
Judge Posner decries "excessive" copyright and software patent protections - 001sky
http://arstechnica.com/tech-policy/2012/10/judge-decries-excessive-copyright-and-software-patent-protections/
======
timsally
If you're not familiar with Judge Posner, you should be. He's been a judge in
the Court of Appeals (a set of courts right below the Supreme Court) since
1981. In addition to being a judge, he is the most cited legal scholar of the
20th century. He's only the only judge on the 7th circuit to reliably send
clerks to the Supreme Court (indeed, Lawrence Lessig was one of those clerks).
In short, he's an extremely acclaimed and well regarded jurist. And to boot,
his opinions are a pleasure to read (<http://www.projectposner.org/case/>) and
sometimes quite biting (<http://www.ca7.uscourts.gov/tmp/LZ19Y7FG.pdf>).

~~~
archon
That PDF link is a 404.

~~~
macchina
It's Gonzalez-Servin v. Ford Motor Co. wherein Posner chastised the
plaintiffs' attorneys for ignoring certain unfavorable case law. The published
opinion contains images of an ostrich and a lawyer burying their heads in the
sand.

[http://law.justia.com/cases/federal/appellate-
courts/ca7/11-...](http://law.justia.com/cases/federal/appellate-
courts/ca7/11-1665/11-1665-2011-11-23-opinion-2011-11-23.html)

------
justincpollard
Posner's positions, and the frank and open manner with which he expresses
them, are a much needed breath of fresh air from a legal system that is all
too esoteric. Especially with regard to patents.

Though not directly related to the position Posner takes in his most recent
blog post, it's ironic to consider the fact that patents are filed not by the
inventors themselves, but lawyers who represent them. To me, that begs the
question of whether or not "someone of ordinary skill in the art" could
actually replicate the invention disclosed in any given patent. In reality,
depending on the invention, it doesn't seem likely that the inventor could
even replicate her own invention using solely her patent as a guide. This is a
result of patents that are too vague, too general, and too far removed from
the actual technology they purport to disclose.

In his recent writing, Posner has chosen to make the point that companies use
either defunct or trivial technology to halt innovation through patent
litigation. Recently, the culprit has been Apple, but Apple is, of course, not
alone. In the fight against patent bullying, Posner's conclusions are, for the
most part, right on target.

~~~
rayiner
> Posner's positions, and the frank and open manner with which he expresses
> them, are a much needed breath of fresh air from a legal system that is all
> too esoteric. Especially with regard to patents.

To be fair, Posner is also a poster-boy for judicial activism. Much of what
seems "esoteric" in law is actually the attempt to give effect to fine
distinctions made in statutes and in previous cases. If you ride roughshod
over all that and decide cases according to sweeping principles, it's much
easier to be open and succinct.

------
adatta02
The full piece is an interesting read on the Becker-Posner blog as well -
[http://www.becker-posner-blog.com/2012/09/do-patent-and-
copy...](http://www.becker-posner-blog.com/2012/09/do-patent-and-copyright-
law-restrict-competition-and-creativity-excessively-posner.html)

------
macchina
Posner is an appeals court judge, but last summer he heard _Apple v. Motorola_
while he was temporarily sitting as a trial judge. He dismissed the claims of
both companies "with prejudice" which means the case cannot be filed again
elsewhere.

From his opinion (which really opened my eyes to the inanity of patent
litigation):

 _In its latest written and oral submissions Apple attempts what I told its
legal team at a pretrial conference I would not let it do in the liability
trials then envisaged: turn the case into an Apple versus Motorola popularity
contest. Apple wanted me to allow into evidence media reports attesting to
what a terrific product the iPhone is. I said I would not permit this because
the quality of the iPhone (and of related Apple products, primarily the iPad)
and consumers’ regard for it have, so far as the record shows, nothing to do
with the handful of patent claims that I had ruled presented triable issues of
infringement. Apple’s “feel good” theory does not indicate that infringement
of these claims (if they were infringed) reduced Apple’s sales or market
share, or impaired consumer goodwill toward Apple products. Typical is the
statement in Apple’s brief of June 18 that “an Apple survey identified
watching streaming videos from YouTube among the top ten planned activities
for consumers using iPads in the United States.” The ‘263 patent in issue in
this litigation is not a claim to a monopoly of streaming video!_

 _Apple is complaining that Motorola’s phones as a whole ripped off the iPhone
as a whole. But Motorola’s desire to sell products that compete with the
iPhone is a separate harm—and a perfectly legal one—from any harm caused by
patent infringement._

 _I note, amplifying earlier points, the absence of evidence that if Motorola
is infringing the patent claims at issue, it is imposing a significant cost on
Apple. Consider the ‘002, which Apple charges is infringed by Motorola’s
preventing partial obstruction of its smartphones’ notification windows. There
is no evidence, and it seems more than unlikely, that occasional partial
obstruction would appreciably reduce the value of Motorola’s smartphones to
consumers—Apple didn’t even bother to install a notification window on its
devices until last year. Consider next the ‘949, which Apple contends is
infringed by Motorola’s enabling customers who buy a Motorola smartphone with
a Kindle reader pre-installed to turn pages by tapping on the screen rather
than by swiping a finger across it (which actually is more like turning pages
than tapping is). Consider the ‘263, the realtime patent, alleged to be
infringed by Motorola’s adopting a method for avoiding glitches in “real time”
communications (such as movies) that has not been shown to provide a superior
experience to consumers than alternative, noninfringing realtime software or
hardware or otherwise drive consumer demand for the iPhone. And consider the
‘647 (structural linking and detection), which also provides unproved consumer
benefits._

Note the Judge was ruling on an injunction which "requires a plaintiff to
demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies
available at law are inadequate to compensate for that injury; (3) that
considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction." eBay Inc. v. MercExchange, 547 U.S. 388
(2006)

[http://fortunebrainstormtech.files.wordpress.com/2012/06/6-2...](http://fortunebrainstormtech.files.wordpress.com/2012/06/6-22-opinion1.pdf)

------
chrisduesing
I don't know how the appointment of judges works beyond the local level where
I vote. What would it take to get Posner appointed to the Federal Circuit
Court of Appeals? It seems his worldview is much needed there.

~~~
timsally
Posner has been a Judge on the Court of Appeals since 1981, on the 7th
circuit. SCOTUS was never in the cards for him. He's an intellectual giant,
but he's been on record for a long time in favor of the legalization of
marijuana and hard drugs.

~~~
chrisduesing
I was asking specifically about this from the article "And Posner's seat on
the Seventh Circuit Court of Appeals doesn't give him a direct role in shaping
patent policy because (as we discussed yesterday) the Federal Circuit Court of
Appeals has exclusive jurisdiction over patent appeals. Posner was able to
hear the Apple v. Motorola case because he was temporarily sitting in as a
trial judge."

~~~
timsally
Ah I see. I'm not aware of an instance of an appellate judge moving to another
circuit. I suppose technically the President could nominate him. I actually
dislike that the Federal Circuit gets all patent cases. The end result in no
circuit splits and SCOTUS ends up hearing a lot less patent cases than it
should.

------
rayiner
Y'all might find Posner's recent battle of words with Scalia interesting:
[http://www.huffingtonpost.com/eric-segall/scalia-
posner_b_18...](http://www.huffingtonpost.com/eric-segall/scalia-
posner_b_1883750.html)

Two of the sharpest wits in the judiciary those two.

------
btilly
The original blog post is one of a pair of related posts by Gary Becker and
Steve Posner. The other was discussed at
<http://news.ycombinator.com/item?id=4595153>.

------
ianhawes
Can someone elaborate on what he means with this line:

"But the conditions that make patent protection essential in the
pharmaceutical industry are absent."

~~~
btilly
The characteristic of the pharmaceutical industry that is usually cited as
making patents essential is that it costs an average of $150 million to get a
new drug through FDA approval. Without the temporary exclusion that patents
provide, there would be no way to recoup this cost.

I am firmly of the opinion that patents are used for this because no legal
alternative has been provided. But it is easy to imagine a more targeted
property right for this case that would serve the same purpose as patents,
except more efficiently. And my standard example of an inefficiency of the
current situation is that there is good evidence that hookworm is an effective
treatment for Crohn's disease, but since hookworm is not patentable, there is
no prospect that this treatment will ever get evaluated.

------
sabat
I'll be the first to admit that although little good ever comes from Chicago,
this guy has the right idea.

------
hayksaakian
CGI version to make the story more amusing
[http://www.youtube.com/watch?v=Tlg9zMvLFwk&feature=plcp](http://www.youtube.com/watch?v=Tlg9zMvLFwk&feature=plcp)

