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White House: What's Blocking Innovation in America? My Answer: IP Laws (groklaw.net)
259 points by wiks on Feb 12, 2011 | hide | past | web | favorite | 176 comments



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.


For example, no startup could hope to survive without laws protecting trade secrets.

The assumptions here are that your secrets give you an advantage by being secret, that they're easier to steal than to rediscover, and that that advantage is necessary to success. These assumptions are not universally correct, and I suspect that their degree of correctness is rather strongly overestimated.

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.

That doesn't sound like any of the standard copyright/patent/trademark/trade-secret categories, it sounds like it has something to do with (probably implied) contracts.

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.

So then Postgres, SQLite, the BSDs, clang, etc are freeware instead of open source?

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

I don't think that's a sound argument, we've done just fine abolishing other practices that businesses seemed to depend on. What is observed to happen when/where such laws don't exist or are generally ignored?


When the startup lawyer says that the protections for parties in startups from defection and unfair competition are derived from IP laws, I tend to believe him. You seem to retort, "but that's contract law!". But those are contracts protecting intellectual property.

Postgres, sqlite, BSD, and clang are BSD-licensed open source. But many more projects are GPL-licensed, and thus depend entirely on IP law, than those that aren't. Without IP law protections, those GPL projects compete on an unlevel playing field with companies that would otherwise be free to capitalize on all their work without contributing anything back.

Finally, of the list of YC companies here: http://yclist.com/, how many take no advantage of IP laws? How many are entirely BSD-licensed open source? How many have no trade secrets?


IP-based startups (and their lawyers) defending IP laws is similar to big agriculture (and their lobbyists) defending farm subsidies. Yes, they will be affected by the change, but if they don't even bother to try and make an argument as to why society would be worse off under a different system then why would you listen to them?

Though personally once you've used the phrase "Intellectual Property" the game is already over. The various things people lump under that heading are so broad and disparate that you might as well just say "laws need changing" and counter with "we need laws". That's not even getting into the fact that you're implicitly accepting that you're talking about a form of property, rather than government regulation and monopoly grants.


I assume you include every manufacturer of goods that has a patent as "IP-based startups"as well? Patents are IP. Just because you don't like Angry Birds or some other app maker getting rich doesn't mean IP is bad.

Could it use reform? Heck yeah. But your view is no better than the supposed lawyers you hate against.


>That doesn't sound like any of the standard copyright/patent/trademark/trade-secret categories, it sounds like it has something to do with (probably implied) contracts.

If they copy code it's copyright infringement (often even if they wrote it!, depends on the contracts). If they copy model details it can be copyright, design rights and sometimes trademark and even patents. If they copy technical working features that were patented then they would be in violation unless they were the sole rights holder. If they exploit secrets they learnt in the course of working in the company they would be breaching trade-secret laws.

And yes, most likely they'd be breaching contractual agreements in addition. But the GP's description sounds exactly like the sort of thing protected by IP law.

IANA(Patent)L but have worked previously for several years in IP.

>>one does not have open source - one has freeware.

This is actually wrong, one then has PD. Freeware is still protected by copyright law and unless an additional license is given can't normally be commercially exploited, nor could I claim authorship, etc..

>What is observed to happen when/where such laws don't exist or are generally ignored?

It's hard to tell, there are barely a handful of countries that do not have IP law. For example the Paris Convention (patents) has 173 countries signed up, the Berne Convention (copyright) has 164 (Wikipedia figures; out of 190ish countries).

I'm with the GP I find IP law vital but in desperate need of reform.


    These laws are so built into the fabric of the startup
    world that we normally just take them for granted.
You're trying to defend something without considering the opportunity cost of it. I can understand why - you don't know what the opportunity cost is. None of us do. But that doesn't make your defence valid.

If the government gave people privilege for howling at the moon, there would be a startup scene around it. That's not a defence of the policy.

    For example, no startup could hope to survive without
    laws protecting trade secrets
That blanket statements is false. Even if it were true, there are mechanisms that predate conceptions of IP that can be used to defend trade secrets, particularly contract.

    Startups depend heavily on IP laws. 
Only some do. And then there are a raft of startups that can't and don't exist as a result of IP laws.


Here is an absolutely excellent cross section of the startup world, consisting primarily of early-stage companies, a subset of a larger population of companies that vied against each other to gain a position on the list:

http://yclist.com/

Of the companies on this list, make an argument as to the percentage of them that would be viable in a world where copyright on source code wasn't enforceable, where there was no trade secret law and publication of company secrets was thus protected under the First Amendment, and where any element of content on any web page reachable on the Internet could be freely lifted and used by any other company.


    Here is an absolutely excellent cross section of the
    startup world
It's irrelevant. In an absence of IP, the playing field would be totally different, and hence there would be other strategies and other startups.

That's why I brought up opportunity cost in my parent post.

The playing field would be completely different, but not necessarily inferior.

Both you and the original poster are trying to make a defence of IP based on circular logic that avoids considering opportunity cost. That's invalid.


So is your answer, "none of them"?


His answer is:

'If the system changes, then it produces a different set of results'

I could use my godlike powers to create a true democracy, a dictatorship or a theocracy. Different people would raise to the top in each case.

Pointing to the people who have risen to the top for any one of those and saying 'if you changed the system, none of those people would be there' is simply a trivial truism, it is not an argument for not changing the system.


I already understood that he wanted to change the question so that he could answer it more easily. But I asked a pretty specific question, and I'm curious about the answer. There's a lot of companies on this list. I'm going to go out on a limb and say that if most of them didn't rely on IP protections, someone would have called me out on it already.

Conclusion: most YC companies are significantly dependent on IP laws to operate.


You may come to that conclusion if you choose.

Its widely accepted that where an absence of evidence exists, it is logically and scientifically reasonable to come to a conclusion based on an individual's personal bias.


There is a set of things A that can be done under the current system. There is a different set of things B that could be done without any IP laws. Asking how many items in A are also in B is not a valid way to determine whether A or B is larger.

That said, I haven't heard of most of the companies on that list. The ones I have heard of, would all probably do fine (or, as well as under the current system).

where there was no trade secret law and publication of company secrets was thus protected under the First Amendment

The first amendment just means the government can't censor you.


If your implications are correct and your argument sound, then you're saying that tech startups are in a market that only has value due to legislation. Without that legislation, you're saying the tech startup world would have no value and wouldn't thrive or even exist.

I disagree with your claim, but even if it were true, isn't that tantamount to, say, legislation making the sale of automobiles illegal in order to preserve the viability of the horse-drawn wagon market?


Respectfully --- I don't even know who you are, so I can't actually harbor ill will towards you --- but this is batshit. IP law isn't special-purpose legislation. It's among the 17-or-so powers specifically delegated to Congress by Article I, Section 8 of the US Constitution, along with things like "maintaining a navy" and "coining money".


I don't understand what part of my argument you're disputing. I never said that the federal government doesn't have the constitutional authority to legislate intellectual property protection. I also never said or hinted that IP law is "special-purpose legislation."


"IP laws are designed to protect all forms of intangible property having commercial value. "

Wrong.

IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies.

I'm not saying that's good or bad. I'm just pointing out that you're a practicing lawyer lecturing others about "fundamentals" of law that you - fundamentally - don't understand.


Wrong.

What you claim isn't the only view. Here is a paper in the University of Pennsylvania Law Review which argues against this (see pages 2026-2028):

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457848

"it does seem at first blush that it is only a court’s decision to protect a trademark as “property” that makes the trademarked term economically valuable...Trade secrets and patented inventions, however, reveal the initial cracks in Cohen’s critique...The reason is that inventions, regardless of how they are legally protected, would be valuable even if there were no legal system that protected them..."

"Modern patent theory, as informed by law and economics, understands and embraces this fact. The economic analysis of patent law assumes as one of its basic foundational premises that an invention’s value preexists its legal classification as property in the patent system."


The existence of a contrary view is not in and of itself a contradiction to a point.

I've read that section. I don't believe it to be a contradiction of the parent. If anything, it strongly contributes to the point that alexqgb is making.

The quotes you've strung together appear to make a separate point in rebuttal to alexqgb, but it's selective quoting and I don't think it is a good representation of the flow of the article.

You could present the logic you believe to be valid in the post, and then cite where appropriate.

--

travisp: the web system won't let me reply to your next post. I'll try to cover here. I think the distinction is this. When the paper is talking about pre-existing value for something, it describes value to the holder of it for the purpose of their purpose. For example, you write some software, you get to use it in your business for the purpose you generated it for. it has value to you. Whereas when alex is talking about commercial value, he/she is talking about value in the marketplace where you can get paid for something.

OK, next bit. The choice of language changes - one voices it in a way that appears virtuous, preventing those darstardly freeloaders. The other focusses on the mechanism by which this prevented: creating artificial scarcity. It's the same thing. It's easy for advocates of IP to lean on the idea that freeloading is wrong and evil as a foregone conclusion. It's not.

The paper you linked to is complicated and involved, and if you feel it contradicts Alex so strongly as to call him out as you did, it would help for you to make the points yourself and to cite. I realise you were echoing the parent.


@cturner - You've understood my point exactly. Thanks for making it clearer.


I deleted it because I didn't think it was worth expanding on to sufficiently make the point in this place. I don't claim to be an expert in this field, I simply wanted to point out that as I understood it, grellas was not fundamentally misunderstanding the fundamentals of the law, as alexqgb claims. In this sense, the existence of a contrary view (putting aside whether this paper is contrary) would in part be a contradiction to alexqgb's point about grellas. If an article in a respected law review did agree with grellas, alexqgb would certainly be in error to make the claims about grellas that he does. I will accept that I may have made an error in my analysis. Although I'm not convinced I misread the above paper, I don't wish to spend the rest of my night defending this in some likely to not be read comment thread :-). If I was unfair to you, alexqgb, I'm sorry.

To provide a brief defense of what I wrote, the paper I cited heavily relies on Lockean property theory in defence of IP, which goes against the idea of IP laws being designed to give intangible goods with commercial value. Like tangible property laws, intangible property laws are designed to protect that which is rightfully yours as a result of your labor, as I understand it.

For example, "If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by the law as property. If he adopts and publicly uses a trade mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission." (2022, quotation of 1984 court case). The man running the business created the commercial value, which is then protected by the government (and therefore, yes, more valuable).

And, "he need not argue that the right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and he ought to be protected in the enjoyment of it." (2023, quotation from 1824 in the House of Representatives)

"Circuit Justice Grier and District Judge Dickerson found Webster’s argument compelling because they and other jurists agreed with the Lockean principle that the patent laws secure an inventor’s right to “enjoy the fruits of his invention.” " (2024, referring to an 1871 court case). And what are the fruits of his invention if not, at least in part, commercial value?

Interestingly, the author then notes that the use of identifying patent infringers as pirates "who stole from inventors the valuable fruits of their labors" goes back to 19th century courts.

To me, this does not sound like "IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies." But perhaps I'll leave this to the legal experts now.


And of course this must be true at least in part because the inventor of a device or the author of a program can herself benefit from her work without ever publishing it or exposing it to the world. She makes less money, of course, but then, the reason she makes more money today by publishing is that IP law clears a path for her to do so.


Not wrong at all, @travisp. The (excellent) paper you cite refers to economic value. What I referred to was commercial value. These are not synonyms. Often, they're antonyms. In many ways, their opposition represents the crux of the issue.

The Groklaw post summed it up nicely by saying "That's what protection means. It means protection from innovation. Let's call a spade a spade."

The only sense in which IP law directly "protects" intangible goods themselves (as opposed to the economic interests of their rights holders) is when it hinders their obsolescence.


> 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.


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?


> 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.

Of course there are different takes on this issue, but you make it sound as thought the GPL is a conspiracy by Stallman. The FOSS ecosystem encompasses a wide array of types of and takes on "freedom" and there is a place for all the different licenses developers can choose from to open source their code.


>As for disgruntled or opportunistic employees, you can utilize existing contract law to ensure their doing so is illegal.

The current laws include some protections for the individual inventor/creator which would be wiped out by this sort of thing. For example (in Europe at least) fair compensation for an inventor even when their work is covered as "work for hire".


(GPL-style) Open Source only relies on copyright because of how guarantees of reciprocal freedom are currently tacked on top of it (it is a hack).

It should not be too hard to imagine 'implementing' it in a different way.

Such as through a specific law that required giving users access to the source code (and other freedoms, possibly extending to derivative works) if a certain piece of software were marked as Open Source (or for all software, as Stallman would probably prefer it).

(yes this might make Open Source software a less attractive alternative, as it would be competing against free as in a free lunch, but as the market-landscape would be changed in favor of FOSS production models as well, by this, and FOSS has certain benefits even if produced for a fee (ability to hire competing firms for implementing fixes and modifications), there are good reasons to assume FOSS would still flourish)

It keeps surprising me how otherwise intelligent/educated people don't see this option...


Property is both tangible and intangible.

Peititio principii. Many argue that even the phrase "intellectual property" is disingenuous; a term invented by the entrenched stakeholders to gain support for the laws they would like passed by creating a false analogy between physical property and knowledge.


While I'm not sure where the phrase itself came about, John Locke back in the 1600s endorsed copyright in "Liberty of the Press" as the "property" of the authors and proposed an amendment to British Parliament in 1695 to "secure the author's property in his copy, or his to whom he has transferred it." (See "Lockean Property Theory and Intellectual Property" in http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457848)

This implies that the idea of intangible property has existed since at least the 1600s and was supported by one of the most important property theorists of history. I don't think you can dismiss it so easily as a simple "false analogy" or that calling patents and copyrights "property" is some sort of modern rhetorical invention.


The description of ideas as property doesn't need to be a modern concept for one to believe that the concept has led society astray, or that the analogy between tangible property and intangible ideas is more heavily abused now than in the past.


Even if one disagrees with the notion of abolishing all intellectual property laws[1], there is value to Groklaw's argument against them. An extreme point of view can serve to anchor the discussion closer to what one might consider ideal (e.g. a hypothetical "founders' copyright," with 14/28 year terms, or n-year patent terms where n is << today).

[1] I have to admit I am intensely curious what the world would look like if suddenly all IP laws were abolished. I imagine there would be a brief frenzy of copying and exploiting, but eventually a new equilibrium would be achieved and innovation would continue but under some other motivation.


I have not seen any empirical evidence to suggest that IP laws are necessary other than what people said.

Nonetheless, I am experimenting to see if it is true. It's only one sample. So far, I am not suffering any ill effects.


>I have not seen any empirical evidence to suggest that IP laws are necessary other than what people said.

Suppose I take http://libregamewiki.org and copy it completely (logos, attributions and all) and put it up on the .com address. Remove the license and puts some ads on there.

You'd just say "oh well, fairplay"??

Your LibertyGaming blog pages too use CC-BY, that only works because you have control via copyright law, without copyright law I can use your content without any attribution or say by you.


Why don't you do it?


Personally I don't think it's morally right to profit from others hard work. Are you saying that you're licensing me to use any intellectual property you create or hold?


I think you need to qualify your argument somewhat; almost all companies across the globe profit from their employees hard work. If they didn't the company would quickly cease to exist.


Yes, it's a rather poor and limited statement which in the basic reading I wouldn't support - I clearly profit from others work on electricity generation, computer development, ..., etc., etc., etc..

Companies profit from their employees and some even are fair about remunerating their employees.

It is unfair remuneration or profit in which the profit shifts markedly away from content creators which I can't endorse.

In this limited scenario the GP was effectively asking why I didn't rip him off. I didn't want to get into the depths of it, in short it's because I think that it would be immoral of me to take his work and without adding any value take away any possible "profit" from him. Such profit includes the ability to spread his moral ethos with regard to copyright as well recognition as a content creator and enabler for free-libre content and of course financial benefit as well.


No, I don't really care. I am a supporter of copyfree, but I can't make my wiki public domain, not without asking people to relicense their contribution.


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.


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.


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.


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.


"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.


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.


"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.


> 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.


"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.


"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 :-)


The actual awards and even the actual settlements are the tiniest drop in the largest bucket. The true cost comes from defense costs, the preparations for lawsuit, insurance against lawsuits, and the opportunity costs of spending time engineering around worthless "one-clicks" that could have been spent productively.


The innovations are happening despite ip restrictions. It has been historically shown that innovations increase after the ip restriction expire.

http://www.thefreemanonline.org/featured/do-patents-encourag...


Apparently the most sued company for patents is Apple, which seems to back up this thesis.


Personally I think what you quoted is thoroughly self-contradictory.

> Let's take Android

An innovation that occurred in America.

> So what happened once it became a hit? Patent and copyright infringement lawsuits up the kazoo.

Which have not been resolved, and even when they are will not cause Android to cease to exist.

> And it's a drain on the economy too, because when the plaintiffs win, that money isn't a win for innovation

The antecedent does not prove the consequent. "Losses" (smaller profits) for innovation are not inherently a drain on the economy.

> That's what protection means. It means protection from innovation.

It means protection from copying. And I don't see any evidence that the US is failing to innovate technologically.


IP disputes are drain on innovation in the sense of opportunity cost. When Google spends money on lawyers, it can't spend that money on engineers. Also, patent attorneys are smart people who, instead of being employed to create new technology, are employed to argue about existing technology.

>> I don't see any evidence that the US is failing to innovate . . . We're discussing how innovation can happen more efficiently.


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.


Bingo. Cory Doctorow's take on it is informative, even if you don't agree with his conclusions, as he covers a lot of this; it heavily features our old friends, the music publishers (who became a viable business themselves, back in the day, only by taking the music that already existed and selling it on without permission).

Well worth reading, and comes under a creative commons licence.

http://craphound.com/content/download/


There was not necessarily disregard of intellectual property at least when Americans were the owners. Many things like the creation of the commercial sewing machine in the mid 1800s were strongly encouraged by patent and intellectual property protection, despite the fact that patent thickets arose -- i.e. many competing individuals held patents covering individual components necessary to a good sewing machine. How these issues were resolved actually has great relevance for so-called modern issues of "patent trolls," since they existed back then too.

Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354849


Think earlier, around the turn of the 1800s. The power loom and the steam engine were both British technologies protected by patent in Britain, but their patents weren't recognized or enforceable in America. And so we got the American mills at Lowell, Mississippi river and Great Lakes steamers, and the transcontinental railroad.

The steamboat is probably a good example of this effect at work. In Britain, Boulton and Watt's patent allowed them to block development of high-pressure steam engines, because Watt thought they were dangerous. In the US, his patent didn't apply, and so Fitch and Fulton were allowed to experiment freely with increasing the boiler pressure, and eventually managed to produce a design capable of powering boats. That opened up a whole new area of commerce.


>both British technologies protected by patent in Britain, but their patents weren't recognized or enforceable in America.

That's not a disregard for IP law though. That in a way is IP law working. The British company got their limited monopoly to ensure they could pay their workers and continue to innovate and the public domain got the explicit and detailed knowledge on how to exploit that invention.

>In Britain, Boulton and Watt's patent allowed them to block development of high-pressure steam engines, because Watt thought they were dangerous.

This is certainly not a feature of current patent legislation, I suspect it wasn't then either. Patents protect commercial exploitation. They do not prevent rivals from using the invention for research and development, indeed that's half the point. Patents are an exchange of knowledge for a limited monopoly on it's commercial use.

Also, you're free to use a patent specification and work the invention for yourself as a private individual.


Whether or not you're free to do private R&D on a patent-protected technology, most people don't. After all, the reason IP laws exist is that people ostensibly won't do research if there is no financial incentive to do so.

This leads to the somewhat paradoxical result that no innovation would happen if IP laws didn't exist, and yet a large percentage of today's industries were founded or developed by people who pretty much operated with a casual disregard for other people's IP. Perhaps this is why PG looks for "naughtiness" in founders. The modus operandi of most startups seems to be to do what you were going to do anyway, ignore any patents or prior art out there (but don't willfully go out and copy people either, or if you do, restrain it to borrowing general ideas and not whole chunks of code), and then use the inevitable lawsuit as a PR boost.


> 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.


China is actually a very good example, you're just looking at the wrong industry.

Both America and China industrialized by misappropriating trade secrets from the reigning technical powers of the time (Britain and America, respectively) and then bringing that knowledge home where it could be employed by workers who were willing to work for less. The birthplace of the American industrial revolution are the textile mills at Waltham and later Lowell, MA. Francis Cabot Lowell spent 2 years memorizing how British power mills worked, and then came back to America with all that knowledge in his head. He then copied the design of that mill on the banks of the Charles River, and American industry was born.

China's manufacturing similarly depends upon transfer of knowledge from developed to developing nations, though in this case the transfer is largely voluntary, with American firms setting up factories in China. However, people then leave those factories and set up their own firms, using the trade secrets they gained while working at foreign multinationals. Software is the wrong industry to look at - think in terms of textiles or cars.


Their economy is growing much faster than America's though, and there are a few other factors, like, oh I don't know, an authoritarian state and walled off internet that might just be slowing down software innovation independent of the IP situation.


That's a fair statement. I still think that the absence of IP laws in China provides no incentive for new companies to innovate.

Back to my original point: if the US software patent system is so broken, how come America is #1 in software innovation?


It's an interesting question. I suppose the first step is to see if there is another country that has better or nonexistent IP laws without mitigating social and political factors like China's.

It may be difficult because the sheer amount of capital in the US, both physical and cultural, is probably enough to offset the effect of bad IP laws in comparison to most countries. You also need to find a way to measure software innovation per capita to control for population.

It may be that the US is simply the best of a bad lot.


look at China, which has no IP laws. How much software innovation do you see coming from there?

Yup, zero.

The IP laws here mean they wouldn't be able to sell me anything that resulted from their lack of IP laws, and the language barrier means I wouldn't likely see anything they weren't trying to sell me. So why would my not seeing anything have any meaning?


> 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."


"software industry" and "software innovation" are two different concepts.

> It is predicted that in China, Linux market (both server and client) will grow with an annual rate of 34 %. The client-side share growth will be comparatively faster.[citation needed]

I recently walked around a large computer bazaar in China looking for a laptop with Linux pre-installed. I finally found one with a sign saying "Computers for sale with Windows or Linux installed". I walked in asking for one with Linux, pointing to the sign. The seller went "Uhh?!? These are all there are, and they all have Windows. You should know better than to read signs."


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?


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.


Please correct me if I'm misreading you here, but it appears that your "counter" is incorrect. The GP claims that (IP laws implies lack of innovation). You present a single example of (No IP laws & no innovation). However, the GP did not claim that a lack of IP laws is sufficient for innovation, only that it is necessary.


Hollywood itself exists because of piracy. Movie makers went out there to escape the enforcement of Thomas Edison's patents.


Another example is Philips, the Dutch electronics company. Which basically was built on the fact that the Netherlands did not have a patent-system at that time.


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.


Except that software patents don't even function for the little guy, because even if it was only 'little guys' using software patents, it would cost too much to check your code against every other existing patent


Well the system doesn't work at all for the little guy. I was talking patent/copyright in general. As far as software patents, my own opinion is software is obviously copyrightable but not patentable. However, that is not the current viewpoint legally, and this serves the interests of big entities not small ones.

I support IP rights. But the current system is seriously broken. Let's say I invent something totally new and innovative (which I have done many times). And I choose not to patent it. So my competitor reverse engineers my product and then patents it and sues me. What now? I can tell you because this is exact thing has happened to me. I get sued and the court case will take 5 years and require calling costly expert witnesses and the jury won't understand a word of the testimony and will flip a coin in the end. Regardless of what their decision is, I am bankrupt and the big company only spent 0.01% of revenue, and in return they got to buy what IP assets I had in bankruptcy court. Wow, that is messed up.

So let's rewind. Not getting a patent was a big mistake clearly. So let's say I got a patent. Or not just say, since I have done this one too. Now the next company says "we want to license it". I agree to this and they then hire me to create an implementation of the licensed patent which will work with their product. Then, after this is done and working and they have sold it to clients at a huge profit, they fire me and tell me I have to transfer ownership of the patent to them if I want my job back. When I refuse they start creating legal problems for me that costs tens of thousands of dollars to deal with and take me out of the employment pool for a year, and after all that their company goes bankrupt, their IP is sold to a bigger company in bankruptcy court, and then THAT company (Fortune 100) re-patents the things I have already patented and serves me with a cease and desist.

So if I get a patent or don't get a patent, me, the guy inventing awesome new things that benefit humanity, is damned either way because of corporate abuse of the system.

The only answer is to stop innovating or to become a corporate parasite that steals things.

The problem in all this is not with the concept of patents or copyright but that the way it works in practice is to enable the powerful to squash small innovators who are actually doing useful stuff.


> The problem in all this is not with the concept of patents or copyright but that the way it works in practice is to enable the powerful to squash small innovators who are actually doing useful stuff.

If an idea can't work in practice then doesn't that make it a bad idea regardless of how pretty it is?


The natural structure of patent systems make them very hard to that increases net value - i.e. The costs to make it good enough to create value are greater than the incremental value it would give.

Reasons: - In terms of brain power / time: The examiners will never have more ability to expose the sub-optimal applications than the people submitting them - i.e. there can't be a 1-to-1 ratio.

- In terms of funding: The outside will always have a 2-6 order of magnitude level of funding greater that the patent office

- many more...


But patents did, and do, work in practice - in fields where they're appropriate, and for a couple of centuries. You could argue that their term is too long or that they're badly misapplied, but the alternative to a patent system is a system of trade secrets and reverse engineering, which still favor the big companies at the expense of innovation.

The patent system should be adjusted, but not thrown out with the bath water.


> But patents did, and do, work in practice - in fields where they're appropriate, and for a couple of centuries.

Do they really?

Steam engines were pretty much stagnant until James Watt's patents expired.

Nobody in the US could build airplanes until the government made Curtiss and the Wright brothers cooperate with eachother.

Sewing machine manufacturers formed a patent pool that made their monopoly (oligopoly) strong enough that everyone pretty much gave up on innovating until the pool expired.

MPEG-LA seems to be trying to use patents to shut down VP8/WebM.

Electric cars are apparently being held up somewhat by patents on better batteries (so the best option they have is to use lots of laptop batteries).

Monopolies in general make things less available, because the monopoly holder can increase their profits by restricting supply.

.

There is some effect whose name I don't remember, where the more different people need to agree to make something happen, the more each overestimates the value of their own contribution. So if I want to build something and need to buy land from one person, that's fine; if I need to buy land from 10 people each will want more than 1/10 what the single guy would want; if I need to buy land from 100 people each will want more than 1/10 what each of the 10 guys will want; and this very quickly makes it impossible to get anything done if people know what your doing since they'll all want more than 1/N of the generated value.

Applying this to patents, it's very hard to get anything done if multiple entities own patents that they can use to block it. So firstly this discourages innovation right off (since there's no point), but also it leads to the people who do have patents forming a patent pool. Which lets them build things covered by the patents, but means there's even less point for outsiders to try to innovate, which also means the insiders are secure enough in their oligopoly that they don't need to innovate either.

So there should be a cycle, innovation (for maybe a year or two?) => patent thicket => patent pool => wait for patents to expire (or something entirely different to come along) => ...


I think you're referring to the theory espoused in the book "Gridlock Economy". It claims too much ownership can stifle innovation:

"Private ownership usually creates wealth. But too much ownership has the opposite effect—it creates gridlock. Gridlock is a free market paradox. When too many people own pieces of one thing, cooperation breaks down, wealth disappears, and everybody loses."

http://www.gridlockeconomy.com/


Yes, that looks like the same thing, thanks.


Gridlock.


They worked in the centuries before the internet. The internet is not going away. The patent system will have to.


I'm ... really not sure I buy that. I'll have to think about it.


Check out this book by two professors from Cambridge: http://www.amazon.com/Against-Intellectual-Monopoly-Michele-...

They've also made it available online, of course. http://www.dklevine.com/general/intellectual/against.htm


"The Public Domain" by James Boyle is also a good book, looking at copyright, also available for free:

http://www.thepublicdomain.org/


No because a given implementation and/or context is not the only possible implementation and context.

It's like saying we should get rid of laws against murder since if you are OJ Simpson you can hire fancy lawyers and get away with it.


> It's like saying we should get rid of laws against murder since if you are OJ Simpson you can hire fancy lawyers and get away with it.

No, it's like saying we should get rid of laws against murder because those laws are observed to make murder more common. (Well, except that I don't think that observation is actually correct for laws against murder.)


Didn't they have to reduce the penalties for certain crimes because once you're already facing a certain death penalty you've no reason to not kill (more) people if that helps you escape identification/capture/arrest? That is, a law designed to incentivize you to not kill people, had the opposite effect in some circumstances. Googling doesn't turn up anything for me, but it's a closer analogy anyway.


The problem in all this is not with the concept of patents or copyright but that the way it works in practice is to enable the powerful to squash small innovators who are actually doing useful stuff.

Exactly. I think very few people understand the magnitude of the risks and costs to a small innovator when faced with legal claims of any sort from a big business. Its not a level playing field.

Even if you have an essentially watertight case, the laser-eye lawyers against you will inevitably find some weakness or loophole to attack you. They will jurisdiction-shop. They will limit your ability to do business and drag out the fight over years. The huge cost of paying your lawyers will be tiny compared to the impact on your business. Don't underestimate the distraction to your founders and staff of such a fight. And of course investors will run a mile.

Most importantly, no mater how clearly you are in the right you will find that there is a substantial risk that you will lose anyway. In practice the legal system can't be relied on to give a fair result. Even when you win, they can appeal and extend the process further. With another chance you might lose.


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.


"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.


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?


True enough. If someone violates the patent, the Feds don't come in and bust them. The 'little guy' then has to take the violator to court and win before they can get any kind of justice. If it isn't a slam dunk (even with a patent), then the 'little guy' probably can't justify the risk of losing and ending up with the lawyer/court fees.


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.


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.


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.


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.


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.


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.


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.


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.


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.

You're supposed to pay a lawyer his hourly rate to review everything you create and compare it to every patent issued. Apparently this makes a great deal of sense to the lawyers who are elected to pass laws.


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.


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


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.


The private key was derived mathematically from the public key material because Sony generated its keys wrong. Copyright has nothing to do with it.

There's a good explanation on YouTube (until they're taken down by the gestapo) which is the Fail0verflow team describing their research. They have a section at the beginning describing the history of console hacking and game piracy, or at least their perspective on it. They take pains to point out that most of their research is not even particularly necessary to pirate games but instead to run user-supplied software on the PS3. http://www.youtube.com/watch?v=HEFMAP0mTvY

Incidentally, Sony had previously been sued by Certicom for allegedly infringing on patents related to its use of elliptic-curve cryptography.


If copyright doesn't play into it, then I would agree Sony shouldn't be able to prosecute.


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://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.


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/


I see your point, and agree that you can't copyright an algorithm.


that's why I side with the Sony [...] That's how a capitalist free market works.

The free market works such that after a product is sold, the seller has no rights it any more. They cannot remotely disable features after the sale. They cannot dictate what you can and can't do with it.

The PS3 hackers didn't "open source" any of Sony's code, that's ridiculous. Their goal is to bypass it and load their own. They reverse engineered it for the purpose of enabling compatibility with other stuff and extending. This has a long tradition in the US.

Perhaps you're old enough to remember when Ma Bell claimed it was illegal for anyone to plug in a home answering machine or for anyone else to make compatible telephones? After 70 years of R&D you had a choice of three kinds of home phones in one of several colors. The only leg that argument had to stand on was that they were a regulated monopoly and as such deserved protection from the free market. The US decided we'd had enough of that approach and told them otherwise.

I don't even have space to list the choices in communications we gained since that that monopoly was broken up. That's how a free market works dude.


It was the Carterphone decision in 1968. http://en.wikipedia.org/wiki/Carterfone The Carterphone was a device that allowed amateur radio to connect to the phone system, albeit with a Bell interface device. Another decision in 1978 removed the requirement for the Bell interface. Before this decision you had to rent modems from ma bell or use acoustic modems. Those were the good old days when you dialed up your computer and stuffed the phone handset into the side of your teletype for an astounding 300 baud connection. Fortunately teletypes were so clunky that you couldnt type any faster than that any way.


The free market works such that after a product is sold, the seller has no rights it any more. They cannot remotely disable features after the sale.

I agree 100% (unless such special use terms were part of the sale upfront, see pay tv channels).

They cannot dictate what you can and can't do with it.

Not for personal use, no, and I should insist not. However, if I sell you a book I wrote, while you're quite free to read or burn your copy of it, I don't want you to scan copies and widely distribute it.

The PS3 hackers didn't "open source" any of Sony's code, that's ridiculous. Their goal is to bypass it and load their own. They reverse engineered it for the purpose of enabling compatibility with other stuff and extending. This has a long tradition in the US.

If they only took actions for their own personal use I have absolutely no objection. Quite the contrary, I'd encourage it.

I can't say I remember the telephone incident, but I agree with your sentiments on that entirely.


Sort of. It allows lawyers to make hundreds of thousands of dollars on lawsuits if/when it happens. In general though, it's the nature of software to make it hard for someone to steal whole-products worth of code and repurpose it for their own similar-but-different product.

The problem is that current laws now allow someone else to force me to stop using my own code. Which is really a more dangerous threat as far as I'm concerned.


The problem is that current laws now allow someone else to force me to stop using my own code.

Well, no, not exactly. Your reply is talking about patents, which I've agreed need reform. However, you're perfectly free to use and sell your own code, as long as it doesn't duplicate some function which enjoys patent protection. (the problem here is over broad or obvious patents, like Amazon's 1-click checkout) But even then you simply have to do away with the infringing portion. For example, there was a recent post on how storenvy.com just raised funding. Well, they might have had 1-click checkout as a web store function. In the worst case they would have to eliminate that and/or find an even more innovative way for ecommerce customers to check out, but it would not likely mean the end of their business.


In the best case it means a cost of hundreds of thousands of dollars, which I don't have. Hence, not too inspired to innovate there.

I'm transitioning my career from commercial software development to data security research/hacking. There's appreciation for innovation there, the business models are new and fluid and the lawyers haven't figured out how to attack them yet.


I'm transitioning my career from commercial software development to data security research/hacking.

I'm sorry you feel so constrained. To me that signals the current system is not optimum, but that's probably a lucrative decision either way.


I have to admit it's not totally due to IP, but the infosec field has fun smart people in it and has the feel of the early days of the PC. There's a real need for it and funding to match. Plus it's usually easier and more fun to break stuff than build it. :-)


> 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.

I'm pretty sure breaking into someone's computer system like that is illegal regardless of IP laws, and history appears to show that understanding what you're selling gives a rather large advantage.


Well, someone else could have done the hacking and just threw your files up on bit torrent.


...and if you think IP laws are going to be any help at all when that happens, well, I can show you a few torrent links that have been in the news recently.


You're commenting on NEWS.YCOMBINATOR.COM. Perhaps someone here knows how many YC companies --- there are lots of them now --- have been litigated against by patent holders.


Infringement suits are expensive. It's premature to ask how many YC startups have made camp on landmines, because very few are big enough yet to set them off.


It would be interesting info.

But it's often a much better strategy to wait for a company to accumulate profits for a few years and then sue for damages retroactively.

This is one of the fundamentally unfair parts of the system: the innovator makes all the investment and takes all the risk, while the patent holder files some paperwork and obtains the option to sue or not on his own timing.

The deck is stacked.


"solely for the sake of clearing the way for entertainment content startups."

Do you consider Google Books, JSTOR, Wikipedia, etc. to be entertainment content startups?


Your mention of Wikipedia is a red herring since the idea there is the content is user generated and donated by the creator with a CC license. Things that are found to have been copy-pasted are removed.

JSTOR sells content so that's also a red herring.

Google Books is relevant. Their business model is based on not only stealing, but selling without permission content they don't own. This is criminal and unethical.

edit: downvoters please state your case. Is it that you agree that corporations should be able to steal content from those of us who actually create things, as Google is doing with Google Books?


"Your mention of Wikipedia is a red herring since the idea there is the content is user generated and donated by the creator with a CC license."

That's simply false. There is tons of public domain content in Wikipedia, for example the entire 13th edition of the Encyclopedia Britannica was used as the starting point for many of the original articles. And the only reason why there isn't more public domain content like this incorporated is because there isn't any more public domain content; everything after 1926 is under copyright.


You are right there is public domain content. This is public domain and is not even a point of contention.

The only possible issue here is the non-public domain content, so that is what I mentioned. That is contributed under a CC license and that which is not is removed. So it is a red herring. There isn't a problem with Wikipedia.

If you believe the public domain content represents some IP controversy, it is up to you to establish that. I have never seen that argument presented so it's up to you to establish what it is.


"The only possible issue here is the non-public domain content, so that is what I mentioned."

The point is that if copyright were 14 + 14 years instead of life plus 70 years, then everything published before 1997 or 1983 would be public domain, instead of only content published before 1926. This means that there would be exponentially more public domain material that could be added to Wikipedia, so not only is copyright term not a red herring, it's basically the central issue.


Isn't wikipedia supposed to be user created?

That's different from the "pillage and plunder" model you are promoting in your response.


I don't understand why you feel that using public domain materials is a "pillage and plunder" model, nor why we couldn't abandon life+70 and return to the 14+14 year term endorsed by the Founding Fathers.

I realize that we went to life+70 in order that the artists' children might be supported all their life. I do not understand why a fixed term of similar length applies to corporately owned works, nor why artists' children are somehow more privileged than any others. I do not pay my teacher's children all my life, though I owe my teachers far more for the ideas they passed to me. Nor do I pay the plumber's children for every flush, however grateful I might be for benefiting from their work.

Even if state enforced rent may has a place, but current practice has abandoned the original purpose of promoting the progress of science and useful arts and become distorted into a form of economic protectionism where dollars are more important than innovation.

But at least Sony's kids will be taken care of, right?


OK, you are not debating honestly, you are playing games.


I'm truly worried about the progress of science and useful arts. I don't give a damn about money in and of itself.

Accordingly, I release what software I can as FOSS and have put other works into the public domain. In one case, I assigned the copyright on something I wrote to a university so that they could use it in one of their classes, for free, of course.

If this is all a game, I'm doing my best to play it so that everyone wins.


Based on that assessment, all of Einstein's theories were created using the 'pillage and plunder' method since he didn't invent the mathematics and/or physics that he based his work on. Please don't try to 'smear' the public domain just because you have a twisted view of the way that IP law should work.


s/"pillage and plunder"/claim our human birthright to lay the foundations of a better future and push humanity forward/


His point is that current IP laws prevent anything from entering the public domain, so that they can become equally useful someday.


Except it is not true that "current IP laws prevent anything from entering the public domain".


http://en.wikipedia.org/wiki/Mickey_mouse_law

Every time copyright is about to run out on Mickey Mouse, they extend the length of copyright. So far, it's gone from 14 years to 70 years plus the lifetime of the creator.

It is obscene.


Sure, there is a good argument to be made that 70 years plus life is extensive.

However, anyone who wants to place their content into the public domain is free to do so. I have done so myself many times. And those who do not wish to do so, that is their right as well.

What I would like to see in reform is moral rights of creators respected like they do in many other countries.


Please elucidate. Post some URLs that give step-by-step instructions for "placing content into the public domain". Show some examples.

I've heard tell that it's almost impossible to currently, in the US, place anything in the public domain, so I'd love, love, love to see the process to do so. I'd do it myself for some software I've written.


There are a number of caveats, but bugsy is essentially correct in how to do it. It's those caveats that make life difficult.

I don't remember all of them, but you can't disclaim some things like moral rights (usually not applicable, but they relate to things like vandalism of the work & the right to attribution as the author and vary by jurisdiction), with some works like music, you can end up with the licensing organizations collecting royalties on it without your authorization, there are always trademark issues to consider, doubly so for some special trademarks like that of the Red Cross and the Olympics which are enshrined in laws that implement international treaties, and probably a host of other things, including strange things like common law copyrights (there was a case in NY about what should have been public domain music falling back under copyright a few years back).

So... yeah, you can disclaim your work into the public domain, but there are still gotchas out there and you need proper legal advice to avoid them even when you're using what should be copyright-free works, because there are all sorts of weird formalities like the requirement in the USA that copyrights can't transfer without a "written memorandum of transfer."

If you just want people to be able to use your software, I'd probably just use a BSD license instead of the public domain. It's permissive enough that it shouldn't create problems for anyone.


I hereby release the following original story into the public domain:

Once upon a time five philosophers came for dinner to eat fish. But there was no fish, or utensils to eat the fish. This was a sad day for the five philosophers. A servant boy was sent to buy five fine bowls of spaghetti and five plastic forks. The servant boy quickly succeeded at his mission, returned, and set the table for the five philosophers. They sat down and were about to start eating when one of the philosophers said, "Stop, no one touch a thing. This is a trap."


http://wiki.creativecommons.org/PDM_FAQ

Public domain mark FAQ from the CC people.

You'll probably want to look at http://wiki.creativecommons.org/CC0_FAQ which is the disclaimer from copyright (CC0) FAQ.

An excerpt from the later:

"How does it work?

A person using CC0 (called the “affirmer” in the legal code) waives all of his or her copyright and neighboring and related rights in a work, to the fullest extent permitted by law. If the waiver isn’t effective for any reason, then CC0 acts as a license from the affirmer granting the public an unconditional, irrevocable, non exclusive, royalty free license to use the work for any purpose."


"Their business model is based on not only stealing, but selling without permission content they don't own. This is criminal and unethical."

Technically, even if what you were saying were true, it would be civil and not criminal. IP is part of civil law, not criminal law.


As well as civil copyright law, the US has criminal laws with penalties up to five years in prison (and doubled for repeated offenses).

http://www.justice.gov/criminal/cybercrime/18usc2319.htm

I don't believe there's anything like this for patent or trademark infringement, though.


I think this is a symptom of a larger problem with American governance, namely that lobbyists for entrenched interests have too much power and the general population (innovators included) has too little.

I'd rather attack the root cause with a constitutional amendment that states "All legislators must live full-time in their home districts", and have them conduct official government business through email and videoconference. That makes lobbying impractical: a company that wanted to lobby Congress would need to station lobbyists in all 435 congressional districts, and the lobbyists would have no more pull than an ordinary citizen that the representative happened to be friends with. The reason big companies have the sort of clout that they do in American politics is that there are economies of scale to political power, and once you have scale, you can buy more of it.


IP is more about entertainment startups. It's a battle over our right to preserve our own culture.

With that said, he'll never go for this and neither would the legislature, so... not getting my hopes up.


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.


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.


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.


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.


If its a minor UI feature, you can just change it. And if you haven't made any money off of it then they will not get much in damages.

The big worry is if you'd made tons of money off of it or if it is a big part of your program.

And the way patent litigation typically works in the US it will be small companies suing large companies. So you can sue Google or MS for using your great idea. Rarely will they sue you. You generally need to be on their radar for this to happen, which usually means being a threat to one of their businesses.

At this point, moving anywhere over this is crazy premature.


I disagree that it's only big companies you need to worry about. There was recently a thread here on HN[1] about an open source flight plan project shutting down after being threatened by legal action from a small company that provided a similar service (and had some patents around it).

But regardless of the specific probabilities of any one startup getting sued, I still have a problem with a system where the government will harass you into bankruptcy on behalf of an incumbent corporation if that corporation decides they want you out of the way.

It's like a landmine in the middle of a football field. I probably won't be the one who loses a leg but it's enough of a threat to think about seeing if there's a better field to play on.

[1]http://news.ycombinator.com/item?id=2007899


I still have a problem with a system where the government will harass you into bankruptcy on behalf of an incumbent corporation if that corporation decides they want you out of the way.

This will happen to you in any country in the world. Money runs governments. If there's an influential company (and your not) that wants you out of the game, you have a tough road ahead anywhere.



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


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.


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.


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 ...


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.


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.


Eliminate patents for everything. Period. If bigPharma discovered that amazonian aborigines by eating a rare fruit have lasting erections, they can't claim a patent for that, moreover, let other bigPharmas develop that drug too (on the shoulders of giants) so everybody (we the people) benefits from innovation, not just the first one who got there. We may give them a year to profit from their discovery so they build a brand but that's it. I rather go to the drugstore and find 10 cures for cancer than none because somebody got a patent and has a monopoly for that drug.


>Eliminate patents for everything.

vs

>We may give them a year to profit from their discovery*

Which is it?

>I rather go to the drugstore and find 10 cures for cancer than none because somebody got a patent and has a monopoly for that drug.

I'd agree the terms are too long, Pharma's spend more on advertising than R&D.

However, this is short sighted. In part the funding comes from investment, the investment won't be there if once the drug goes on sale the Pharma can't prevent their rivals (who didn't have the up front costs) from simply capitalising on the invention. The investors unfortunately aren't investing to find a cure (generally) they're investing to make money. It's capitalism.

If you're going to keep capitalism I think you need to keep some form of patent (but I'd limit the term more and probably add a profit multiplier limitation too if it's possible to work out the details effectively).


"Which is it?"

No patents. Just a recognition of being first which entitles you to one year advantage over your competitors. And you have to have a product in the market in that year, so no patent trolls sitting on their asses collecting fees.

"funding comes from investment"

Well, yes and no, I bet you most of scientists and researchers work their butts off for recognition first, then money. When Flemming discovered penicillin he wasn't thinking on patenting that discovery, and I bet he wasn't being funded either, he just did it for the love of science and the greater benefit of humanity. The same can be said of Tesla. For the joy.

The same we code day and night for the love of our profession.


>When Flemming discovered penicillin he wasn't thinking on patenting that discovery

That's not how drug development works though is it, we can't rely on happy accidents for all scientific/medical advances.

>I bet he wasn't being funded either, he just did it for the love of science and the greater benefit of humanity

This works if you have a source of sustenance. It doesn't work against a backdrop of capitalism.

Tesla became wealthy through patents enabling him to fund his later experimentation. Whether he did it to further scientific understanding or not he benefited greatly both in wealth and ability to further his research because of the IP laws at the time.


Fleming discovered penicillin by accident, and then only used it in it's weak form to create vaccines that didn't actually work, though he still sold them and made good money from them. He actively discouraged his students from following it up or improving it and it was only later when government funding was made available to create an effective antibiotic that his research was resurrected and perfected.


> 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.)


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.


If we're going to support government monopolies for drugs, why not just fund them directly from taxes? At least then we can direct them not to waste their energy creating minor variations on drugs as they fall out of patent protection, or chasing lucrative pill-per-day treatments for lifestyle diseases of the rich and instead focus on curing illnesses that blight large numbers of people across the globe.


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.


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.


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.


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.




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