As a technology founder who later got an MBA, I've found a divide among the technology and business camps on patents and trademarks.
Tech people I know generally agree that patents and copyright stifle innovation. They may once have helped, but no longer.
Business people I know believe patents help create entrepreneurship. They think about it from a founder's perspective (they haven't founded companies themselves) and think patents would help that person establish a foothold against incumbents. They ask, "Without patent protection, how can someone get paid for their creation?"
As I see it, the business people don't have relevant experience. They're talking about a myth that doesn't exist anymore if it ever did. People who innovate and create have relevant experience and know how patents and copyright are used in practice.
At least this judge understands too. I hope his acts catch on.
The more relevant question seems "Without patent protection, how can patent lawyers get paid?" because patent lawyers is what the system creates, at the expense of technological innovation, as I see it anyway.
I'm a tech person and I don't agree that "patents and copyright stifle innovation".
I believe that patents, as presently construed, do. It's not the concept, but the process that's the issue. Terms are too long, they have no requirement of actually bringing a patented idea to market, and they are transferable. It's the last one that is a huge problem to me.
We've turned patents into a tradable commodity that often have a lot more value as weapons than as mechanisms to defend an idea in the marketplace. The insane length of the protection only serves to make them more dangerous.
I support patent reform that addresses these issues, not the abolition of patents entirely.
I think those who argue for patents have to show how exactly patents promote entrepreneurship and innovation.
What patents do is to boost the value of ideas relative to execution. They are supposed to help individuals with great ideas but without access to the resources required to execute on them.
For patents to make sense, there has to be a very large gap between the capital required to work on the idea itself and the capital required to bring it to market. Something like building a factory or conducting 10 years worth of clinical studies. Something that enables a big encumbant to copy an idea and win every time against the original innovator.
I don't think that is generally the case in the software space. It is certainly more true for enterprise stuff that you need sales people for and that's why MBA types may think more favorably about software patents. But even for that kind of software, the gap isn't nearly as large as for inventing a new type of nuclear reactor or jet engine or cancer drug.
Another problem with patents is that they are supposed to make people publish their research instead of keeping it secret, but many small companies and individuals cannot afford to go through the patenting process.
I can say for myself that I do not publish my research nor do I open source it. Secrecy is the cheapest option to have a head start with exactly the kind of ideas that might really benefit from patents. Ideas that you don't think someone else could have tomorrow by accident or by gradually expanding on existing ideas.
I think ideas do matter. Not ideas like the one click order or hey let's put a buy button in a game, but how to accurately recognise everything that's said in a room full of people, how to seperate sarcastic from factual statements in text, how to predict the number of bananas that need to be on the shelf next saturday.
The problem with you copying my invention is that you didn't share my research costs, so you could easily beat me on price. But as they are software solutions, I can bring them to market myself without much difficulty. I can hire or partner with the best UX designers and marketing people and I'm protected by copyright.
I wouldn't want to stop you from working out similar ideas and compete with me, nor would I want to become a law firm spending my time in court with people who had similar ideas. Patents are a danger and I don't need their protection because software ideas are either trivial and shouldn't be protected or they are complex and don't need protection beyond copyright and contract law.
Patents as a tradable commodity enable valuable specialization. If you're an inventor who specializes in, say, LCD technology, you can come up with a new technology, patent it, and sell it to companies that use LCD screens. If patents weren't transferable, you'd have to go into the business of making cell phones, laptops, etc, which isn't your speciality.
Tech people I know generally agree that patents and copyright stifle innovation.
Do you not know any "tech people" who are fond of the GPL? It relies on copyright to function. The same goes for enforcing the attribution requirement with Creative Commons.
There are a lot of things I would like to see changed in both copyright and patent law. I am a proponent of a "thin copyright" similar to that proposed by Siva Vaidyanathan, and I believe that software patents do not fit into the current system at all. I think eliminating the legal recognition of intellectual property entirely, however, would be throwing the baby out with the bathwater.
The fact that the GPL uses copyright is just an implementation detail.
In actual practice, it does the opposite of normal copyright. Copyright is usually used to restrict access to some work. A public domain work can be accessed to anyone, but, as it evolves, future contributors can restrict access to it. A GPL work remains accessible to everyone in perpetuity, not just from a legal standpoint but also from a practical standpoint (no need to reverse engineer or disassemble). Not only are you allowed to use the work, but also nobody is allowed to stop you from using it in any form. It really is on the opposite side of the spectrum from normal copyright (we can imagine public domain to be the midpoint).
In the FSF's perfect world, the GPL would not be necessary. Instead, you would be able to access and modify all your software without restriction. The GPL is just a clever way of creating and enforcing such a world without changing existing legislature.
Also, "intellectual property" is an unfortunate and rather loaded term. For one, it covers several distinct concepts like copyright, patents and trademarks which all behave differently and have different ramifications. Secondly, it presents a false parallel to real property. Whatever you think of Stallman's ideology, you have to admit he is a good writer (certainly infinitely better than I am) and very clear; here is his case against the term "intellectual property": http://www.gnu.org/philosophy/not-ipr.html
A final note: while the general software community is divided on patents and copyright, I don't think most people are against trademark law. If anything, trademark law is about fraud--you're not allowed to lie to customers about being affiliated with a known, existing brand. I suspect most people arguing for copyright and patent reform are fundamentally fine with trademark law as is, or want minor changes to it at most.
Normal copyright gives an author a "bundle of rights" that they may license how they want or declare to be in the public domain. Even if you classify the GPL as "copyleft, not copyright" or "legal judo," I don't think it works opposite of the way that normal copyright does. In a world where everything was public domain it would still be possible to circumvent GPL's source code distribution provisions.
There is one part of copyright that might run counter to the GPL, however, and that is the right of an author to reclaim copyright after 35 years. If the right applies (i.e. not a work legally classed as work for hire) it cannot be revoked, even by the author, until the 35 year term is nearly over. This right is generally a good thing, but might be a bit messy or disruptive if someone who wrote old UNIX IP decides to try to reclaim their work.
Unfortunate or not, intellectual property is a term of art at this point. However, connotation can differ from denotation, and it often does in law.
I'd prefer if for software, the only possibility was something similar to GPL v3+. Meaning: instead of copyright as it is known know, the law contains the terms of the GPL. So for any software you must be able to request the source code in a usable form.
Currently, copyright allows software to be released in a restricting (binary) form. As a result, the client always has to rely on the software vendor.
I rather have more competition in that. When software is created, I think there should still be a few possibilities. I think it is good if a company can still charge for software per copy (have to make money; support isn't everything). So for each software it should be possible to restricts its distribution (like copyright atm). However, a client should be able to hire another company and make their own modifications to that software (in some cases you just have to keep the changes to yourself).
At the moment any software basically results in a monopoly. Especially within bigger companies (loads of software which source might not be available anymore, etc).
GPL is often seen as communism. But IMO the current situation doesn't allow for much competition. Law should be always adjusted to ensure (healthy) competition can take place.
To be clear: I am not advocating that every software company should work like the current free software/open source software companies. Read by post again if you thought that.
I just heard a great example on the radio the other day. The piece O Fortuna was written by Carl Orff in 1936. In 1991, fifty five years later Orff's family sued to keep the Belgian group Apotheosis from releasing a heavily sampled version.
Now I don't know exactly how much the Apotheosis version adds to the body of culture. Most new music is crap, after all. But it does represent artistic innovation, and it was definitely stifled.
If someone had asked, "how do patents stifle innovation?", we'd get a thread full of stories of independent developers and startups with useful products being sued because some tiny detail of their product, likely some de rigueur aspect of modern UI, violated some obscure patent. Nest vs. Honeywell might be a good example.
What you have in those stories are cases of valuable enterprises that usually benefited in no way from the disclosures in the original patent; the patentholder and the "violator" are usually standing on the shoulders of the exact same giant.
So, what's the equivalent scenario for copyright? The a band called Apotheosis couldn't do a remix of O Fortuna? One supposes there's a valid case to be made that we're all somewhat worse off for not having access to that remix... but it's hard to put it on the same plane as a startup being sued out of existence because something they designed and implemented was inherently fenced off by a patent monopoly.
His example is copyright stifling culture. That's a separate issue.
As far as stifling innovation, one only needs to look at the recording companies. The resistance to new technologies, easier ways of accessing "content" - that's definitely restricted by the application of copyright laws. One recent example is Zediva. Copyright then ends up concentrating on a few companies that were able to make deals, rather than ones that are continually innovating in technology. Look at how long it took to get "legal" access to The Beatles music as MP3s.
I don't think you can see copyright as not stifling innovation in those areas.
But, I suppose, we could argue that it's just the horrible overapplication of copyright laws that are stifling innovation. A weaker copyright system would probably work out just fine.
If you look at the parent I think agreement on the patent issue is implied. Certainly patent damage is more obvious and is more important in terms of the advancement of technology and increased standard of living.
But that doesn't mean copyrights don't stifle cultural innovation. It's just that most people don't care as much about the cultural stuff. O Fortuna is a particularly good example because the words to which Orff set his music were in the public domain, having been written centuries ago. His work could not have been created if the poem was still under copyright.
I just think of all the wasted man-hours - probably centuries - of developers' time reimplementing existing software because the existing one isn't supported anymore and/or lacks some secondary features, and of course it can't be adapted or improved by anyone else.
Of course, that's more to do with it not being FOSS than just being copyrighted.
Interestingly, that's the same piece of music that got KMFDM's Naïve album in trouble: the original version had to be deleted and the album was unavailable for more than 10 years. A new version titled Naïve/Hell to Go and
missing the O Fortuna sample was later released.
Copyright hampers rapid repackaging of ideas, which is a major vector for innovation. Wagner's Ring Cycle plot was a refactor - a repackaging of existing stories and ideas. Much of Handel's _Israel in Egypt_ (and many other works) is a repackaging of earlier tunes. Bach's Goldberg variations remixes then-popular tunes.
Consider cross-pollination. Nintendo wanted incidental background music for tetris. They found some tunes in the public domain, and wrote some themselves. Only possible when there's a public domain. The game isn't about the music, but the fact that they could mix good music in made it better.