible property having
commercial value. This means patents (which protect inventions), copyrights
(which protect any tangible embodiment of an original work of authorship),
trademarks (which protect the distinctiveness of the origin of goods or
services), and trade secrets (which protect any form of valuable confidential
and proprietary information).

These laws are so built into the fabric of the startup world that we normally
just take them for granted.

For example, no startup could hope to survive without laws protecting trade
secrets. Without such laws, whatever information or knowledge base you have in
your startup that is unique and valuable could be lifted at will by any
passing person: an employee who passes through and copies such information
wholesale to give it to a competitor; the janitor who comes in at night who
decides to publish it on the internet; someone who breaks into your network,
copies it all, and then shares it with the world or, worse, if it is a
competitor, who uses it to compete against you. If you once take the legal
position that all information is free and freely shareable, then all
protections for your confidential business plans, for your technical
innovations, for your execution strategy, for your database of key customers,
personnel, marketing data, etc. evaporate and you can no longer derive any
competitive advantage from any of this as long as anyone gets his hands on it
and makes it public.

Founder groups would have the same problem in pre-formation situations. Say,
four founders build something that they have worked on for a full year and are
prepared to launch. One of them defects and says to the group, "I am going to
take everything that we have worked on and take it for myself." Of course,
that is outrageous. Buy why? Because laws exist that declare it illegal for
someone to misappropriate what the founders have been working on. Those are IP
laws. They protect the interests in intangible property. Without them, every
founder would be vulnerable to such defections, without any form of legal
recourse.

Copyright serves a similar function. Whenever a startup relies on proprietary
code, it is copyright (along with trade secret laws) that ensures that the
work product of the company can't simply be lifted at will and used in any way
that the person taking the code desires.

Open source is no exception. It relies heavily on rules of copyright law and
on licensing to make its system work. If everything were freely shareable
without any form of restriction, one does not have open source - one has
freeware.

I could go on with this but, having already noted the potential for serious
abuse when such laws are ill-formed, I think I have said enough to show that
IP laws lie at the foundation of the startup world and are not in themselves
the enemy. There are philosophical arguments to be made that all information
should be freely shareable but any society based on that premise would be
radically different from the one in which startups thrive today.

Startups depend heavily on IP laws. Such laws have great value in today's
startup culture and ought to be recognized for that contribution. Reform them,
absolutely; abolish them, don't even think about it (unless you are ready to
embrace a philosophically extreme position about all forms of intangible
property ownership). I don't believe most people are prepared to embrace the
extreme position and, hence, one ought to be careful about castigating that
which is good while condemning that which we can agree is bad.

Bottom line: IP laws do not kill innovation and, on the contrary, are vital to
it. _Flawed_ IP laws stink and need to be reformed.

~~~
baddox
> _For example, no startup could hope to survive without laws protecting trade
> secrets._

Existing theft and trespassing laws already outlaw unauthorized physical
access to your property. As for disgruntled or opportunistic employees, you
can utilize existing contract law to ensure their doing so is illegal. What
exactly do trade secret laws cover that aren't covered by more reasonable and
fundamental laws?

> _Open source is no exception. It relies heavily on rules of copyright law
> and on licensing to make its system work. If everything were freely
> shareable without any form of restriction, one does not have open source -
> one has freeware._

That's why I have strong feelings that the free software movement, or at least
the GPL, is insanely contradictory. Their claim is that there shouldn't be
liberty restrictions placed on software, but what they really mean is there
should be _different_ liberty restrictions placed on software, specifically
the ones they happen to like more. In my opinion, software isn't really free
unless it's in the public domain (or, nearly equivalently, if there were no
longer any intellectual property protection for software).

Most of your points are simply that removing the various forms of intellectual
property protection would harm _some_ people. The validity of your specific
examples are variously debatable, but even if you're right, I don't think
that's a good enough argument for keeping the laws around. I can't conceive of
any legal modification that wouldn't harm _someone_. In my opinion, even if
something might harm startups (and I'm certainly not convinced that IP laws
are vital to startups), that's not a sufficient argument.

~~~
tptacek
If I break into your office, steal your secret source code, and give a copy to
my brother, what part of "existing theft and trespassing laws" prevent him
from selling that copy to the highest bidder?

------
MoreMoschops
It's crippling innovation before people even begin. I was chatting about
encryption with some young chap, and I suggested a good way for him to learn
about the practicalities of it would be to just sit down and code. He was
astonished; he genuinely thought that the principles behind common encryption
tools were in some way exclusive property of various companies and that he was
legally forbidden from coding up his own implementation.

This is a true story and it's a belief that is on the streets right now; some
people believe even mathematics is legally owned by someone and they can't use
it. If people won't experiment, they can't innovate.

Note that the countries that don't give a damn about so-called IP happily copy
everything they can get their hands on. It will not take them long to start
innovating on top of what already exists.

~~~
Vivtek
I'd be willing to bet that this attitude in young people is greatly influenced
by the constant hammering of media produced for young people on the point that
IP violation is a crime that will get you put in prison.

Disney makes a _lot_ of the entertainment for young people in America. They
harp a _lot_ on piracy being a crime that gets you arrested immediately,
regardless of the truth - I don't watch a lot of Disney, but I can think of
two instances right off the top of my head, one being an episode of iCarly,
and the other being Minute Men, a made-for-TV movie my kids and I watched last
night on Netflix.

~~~
marshray
Yeah it's pretty sick, isn't it?

Still they're not convincing anyone and are just making themselves look sleazy
in the process. They ought to remember that in just a few years these kids are
going to be: A. downloading stuff, B. very cynical about authority, and C.
spending lots of money.

Nick and Disney are increasingly uncool in our house. Youtube and anime are
taking up all the screen time these days.

~~~
Vivtek
_they're not convincing anyone and are just making themselves look sleazy_

I beg to differ. It's astoundingly effective propaganda, because it's
unexpected.

Down in Puerto Rico, there's an incredibly ham-handed, telenovela-like RIAA
anti-piracy ad played before every movie in the theater (or was, for a couple
of years). People laugh out loud at it, it's so bad, and since it's clear that
the RIAA isn't Puerto Rican anyway, everybody feels free to ignore it.

But when you have police coming to pick somebody up for filesharing (!) on
iCarly as part of a plot point, you slip that propaganda right past people's
internal censors. I had to explain to the kids that this part of the plot was
a blatant lie, and my wife still doesn't buy it.

It doesn't matter how sleazy Disney looks to you and me - the question is how
pervasive that belief becomes in the populace at large. It's money well spent
by Disney for their own bottom line, but I hadn't thought of the larger
consequences for society, and that's pretty frightening.

------
patrickaljord
"Let's take Android. It's something new and the world is loving it. So what
happened once it became a hit? Patent and copyright infringement lawsuits up
the kazoo. Is that going to encourage innovation? And it's not just Android.
It's any successful technical product. They all have to spend millions in
litigation. And it's a drain on the economy too, because when the plaintiffs
win, that money isn't a win for innovation, not when the law allows patents to
be owned and litigated by entities that make nothing at all but litigation.

See what I mean? When the law overprotects, it kills innovation. That's what
protection means. It means protection from innovation. Let's call a spade a
spade."

Amen.

~~~
billmcneale
First, you'd have to show that innovation is being blocked in America,
considering that most software innovations come from there.

While in need of some tuning, IP laws seem to be working as advertised: you
can't release a product that copies 90% of another product, you actually have
to innovate.

Look at Android: they had to navigate around dozens of Apple patents and they
still did fine and they have come up with an impressive set of innovations.

When plagiarizing is outlawed, you have no choice but innovate.

~~~
jerf
"First, you'd have to show that innovation is being blocked in America,
considering that most software innovations come from there."

I disagree. The relevant question is whether the benefit to society is greater
or lesser than it could be from other laws. If someone is sued for a few
million dollars from a patent troll who does nothing else for society with
that patent, net loss. When something is brought to market that wouldn't have
been without protection, net gain.

Patent laws at least in the software arena are very plausibly a net loss. The
best thing about this metric is that you don't have to sit there and argue
about whether "software innovation" is being blocked, which is something that
will just involve people defining "blocked" in whatever way it takes to win
their point. (Boring!) It's about net loss or gain.

~~~
billmcneale
> I disagree. The relevant question is whether the benefit to society is
> greater or lesser than it could be from other laws. If someone is sued for a
> few million dollars from a patent troll who does nothing else for society
> with that patent, net loss. When something is brought to market that
> wouldn't have been without protection, net gain. Patent laws at least in the
> software arena are very plausibly a net loss

How do you come to this conclusion?

As I showed, there is plenty of software innovation happening in the US every
day. Occasionally, the process goes awry and we see futile lawsuits, but the
"net positive", as you put it, is undoubtedly positive if America's leadership
in software innovation is any indication.

Speaking of frivolous patent lawsuits, we do hear about some now and then, but
when was last time that something truly outrageous was awarded to a patent
troll? Outrageous patents get filed on a daily basis but they hardly ever
survive in court, or they are resolved outside the courts in a settlement,
usually indicating that both parties have "dirt" on each other and chose to
settle instead of engaging in something that will end up as mutually assured
destruction.

By all criteria, the system is working pretty well.

Having said that, I think the duration of software patents should be reduced.

~~~
jerf
"How do you come to this conclusion?"

How do you come to the opposite? It's not like there's an enormous repository
of objective data we can just go run to and crunch numbers on with pre-agreed
algorithms.

However, I would say that you're committing a logical error; we have a certain
set of patent laws, we have software leadership, and you seem to conclude
therefore there is a causative relationship. That's not logically sound.

What I see out there in the world is that very few people are creating
software because they are incentivized by a patent system to do so. It's
almost absurd to think that someone would be incentivized by a system
guaranteed to get back to them a year after their application or so. Nor is
the patent system successfully putting knowledge into the public domain; in
order to fulfill the contract a patent is supposed to be offering one should
be able to reconstruct the patent from the description, generally either
trivial or impossible. They create software for other reasons. On the other
hand, there's a lot of litigation out there for no real gain.

It's not hard to conclude the value of patents are negative in the software
domain when almost all the entries on the ledger are negative, and the
negative ones are also larger than the positive ones.

I'd also observe that I did _not_ say the metric is benefit to the patenter,
which I think you may have missed. I said benefit to _society_. This idea is
written into the very Constitutional authorization for Congress to create laws
regarding patents and copyright in the first place. So the idea that the
relevant metric is benefit to society isn't obscure or something I made up,
it's directly from the authorization granted to the government in the first
place, I couldn't be any more mainstream.

~~~
billmcneale
"However, I would say that you're committing a logical error; we have a
certain set of patent laws, we have software leadership, and you seem to
conclude therefore there is a causative relationship. That's not logically
sound."

No, I didn't go that far, but I certainly used this fact to place the burden
of proof on people who claim that the "current software patent laws are
broken".

"What I see out there in the world is that very few people are creating
software because they are incentivized by a patent system to do so"

I see the exact opposite: what is the point in coming up with an innovative
concept if anyone can steal it the day after you make it public and reuse it
without any consequences?

I have a strong suspicion that we would be seeing a lot less start ups if such
laws were not in effect.

"It's not hard to conclude the value of patents are negative"

It's obviously not hard, but it's also incorrect :-)

------
zipdog
One of the foundations of America's success in the earlier years (up to the
beginning of the 20th C) was its general disregard for IP laws. British
manufactures were constantly complaining about American's using their designs,
manuscripts, etc without payment, as well as state to state infringement
(Hollywood started in CA to get away for legal oversight).

The article is spot on: legal protection is protection from innovation.

~~~
billmcneale
> One of the foundations of America's success in the earlier years (up to the
> beginning of the 20th C) was its general disregard for IP laws.

Uh, you should really read up on America's early economic development. Its
success has very little to do with IP laws.

And to counter your claim: look at China, which has no IP laws. How much
software innovation do you see coming from there?

Yup, zero.

~~~
jellicle
> How much software innovation do you see coming from there? > > Yup, zero.

<http://en.wikipedia.org/wiki/Software_industry_in_China>

"China's software industry grew at a compound annual growth rate of more than
39% over the period from 2001 to 2007 to reach RMB 506 billion and is further
anticipated to grow at a CAGR of nearly 22% through 2012."

~~~
billmcneale
I was talking about innovation, you are talking about growth.

Where are the Google, Facebook, Twitter, Apple, Foursquare, LinkedIn? Look at
all the startups and new ideas described in Techcrunch every day, how many of
them came from China?

~~~
thristian
Why would a startup in China focus on the American market? A Chinese startup
has a vastly larger local market to address, one that doesn't require
localisation support or careful negotiation of cultural differences. Until
they've saturated the local market, marketing in America would be a waste of
time and effort.

------
bugsy
The answer is not quite correct. Corporate protectionism is what destroys
innovation. Abuse of the patent and copyright systems is part of corporate
protectionism.

Patent and copyright are great things to protect the little innovator guy that
starts a new business from being sodomized by the big corporations that lobby
congress for laws that benefit only themselves.

Reform is necessary. Right now, companies are patenting things that were
invented by other people. Right now, little people with patents are getting
their IP stolen from big corporations with lawyers who file legal action
solely for the purpose of bankrupting the little guy and taking his property.

These things are not a problem with the concept of protecting innovations
through IP law. They are a problem with corporate abuse of the system and a
corrupt government.

~~~
marshray
_Patent and copyright are great things to protect the little innovator guy
that starts a new business_

I think you read that in a book somewhere. I bet you don't personally know a
single "little innovator guy" who has successfully been protected by a patent.

~~~
rick888
"I bet you don't personally know a single "little innovator guy" who has
successfully been protected by a patent."

I know plenty. My last boss being one of them. His product was copied by a
competitor (the entire design) and sold under a different name.

It got so bad that people were calling up think we were this company and it
hurt sales overall. He sued them in court, won, and actually got the entire
company as a settlement (in addition to around $500,000.

His product was simple enough to copy and without legal protections, a much
larger company would could easily steal his entire market share.

~~~
marshray
You appear to be someone else. It does happen from time to time.

Out of curiosity, what industry/market was this? How big was the company? Have
any idea how much the lawsuit cost?

------
Kilimanjaro
Somebody invented the knife you use to eat, the pants you're wearing, the
mattress you sleep on, and you are not paying a dime in royalties. You are
standing on the shoulders of giants and you pretend those who come after you
to pay you for your invention, even if many unlucky people invented the same
thing but were just seconds late to the patent office? I have a word for you,
damn parasite, fuck you.

~~~
marshray
_seconds late to the patent office_

More often than not, the other independent inventors didn't feel the idea was
worth patenting, didn't have the money to spend building a meaningful patent
portfolio, or didn't want to feel like human scum.

------
fleitz
Lawyers and Bureaucrats. Pretty much every single branch of gov't save for the
DOD and DOJ stifle innovation (DOJ in the grand scheme of things stifles
innovation by enforcing the laws for other branches). Start by letting parents
send their children to a school of their choice. Continue by making it easy
for those children (when they reach adulthood) to start businesses, and
continue by making the burdens of running that business as few as possible. It
might be a little burdensome to file a tax return for the company you buy a
computer from. (Medicare tax code changes)

Continue by allowing the free flow of information and creating transparent
gov't so that the private sector may also innovate gov't.

If Obama went back to his election night speech and started governing like
that I'm sure he'd find the answers quite quickly. However, a rhetorician as
skilled as President Obama knows that the point is not to find the answers but
to be seen asking the question.

~~~
danenania
The DOD also stifles innovation through the taxes and inflation required to
keep it going, and by encouraging crony capitalism and corruption through
awarding contracts to politically connected companies. Also by propping up
dictators and bombing/kidnapping/torturing people and generally interfering
with the democratic rule of law. Definitely wouldn't leave them out.

------
tptacek
Yes, this is true, if you want the President of the United States to advocate
for a Total War in the legislature --- one, by the way, which he will lose ---
solely for the sake of clearing the way for entertainment content startups.

~~~
marshray
I think current IP laws are killing innovation and it has nothing to do with
"entertainment content".

It used to be that I could sit down at a computer and innovate-up a useful
program and no one could say I couldn't. Maybe even try to make a business out
of it. Now it's all-but impossible to do that without incurring this large and
unknown risk of litigation from holders of patents of wildly varying degrees
of novelty.

The system is broken. It needs to be thrown out.

I doubt Obama is the one to do it, he seems to have his head in the status quo
as much as any lawyer.

~~~
jeromec
_It used to be that I could sit down at a computer and innovate-up a useful
program and no one could say I couldn't. Maybe even try to make a business out
of it._

Well hold on now. Don't be too quick to lump things in together. You can still
sit down at a computer, innovate a program and make money from it. I do agree
that serious help is needed in reforming software patents (as evidenced by
Amazon's famous 1-click checkout patent), but IP law is what ensures someone
can't hack into your files, steal your proprietary "innovative" programming
and re-sell copies of it as their own to the customers you were planning to.

Incidentally, that's why I side with the Sony and the law as referenced in
this article. You get to say how your own code is or isn't used. If Sony wants
the PS3 opensourced they can go that route, but it's not up to anyone else to
take it upon themselves to make that decision for them. If programmers don't
like Sony's verdict they can build their own player games. That's how a
capitalist free market works.

~~~
msg
That is what copyright is for, not patenting. If someone doesn't have a
license to distribute your code, you can collect damages for copyright
infringement.

But patenting covers independent inventions of the same algorithms. And it's
frequently used for ideas that are profoundly obvious, like a straightforward
application of machine learning techniques to a particular data set (Bilski).
So if you think of an idea by yourself, you can be sued for implementing it.

As a developer, it is recommended that I not read patents, as if it is
determined that I read a patent that I then violated, it will be triple
damages in a lawsuit. So I have no way to avoid implementing somebody else's
patent.

Now Sony's lawsuit isn't about software, or patents. It is about certain
special secret integers. It so happens that used with readily available
software they blow a wide hole in Sony's horrible security system for the PS3.

But Sony doesn't own those integers. It doesn't own the hardware it sold to
people under pretenses that it would always run Linux, and it doesn't have the
right to control how people would choose to use their hardware and GPU. Hotz
never used PSN software or any of Sony's other products.

~~~
jeromec
_Now Sony's lawsuit isn't about software, or patents. It is about certain
special secret integers. It so happens that used with readily available
software they blow a wide hole in Sony's horrible security system for the
PS3._

I'm not familiar with the particulars of that case, so it's hard for me to
make an informed opinion. However, I don't entirely buy a "secret integers"
defense, because that could apply to any software, or any media for that
matter. For example, any Microsoft operating system can be viewed as one long
string of binary code. So, yes, Microsoft would have legally protected rights
to that specific combination of numbers. To suggest "secret integers" can't be
owned would be to say everyone owns anything anyone creates, even before it's
created.

Now, if this person simply devised some code which could crack another system
which did NOT involve that system's original code I would agree there should
be no prosecution.

~~~
marshray
These are not secret integers. In particular they are 46 DC EA D3 17 FE 45 D8
09 23 EB 97 E4 95 64 10 D4 CD B2 C2 as tweeted by the spokesperson of Sony
himself: <http://twitpic.com/3xwe6h>

~~~
jeromec
How was that code derived? Does it get its form from copyrighted code Sony
owns the rights to? If so I believe it should enjoy copyright protection.

We're seeing a nearly chaotic upheaval in how business is done in modern
times, largely because technology is progressing so fast. This can confuse
many of the issues at hand. However, I think it can help to view things using
older more well understood models. For example, let's look at books. Harry
Potter is a copyright protected work which appears to have given much value to
both readers and author/rights holders alike. Each page of that book enjoys
copyright protection; tearing out a page and adding words, making other
adjustments etc., then posting the revised product online would violate
copyright. If we can see the logic to that then I think it can help us to gain
perspective when reflecting on the Sony incident.

~~~
msg
Sony's private key is, essentially, a random number.

As for copyright protection, you should reflect on this page:

<http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html>

And then this one:

<http://www.cs.cmu.edu/~dst/GeoHot/>

To the point with Harry Potter: you can think of a continuum of infringement.
If you tear a page out and copy it, you will violate the copyright. If you
reuse characters or scenes and use them to create your own work, you are
making derived works (JK put her stamp of approval on non-commercial fan
fiction by the way). But the farther you get away from the original characters
the less you can call it infringement. As the link between the two works
becomes more and more abstract and less concrete, the new work is more
protected. At some nebulous point it is no longer infringing.

For instance, Harry's story and appearance is superficially similar to an
earlier work called The Books of Magic, a comic series by Neil Gaiman. You can
read his take on it here:

[http://journal.neilgaiman.com/2008/04/fair-use-and-other-
thi...](http://journal.neilgaiman.com/2008/04/fair-use-and-other-things.html)

<http://en.wikipedia.org/wiki/The_Books_of_Magic>

Essentially he throws up his hands and says "borrowing is a fact of life in
genre fiction. Deal with it, I did."

How does this apply to computer code? Well, the farther away you get from the
original copyrighted code, the less infringing it is. There are extremely
limited protections for derived works that amount to Person B having a copy of
Person A's code in front of them and editing it.

What those Touretzky pages from CMU show is that there is no such thing as a
continuum from computer code to an uncopyrightable abstraction. It is
abstraction, mathematics, numbers all the way down. In fact, it is speech that
is protected by the First Amendment and suppressing it is a constitutional
issue with narrow exceptions.

So no, you can't use a book model for code. It is not the same thing at all.
Executable ideas, math, algorithms, just don't exist in the fiction publishing
industry.

~~~
marshray
_Sony's private key is, essentially, a random number._

Apparently not random enough!

They essentially used this algorithm for their key material:
<http://xkcd.com/221/>

------
DanielBMarkham
I kind of groaned when I saw this title on HN.

Problem? The title told me it was going to be a highly-emotional appeal to an
audience already primed to agree with it. And the vote score only confirmed
that assumption. Time to put on the old critical thinking hat.

What a great article! It was a wonderfully-put-together rant about what is
wrong with IP law. I agree with every point -- including the outrage the
author felt.

The only thing I didn't agree with? The premise -- that IP laws are blocking
innovation.

Yes, as the examples show, there is a great amount of innovation that is being
stifled by IP laws, and something is desperately needed to fix it. But let's
not get caught up in all that emotional outrage at how screwed up things are.
Instead, ask a simple question: to what degree is _all_ innovation stifled by
IP laws? Because that's the claim: that every kind of innovation is being
stifled by the current crappy state of IP laws.

Clearly that's not the case at all. The newspaper boy who invents a new
newspaper folder isn't being stifled. The restaurant owner who comes up with a
way to wait more tables with less staff isn't being stifled. The media creator
who packages his product in a way to increase stickiness isn't being stifled.
It's just a bunch of examples that members of this audience already know and
are sympathetic with.

I could go on. And on and on. So yes, in this one area in which we are all
pretty damn angry to begin with, IP laws are totally destroying innovation.
But in the other thousand or so areas from which most of us have little
experience, they are not.

I loved the rant. And I love a great title and this article had one. A little
hyperbole is good for the soul. So while I have no faults with the article,
I'd just recommend a little bit of common sense when dealing with a premise so
over the top. People have a tendency to take whatever they're really angry
about -- and then apply it to whatever problems the world is facing. IP law is
not stifling _all_ innovation. It isn't even coming close. But it's definitely
horribly broken and needs to be fixed.

------
pgroves
Does anyone know which places with relatively developed economies have the
weakest IP laws? I would guess Hong Kong, Singapore, or China but I don't
really know.

I've been working on a rather ambitious piece of software and I'm definitely
worried that I'll get sued into oblivion over some minor user interface
feature before I ever really make any money off it. I've lived all my life in
the U.S. but would entertain the idea of leaving.

In fact if I'm going to leave my home town I feel like I might as well go
someplace more exotic than Silicon Valley or New York. IP laws and other
business concerns would definitely be an important criteria if I got serious
about it.

~~~
marshray
Oh don't leave. For one thing, you won't be able to sell in to the US
regardless of where you live. Patents allow them to block imports as well as
sue your customers directly. Secondly, you're not likely to find a
particularly level playing field if you, as a Westerner, are trying to compete
in Asia.

~~~
daniel_reetz
Great points, but I'd like to hear a second opinion. Anyone tried this? Some
of the most innovative stuff is happening in some of the most lawless places
almost by definition. I've had the inclination to try some of my personal
projects outside the country on several occasions.

------
neutronicus
Potentially interesting read:

[http://levine.sscnet.ucla.edu/general/intellectual/againstne...](http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm)

~~~
steveklabnik
+1. This book is written by dudes at Cambridge, has tons of historical
examples, and is generally just really interesting.

------
ChuckMcM
So I have been known to make the claim that the next great re-flowering of
tech will begin in 2015 and grow solidly through 2020. I base that claim on
the observation that patent silliness really ramped up in 1995 and grew
exponentially to 2000, those patents expire between 2015 and 2020. And while
technology overwhelmed the ability of patent examiners to credibly evaluate
its novelty or newness, that doesn't matter once the patent is now public
domain.

~~~
marshray
You're saying that American tech innovation will blossom when we finally
become free to use our ideas from 20 years ago? That infringement lawsuits
(and the expense of defending against them) will begin to decrease in 2015?

Keep in mind that China can turn out a new model of cell phone in a few weeks
at this point.

~~~
ChuckMcM
I'm saying that tech got ahead of the patent office in the 90's, and that
combined with a zeal to 'own the road' as a business model had companies
patenting anything and everything. That of course then spawned a huge patent
trolling industry which has had a significant chilling effect on companies.

A very real consequence of this was "datasheets." Prior to the great patent
rush semiconductor companies published datasheets which described their chips
in great detail. This allowed engineers to write software to use the chip and
build systems with them. By the late 90's the "datasheet" for the interesting
chips in a system (sound chips, video processor, GPU, etc) had devolved into a
description of electrical signals, pinouts, thermal data, and just enough
information to verify the chip was functioning. Detailed information about
programming was only available under NDA and sometimes only with a binding
purchase agreement in place.

Being particularly frustrated by this when writing a driver for a video chip,
I used every ounce of influence I had to talk to the guy at the company where
the chip was made who "owned" that decision (which is to say he could have
said, 'let anyone have the data sheet' and it would have happened). His
response was that they didn't release the data sheet because while they didn't
believe they violated anyone's patent in their designs, it was impossible to
prove that they didn't (you can't prove a negative and all that) and so they
took the expedient route of restricting the number of people who "knew" how
their chip did what it did to reduce the attack surface for patent trolls.
This has been, apparently, the standard operating procedure for over a decade
now.

The combination of the 20 year window (which means even if someone patented
something its expired by now) and an improvement in the ability of patent
examiners to deal with "tech" (we've now got examiners who were in high school
in 1995 so they understand at a much better level novelty when it comes to
tech). Means tech companies can engage with individuals with less risk, and
that using techniques "everyone knows" or uses is much less likely to come
bite you back.

No idea how big a damper it will turn out to have been, but I'm watching for
the signs ...

------
mryall
This is a great article full of examples about why IP law has hampered
innovation. But it fails to answer a very important question: what should be
done by the government to remedy it?

The first and simplest part of lobbying is identifying the problem. The much
more challenging part is following up with useful recommendations on what
should be done to fix it.

In terms of software patents, should the executive branch propose a bill to
forbid them? What would the outcome of that be? How should copyright law be
reined in? These are the questions that the next generation of policymakers
need to solve and the recommendations we need to be sending to our respective
governments.

~~~
marshray
_what should be done by the government to remedy it?_

A. Eliminate patents for everything except FDA-regulated drugs.

B. Eliminate the DMCA's anti-circumvention provisions and strengthen
protections for reverse engineering and development of compatible products.

~~~
dctoedt
> _Eliminate patents for everything except FDA-regulated drugs._

I agree the patent system has its problems, but I'm curious: Why that one
exception, but no others? What about, say, medical devices? And then where do
you draw the line -- and why there and not somewhere else? (These are issues
that legislators, lawyers, and judges have to deal with all the time.)

~~~
marshray
I know it's odd and inconsistent, but a concession to reality: it takes years
of investment to develop a new drug and then years of government-imposed
studies to be allowed to actually market it. The second part is necessarily a
public process so competitors would have nearly as much time as the developer
to ramp up their production process. A term like 'ten years after FDA approval
or 15 after FDA submission' sounds about right.

Maybe something more like a short-term copyright on the molecule would make
more sense than patents on general concepts that are usually just imitating
nature.

Medical devices - well maybe, but I wouldn't want to stretch it. I've know
companies that had stuff that comes in a syringe and goes in the human body to
be regulated as a "device" and companies that made products to dispense drugs
not regulated at all. They patented basic stuff like the idea of sorting work
items into plastic baskets in alphabetical order.

------
stretchwithme
Patents are one way people can make deals with innovators that can make some
innovation more likely, but its not the only way this could be done.

I think the coercive element, the idea that someone can be sued for doing
something they have an inherent right to do is the problem.

It is one thing when people agree that they need something and offer to buy it
exclusively from whoever creates the first viable product. It is quite another
to coerce everyone to do so.

That said, we should not hand out monopolies that are not in the interest of
most citizens. And what is in our interest is determined rather badly with
winner-take-all elections and the power they give to lobbyists.

------
beagle3
It's relatively easy to downsize IP laws with a single change: If they are
property, tax them as property.

e.g.

Every year, a patent/copyright/trademark owner has to state the value of their
"property", and pay 1% tax on its value. That entitles them to sue each
defendant for said value (maybe _3 for wilful infringement, but that's it).
You can make it easier by declaring the value of the "property" at any point
in time during the year until 15-apr the_ following* year, so you can evaluate
in retrospect.

Now, all of a sudden, it doesn't make sense to hoard patents or copyrights as
much - If you value each song at $100K, then it costs $1K/year to maintain
that copyright.

I'm sure Intel/Microsoft/Apple would actually evaluate what does and doesn't
need patent protection when they have to pay millions of dollars per year to
maintain it.

Furthermore, it's only reasonable - paying tax for having the state enforce
your "property" rights.

------
adsr
The answer is probably not to get rid of all protection of IP though. I think
a change to the law to prevent obvious patent trolls would be beneficial on
the other hand.

~~~
Tycho
Or maybe a sort of AI enhanced service that automated the 'legal hacking'
involved in navigating the world of patents. Like as well as writing unit
tests for your code, you write 'patent tests' which allow the search tool to
determine if you're code/product is infringing any patents and if so how to
avoid infringement.

