Hacker News new | past | comments | ask | show | jobs | submit login
Even experts get it wrong (notch.tumblr.com)
201 points by vasco on July 24, 2012 | hide | past | web | favorite | 141 comments



The dude attacking Mojang isn't looking good.

> Its amazing to see so many people loyal to this game maker. Good on him.

Eh, didn't take the time to consider some of us are against the patent bullying, and not just fanboys.

> 1. I am not the inventor of the patent in question.

> 2. The personal attacks are a bit much don't you think?

As long as people aren't doing anything illegal, I don't see why they should refrain from letting you know their displeasure.

This blog post doesn't give enough context. My google searches say he is backing up the company, but distancing himself personally from the lawsuit.

http://www.escapistmagazine.com/news/view/118649-Uniloc-Crea... http://www.computerandvideogames.com/359452/uniloc-founder-r...

> Patents are there to stop people stealing a technology you invented and letting you have a fair shot at making a living from it. If Uniloc wants to test this in court it is there prerogative, the same way that Mojang contested the use of the copyright term "Scrolls" and took people to court.

As notch pointed out, he is throwing around the word theft when patent infringement isn't theft(for the simplest example, consider 2 people independently discovering/inventing something), and Bethesda took Mojang to court, not the other way round.


Patents are there to stop people stealing a technology you invented

Actually, that's exactly the purpose of patents. Patent legislation casts a wider net only because there's no effective way to assess the validity of someone's claim that "I invented this independently and was uninfluenced by your invention."

You and notch are in the technically wrong column on this one. Compare to: "Life jackets are there to prevent drowning". "No, they also prevent swimming under water".


Actually, that's exactly the purpose of patents.

From the US constitution, section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Note how it doesn't say anything about "intellectual property" or "theft" or "moral rights", or even third parties. I'm not in favor of abolition of copyright, patents and trademarks, but this is exactly the kind of muddled, framing[1] language that the blog post linked to is trying to correct.

The laws have been pushed so far in the direction of "protecting" intellectual "property", and language has become so twisted by those who have the most to gain from the results that you can argue it's how things stand today, but it obviously wasn't the original intent, and it doesn't necessarily make it right. It's also not necessarily good economic policy (you want to see startups killed off in this country? Just continue to let copyright, patent and trademark law continue to expand).

[1] - http://en.wikipedia.org/wiki/Framing_%28social_sciences%29


The word "steal" was in the original quote that Notch attributed to whoever that other guy was. This question of whether that word "steal" is used correctly is total non sequitur. The primary purpose of patents is to disallow use of an idea without permission (that's what "stealing" was intended to mean in the quote, whether you like that word or not) in order to "promote the Progress of Science and useful Arts".


Ignoring the "stealing" vs. "infringement" red herring, you're still misrepresenting patents.

The motivation behind patents was to get inventors to reveal their inventions. Prior to patent law, inventors just kept everything a secret. This meant that inventions would get lost and had to be rediscovered later on. So in exchange for revealing their "secret sauce" to the state, inventors get a temporary monopoly on their invention.

As for the idea that you could never, ever tell whether somebody invented the same thing independently from another, I don't understand why you'd think so. In the extreme case, if it's the 16th century and two people living on different continents invent the same thing days apart, you can be pretty darn sure that neither copied the other. Information didn't travel that fast. But this doesn't matter in patent law, because its purpose it not to prevent the "stealing" of inventions. Its purpose is to encourage disclosure by awarding a temporary monopoly on an invention.

This is in contrast to copyright, where it is a valid defense to say you created your work independently.


After researching this briefly, it seems that the earliest "patents" in England weren't awarded to systematically encourage anything in particular, but were merely monopoly grants given by the monarch for whatever reason (e.g. as reward for X, I'll give you a monopoly on Y for 20 years). The French apparently developed a system that treated inventions as property.

Regardless of the historical motivation for patents, the reason for the inclusion of patents and copyrights into the US constitution and law was clearly to encourage new invention, not just to get inventors to disclose what they would have invented anyway. The US constitution was crafted in the middle of the industrial revolution, as we moved away from master craftsmen to big industry where it's hard to keep secrets.

As for the idea that you could never, ever tell whether somebody invented the same thing independently from another

Of course you might occasionally be able to prove convincingly that you came to an invention independently, but in general you can't. What's your point? Why do you think the US adopted a first to invent rule rather than a first to file rule? If the goal is just to encourage disclosure, then we'd have the latter right? First one to tell us how it's done wins! But that's not the rule we have, and the reason is that primary purpose of patents is to encourage new invention.


Not a legal scholar, but isn't the US transitioning to first-to-file?

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


The purpose of patents has nothing to do with theft or personal property rights. They are a voluntary grant of special protection to the inventor by rest of society; society promises to grant the inventor exclusionary protections for a period of time, after which the idea ceases to be exclusive. That is the reward that society is willing to pay for those of us who use the advantages which society provides to create new things.

At no time does the patented idea become property, and therefore, by definition, it cannot be stolen; every patent holder owes his/her/their patent to society, not the other way around.


I don't understand why people keep saying it isn't stealing. According to Merriam-Webster:

  Definition of STEAL
  transitive verb
  1a : to take or appropriate without right or leave 
  and with intent to keep or make use of wrongfully
and

  Definition of APPROPRIATE
  transitive verb
  3 : to take or make use of without authority or right
Why do opponents of IP rights keep saying it isn't stealing? There's nothing in the definition of stealing that says you have to physically remove something from the possession of the owner/creator of the thing being stolen. You just have to make use of it without the authority or right to do so.


I don't think the dictionary is a very useful authority, here. Dictionaries are reactionary -- they document what words we use. They don't create words. We do that.

(Patent|Copyright|IP) infringement is an old issue, yes, and perhaps in the established context of one business copying and selling the work of another, it's a near neighbor to theft. But this world of free, crowd-sourced torrents . . . this is a new thing. The laws and dictionaries haven't caught up. We are having the conversations now that will BECOME laws and will UPDATE dictionaries.

Whether you think infringement of this sort is bad or okay, it is a very fair point to say that it is not the same as stealing. It isn't. It is a fundamentally different act, and how bad it is is something we should discuss independently. It would be unfair to import the negative rhetorical weight of the word theft -- an act that can directly impoverish or even imperil someone -- with what we're talking about. And likewise, if we decide infringement isn't so bad, it would be unfair to carry those emotions over to how we feel about physical theft.

I wish we had a catchy term for it. Freeling or "copying" or something. I don't know. I'm not sure exactly how in favor it of I am, either. But I do think it makes a lot of sense to use a separate term to discuss a genuinely new issue, so we can do so in neutral emotional territory and evaluate it on its own merits.


> I don't think the dictionary is a very useful authority, here. Dictionaries are reactionary -- they document what words we use. They don't create words. We do that.

That is a very insightful comment, perhaps obvious in this particular case, but people often argue semantics over dictionary definitions, which is often unrelated to the true issue at hand.


>Why do opponents of IP rights keep saying it isn't stealing? //

Because we're looking at the legal definitions of theft (for which stealing is a synonym) in various jurisdictions as opposed to the Merriam-Webster definition.

In my current jurisdiction the Theft Act 1968 Section 1(1) defines theft/stealing thus:

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly."

http://www.legislation.gov.uk/ukpga/1968/60/section/1

In legal matters it's preferably to be precise so you can be more certain what the exact ramifications are.

In any case the man-in-the-street, I warrant, would remark that stealing someone's property meant you had taken it away. For example, you steal my car. No one without an axe to grind is going to say that I still have access to and full unrestricted use of a car if you've stolen it.

I've read caselaw where the key element as to whether theft had occurred was whether the goods were carried off. If you attempt to steal something but don't actually end up denying the owner of their goods (eg you drop it before leaving the premises) then you've not stolen anything and the charges are lessened [if not negated].

Reading California state law, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen..., it's clear that US states apply a similar test of whether goods are "taken" (stolen, taken and carried off) in order to describe an action as theft.


The most general interpretation of that definition doesn't seem to match common usage of "steal". If I use your pen without permission, but without taking it, you're going to confuse a lot of people if you claim I stole it.

Secondly, there's a difference between what's being argued here and the common "copying isn't theft". Notch is pointing out that patent infringement doesn't even always involve copying. Sometimes it's just rediscovery.


Another example: if an “identity thief” appropriates your personal information, you’re still the same person—your identity wasn’t stolen, it was infringed.


Another example: if an “identity thief” appropriates your personal information, you’re still the same person—your identity wasn’t stolen, it was infringed.

Just to go off on a tangent for a moment, this is another reframing of a crime that bothers me. There were already laws on the books against "identity theft" long before it happened: it's called fraud. So why does identity theft exist? Because banks and creditors and government agencies are constantly trying to reduce cost, they don't want to have to track down the person who defrauded them, that costs money. Instead, they put the burden of proof on you, and now it's your mess to clean up.


This prompts an interesting question: Is identity theft the act of procuring personal information without permission, or is it the act of using this information to misrepresent your identity? Is it both, necessarily? What if you don't harm the victim in any way? And what part of this constitutes actual theft? To the person, it certainly _feels_ like a part of him was stolen and used without permission.

Having published creative works on the Internet myself, I certainly understand why so many content creators try to prevent unauthorized copying. You really do feel vulnerable. Something you're very proud of has been shared with the world, and now it's in some seedy part of the Internet, with forum dwellers making fun of it.

I've noticed that as social creatures, we're unable to have empathy for corporations. There's nobody to feel guilty towards when you download that copy of Autodesk Maya. I don't think our brains are designed for it. We like individuals and small businesses because we can fit a picture of the actual people inside our heads. We feel guilty when we infringe upon their copyrights, because we know it might actually hurt them personally.

Most illegal acts can be boiled down to emotional damage. As pointed out elsewhere in this post, the right to property is an abstract concept. You _decided_ to hold onto that object, and you're unwilling to part with it. It doesn't seem abstract, because it's something our brains instinctively do, but it has no root in physical reality.

Why is murder a crime? Supernatural beliefs aside, the victim most certainly doesn't care anymore, because he's dead. As we all know, the problem is the emotional and financial damage to the people left behind. Prison sentences serve to control this damage.

Can a large corporation feel emotional damage? Should these laws apply if there is no emotional hurt? Everyone can see that a large company like Adobe is nowhere near going bankrupt, and their employees are most certainly not hurting because of piracy. Adobe has money coming out of its rear end.

Perhaps our laws should offer less protection if you're big and strong. Vast swaths of the world's population are happily breaking copyright law, and _not_ feeling guilty about it. Some shades of gray are clearly missing here.


Arguably the identity part modifies the type of theft, as in "theft using your identity". They take your money, or your credit, and use your identity to do so.

Either way I think that one is arguable. Can you still enjoy free use of your identity once it's been used in this way. Remember in this that your "identity" is not your real identity attached to your person it's your identifying details as used by banks and such.


Stealing usually has the undertone that this is a zero-sum game. You have something, I steal it, you don't have it any more. The operative word is "take" and it implies the removal of a thing from the sphere of influence of its owner into the sphere of influence of the stealer.

The thing need not be directly physical. You can steal money from someone and spend it without ever seeing a paper dollar.

Your definition would have me stealing a wall of a public building when I drop trou to urinate on it. That's one way to make use of it.

We have different words with different meanings for a reason. That's why we object to adding "unauthorized copying" to the definition of stealing.

"Nothing of value was lost", only perhaps "potential value". If it couldn't be copied, it could potentially be worth $0 to the copier/market. That's what makes copying distinct from stealing and interesting from a moral point of view.


Because that's not most people's understanding of theft - even other dictionaries seem to leave out the "make use of" side of it.

In the case of patents in particular, where the "thief" may have genuinely had the idea independently, it seems only a quirk of the law that they don't have the "authority or right" to make use of their idea just because someone else had it first.


Why do you pick meaning #3? http://www.merriam-webster.com/dictionary/appropriate (emphasis added):

  1 : to take *exclusive* possession of
Also: why are you calling copying 'taking'? If I sit down at the Mona Lisa, paint a copy, and take that home, do I steal it?


> Why do you pick meaning #3?

Surely we should be allowed to take whichever definition best matches the intended meaning. The fact that there are other definitions that do not suit our purposes should have no bearing on the "correctness" of our language.

An example. If someone takes issue with me saying that a soldier was "pinned down", I might defend my use of the idiom by saying that they were unable to move because of enemy fire. The question, "Why do you pick that particular definition, when the term can also mean 'fixed in place with literal pins'?" seems a little silly.


> Why do opponents of IP rights keep saying it isn't stealing?

shrug

probably because it was ruled thus by the supreme court. so, i guess there's that...

http://scholar.google.com/scholar_case?case=3901205964610715...

m3mnoch.


If I lure some customers away from my competitor by offering a superior product at a lower price then my competitor might complain that I "stole" them. They might say A: Stealing is wrong B: You stole my customers Therefore: C: What you did was wrong but due to the fuzziness of English words A and B don't actually imply C, since they used "steal" in different senses.

I think a far better word for these discussions is "trespass" as in "he trespassed on my patent/copyright/trademark". I think this has the advantage of being closer to literally true in a legal sense, more in line with what our moral intuition ought to be about for copyright, and giving the right idea about how the law regards the acts (copyright and trespass can be crimes if done in certain ways, but are usually just torts).


Its not stealing because the word fails when used outside physical property. To make some examples:

Person X entered my building without authority or right to use the restroom. He stole my restroom!

Person X insulted me. He thus "stole" my reputation.

In Sweden, the state has sole right to sell alcohol, thus any Person X that is selling alcohol is thus "stealing" from the state.


Laws are not about dictionary definitions or personal interpretation. They are a formal specification and that formality is what we call "legalese".

I'm not a lawyer, so I would probably mess up the explanation, but fortunately I saved the link to it, so you can read it straight from the lawyer who explained it right here on HN: http://news.ycombinator.com/item?id=3696526


When people call copyright/patent infringement "stealing" or "theft" they usually don't mean to invoke the legal definitions of those words. The fact that this conversation occurs so often should make it clear that there are a number of people whose personal idiomatic definitions of those words include "illegal getting-of-things".

People are entitled to their personal definitions, and the fact that the legal definition is different is immaterial. When a reckless driver crashes their car into a kid, the kid's mum calls the driver a "murderer", and we don't consider them "wrong" (because the guy's crime is actually called "vehicular manslaughter".)

Now, it's fair to argue that using these defintions of "theft" is prejudicial, and that it's also fair to argue that people should refrain from that usage to minimise ambiguity, but it's not fair to argue that they should stop using a word because it doesn't agree with some "authoritative" definition (except in legal contexts, of course.)


When people call copyright/patent infringement "stealing" or "theft" they usually don't mean to invoke the legal definitions of those words. The fact that this conversation occurs so often should make it clear that there are a number of people whose personal idiomatic definitions of those words include "illegal getting-of-things".

I think you're looking at it backwards. The fact that this conversation occurs so often makes it clear that there is quite a lot of people who are aware "theft" is an incorrect term for it.

The way I see it happen usually is that these people point out that infringement, unlike theft, doesn't take away some physical property and isn't a simple zero-sum act (as in, if I steal 10 dollars from you, you have 10 dollars less). The next thing that usually happens is that the answer is something along the lines of "but it's still wrong" and/or "you're just splitting hairs".

That's why I brought JackC's explanation into play: he explains the real difference between theft and infringement, without sliding into legalese, and he also explains why it's so important.

People are entitled to their personal definitions, and the fact that the legal definition is different is immaterial. When a reckless driver crashes their car into a kid, the kid's mum calls the driver a "murderer", and we don't consider them "wrong" (because the guy's crime is actually called "vehicular manslaughter".)

I strongly disagree with this. The reason why people protest that infringement is not the same as theft is precisely because they feel that the legal definition matters.

The people who point out difference between theft and infringement don't do so because their argument is "Infringement is not theft, so it's okay." (Or at least I don't know anyone dumb enough to try that.) They do it because they know that infringement is at the very least legally wrong and they want to get the emotional coloring of the word "theft" out of the picture, so that people can finally settle down to discuss whether the laws governing infringement need to be changed or not.

Incidentally, I believe that a lot of people would consider "the kid's mum" from your example wrong, but that doesn't mean they claim that the reckless driver is not guilty or that he should be dealt with leniently.

Now, it's fair to argue that using these defintions of "theft" is prejudicial, and that it's also fair to argue that people should refrain from that usage to minimise ambiguity, but it's not fair to argue that they should stop using a word because it doesn't agree with some "authoritative" definition (except in legal contexts, of course.)

It's not about minimizing ambiguity. It's about stopping people from misrepresenting one thing as another, so that the correct thing can be discussed. What I think is not "fair" is telling those people "Well, my definition of 'theft' encompasses 'infringement' and I don't care, because I shouldn't be held to some 'authoritative' definition."


Well, I could get into a hundred reasons, but the primary one being that I personally don't recognize any concept which attempts to frame an idea as being property. It isn't property, I can't hold on to it, I can't touch it, and I can't steal it. You don't have any right to an idea over any other human. This is an abstract construct which attempts to create an artificial commodity where there isn't one. The consequence is it restricts humanity adversely as progress is controlled by those who have the currency to file thousands of patents per year. The free world is changing from a democracy to a corporatocracy.

Speaking of which, if you still don't understand, think for a second of democracy (an idea) being patented. People couldn't vote unless they paid licence fee, and if they were accused of voting without a licence then they would be deported without a trial on suspicion alone...

It's absurd, but it's more absurd that we've been letting it happen.


Too bad it doesn't matter at all what you personally recognize. I happen to agree with you. And it does suck that reason has anything to do with this stuff. It's about money and control. This is just another example of a few people or corporate entities vacuuming up all the resources of the world. In this case they are vacuuming up raw ideas and the ability for individuals to profit from those ideas. They do this because they can. They have power and they use that power to change policy to allow them to do this. It's that simple. And it will only get "better" if it suits them. And I don't see it suiting them. Vive la revolution!


> It isn't property, I can't hold on to it, I can't touch it, and I can't steal it. You don't have any right to an idea over any other human. This is an abstract construct which attempts to create an artificial commodity where there isn't one.

Apart from "holding on to it," what you say in the quote sentence is true for pretty much any property. In a strict sense, property is what you can defend. However, in order stop people using violence to defend their property, the government steps in and defines material property and vows to defend it for you through laws about theft, etc.

So property is an abstract concept enforced by the government.

Now, the government simply looks around and says, "what else is valuable for people that we can protect for them?" One is land ownership. You can't physically be on the border of your land all the time with a gun, so the government has laws about trespassing and poaching, etc., and enforces them for you.

Money is another abstract concept the government defends. It makes things easier for everyone to have a common currency, instead of trading chickens and cows, so even though $1 doesn't have a "material" meaning, it represents value and therefore people have agreed to respect it. The government proposes a country-wide currency to replace instability of ad-hoc currencies.

Another is copyright. The government agrees that creative people deserve "ownership" over their work, so they can profit from it, and this bargain is struck in order to encourage development of culture. It's a concept of intellectual property that is simply a contract between the people and the government, and the government vows to defend it.

Another example is patents. The government wants to encourage research and development, and one way it sees to do so is to help inventors profit from their ideas by vowing to defend their rights to it for a certain amount of time.

Before you get all upset (if you're not already), I agree very, vere strongly with the position that there are clearly problems with patents--specifically that they encourage many things we find distasteful as society, and the minefield effect is terribly detrimental, especially in certain areas like computer programming. There's no question that patents are a problem today, with the pace of technological development being what it is, and it's clogging up the legal system like nothing else. These are things that need to be solved. If the solution is to abolish patents I'm not even necessarily against that, though I think I agree with Judge Posner that they make sense for certain industries.

However, the claim that patents and copyright and any intellectual property is not consistent with the idea of material property is, imho, completely false. All of these concepts share the same root, that the government vows to defend your ownership over something. Just because some property is material and other property is "intellectual" does not make the latter "abstract" and therefore invalid, because the whole concept of property is abstract, it is nothing but an agreement.

This is the role of government, really, and I'd say one of its only legitimate roles, apart from infrastructure building, is to establish agreements on what we consider property, and enforce them. Now, whether this is done well is a subject of debate, but conceptually it is self-consistent.

If you don't agree with this, feel free to grab your gun, squat somewhere with everything you own, build a wall, and try to keep everyone from taking your stuff, but otherwise you have to acknowledge that the whole concept of property itself is as intangible the idea of intellectual property.

That doesn't excuse certain aspects of intellectual property from being ill-defined or badly designed, but the concept is not invalid. The extension from material property is a logical one.


I think we should be careful about the word property. In the case of copyrighted works, you do not own the work, you own the copyright to it. In the same way with patents, you don't own the patented idea, you own the patent. Both of these are abstract constructs that means society gives you certain rights, but do not extend ownership to the ideas. This is plainly obvious with regards to copyright since the fair use clause gives anyone right to make copies under certain circumstances.

Even in the case of land ownership, one could argue that what you own is much closer to a "license to use the land surface" since you can have surface rights without having the rights to mine or drill for oil on that land.

So your idea that property comes about because government says "what else is valuable for people that we can protect for them?" I think is incorrect. Property rights aren't some God-given right, we as citizens agree to handing out the rights to pieces of the commons to individuals because there is some net gain to everyone from this. All of those "rights" you describe are therefore subject to an evaluation of whether they serve society's purpose, and I think it's pretty clear that's a discussion that is very relevant to patents and copyrights.


I agree with everything you just wrote, so if I came off as contradictory it means I wasn't clear about something. When said "government says," obviously it was a bit of hyperbole, I really meant that citizens and government agree on a set of rights, pursuant to certain goals we have as a society, and how they should be distributed. Of course there are subtleties that I tried to gloss over, such as owning a patent vs. owning an idea---I was just trying to emphasize the fact that even ownership of material property is such a right, based on agreement, and is basically already an abstract concept, and therefore consistent with other forms of ownership that may seem more abstract.


Another example is stock ownership, i.e. partial, tradeable ownership of a venture. No, you can't hold it in your hands[1], but people understand that it's property in all the relevant senses and can be meaningfully said to be "stolen" (e.g., if the votes you make with your shares are ignored).

[1] The stock certificate doesn't count; that's a representation of the property, not the property itself.


The stock certificate does count: 1) Its legal tender, 2), if you loose the certificate then you loose the property.

Its like trying to argue that money are not property, just representation of property.


Wait, what? Most exchanges and corporations don't even go by a paper certificate, proving my point: shares (and money, for that matter), are defined by a relationship, not a physical instantiation. If you lose a certificate (if they even still issue them), there are still records of how many were issued, and of when they were transfered to you. As long as that history can be reconstructed, you are still given the voting/dividend rights, and if you aren't, it's lawsuit time.

Same thing with contracts: a contract is a relationship. The signed piece of paper is not the contract, but proof that a contract exists.

It's just a case of Procrustean bedding to act like all property (or rights bundles isomorphic thereto) must be physical.


> Most exchanges and corporations don't even go by a paper certificate,

Except the ones that do. You're right; most don't by default, but if you DO have valid paper certificate, it is a bearer instrument. Who owns it, owns it.


Which is to say, that the physical piece of paper is not a defining characteristic of property in stocks (even one case would mean that paper is not inherently part of stock ownership), just as physical stuff is not necessary in many other kinds of property.


And here I thought a stock was a tiny piece of the company. And if you had all the stock, then you had all the company...

The preferred example would be futures, and oddly enough, something I also think is a scam.


It certainly is "a tiny piece of the company", at an appropriate level of abstraction. Expand it out to something more specific and you get that it's "right to cast a certain number of votes in determining who is allowed to manage (act as steward of) the company's assets and other major decisions, and to some proportion of the money paid out as dividends or when the company is bought out".

Somebody who owns their own company can be thought of as equivalently having 100% of its stock.

Don't see what's "a scam" about it, but I'd love to hear your thorough analysis on the matter.


By this reasoning, copyright infringement is not theft and should be tolerated.

Who said we didn't think of using "scrolls" or "apple" as our company name independently ?


Trademark isn't there to prevent theft of brilliant brand names; it's there to prevent confusion. That's an entirely different endeavor than either patent (protecting ideas) or copyright (protecting creative expression).


This is a lost truth on most people. If something trademarked can be used in a context that does not result in the consumer being confused, then the owner automatically loose the trademark. Its a consumer protection law, not an anti-competition law.


They don't lose their trademark, they're just not allowed to sue where the use isn't confusing.


This depends, I think. My understanding is there are some caveats when something gets really well known, sometimes for the better and sometimes for the worse. Trademark law isn't always executed perfectly (see some of the behavior of the Olympic Committee, for instance). The fundamental purpose, however, remains to avoid confusion.


No, by this reasoning, copyright infringement is not theft and should be discussed using precise and honest terminology.


you mean 'trademark'.


> Patents are there to stop people stealing a technology you invented and letting you have a fair shot at making a living from it.

Patents are quite explicitly not there to stop people "stealing a technology". You can already do this by keeping your invention secret (which many jurisdictions grant some form of protection).

The purpose of patents is to encourage inventors to publicly disclose their inventions so that others can benefit from and build on this knowledge, accelerating the rate of technological advance. In return the public grants the inventor a limited period of monopoly on the invention.

The patent system currently in place in the western world is not achieving the goals that the society has set it, mostly because patents are granted for "inventions" whose public disclosure has no value (because they're obvious or over broad). What we get instead are huge companies with massive patent arsenals stopping new companies from getting into business, patent trolls extorting money, and independent inventors whose patents are worthless since they cannot bear the cost of defending them against large companies.


I keep hearing this "purpose of patents", and while it's a common belief today, I don't know that it really fits in with what historically has been the purpose of patents. Much 19th century writing on patents and intellectual property saw them as fundamental property rights that protect the fruits of one's labor.


I wouldn't say 'much.' The issue was about as controversial then as it is now. The controversy surrounding the 'Statute of Anne' around that time (being a little loose with 'around') is particularly informative.

Regardless, American 'intellectual property' law (which is the set being applied here) exists explicitly for the public good (that is, it's written into the constitution as such). The authors thereof debated the upsides and downsides of the whole idea quite a lot too, so we have a fair bit of insight into their thought process.


It's written explicitly in the U.S. Constitution:

    To promote the Progress of Science and useful Arts,
    by securing for limited Times to Authors and Inventors the exclusive Right
    to their respective Writings and Discoveries.


American patent law is somewhat different. http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12....


Not necessarily, here's an alternate view: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062

>The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using 'privilege' as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. In the antebellum years, patents were civil rights securing important property rights -- what natural-rights-influenced politicians and jurists called 'privileges.'


So why does the constitution say they should be granted for a limited time, and for the progress of "science and the useful arts"? That doesn't sound like natural rights or a labor theory of property.


The same thought pops into my mind from time to time. Even if you take a more "common good" approach I don't think you can exclude the benefit where patents provide incentives for the actual labor. For example, in the classic case with pharmaceuticals I think it would be hard to argue that keeping the active ingredient a secret would be an alternative to patent protection. It most certainly would not since a competitor would have an insane advantage in finding the active ingredient if they could buy a sample for 10 bucks...


>And yet, the technology in question is a system that stops people from pirating their software and helps them make money. Well if you think it's so unfair, don't use the tech. Do something else. No one is forcing you to use the technology.

Bullshit. Mojang isn't using Uniloc's tech. They're writing their own tech using a bloody obvious idea.


Not to mention Uniloc doesn't even have technology. They do not create or sell software.


I was going to respond by playing devil's advocate and defending Ric and Uniloc. But a quick glance at their site proves you absolutely right. Here are some gems:

Uniloc's surprising honesty:

>And it fits our straightforward development model. Look at many ideas. Pick an outstanding one. Patent it. Commercialize it. Reap the rewards.

Uniloc's vast knowledge of technology:

>After all, Bell Labs did develop some fairly transformative technology like radio astronomy, the transistor, the laser and the UNIX programming language.


These are the same people whose patent claim addresses Mojang's well-known product Mindcraft, so a little illiteracy obviously isn't costing them much on the bottom line.


Hah. Someone who thinks UNIX is a programming language is obviously not intimately involved with building real technology.


I find it odd that lawyers, who use language to such an exacting degree they have effectively created their own dialect of English, have so much factually wrong information written on their own site.


Devil's Advocate mode

They create a market for patents which benefits everyone who invents something and patents it. If your startup has a useful patent then (even if you never use the patent) your company is made more valuable because trolls like this exist. Investors will consider how much that patent is worth on the market when valuing your company.

And how would you implement a system that prohibits patent troll behavior? Only the original inventor gets to own the patent? Only people using the technology are allowed to own the patent? Define "using." What if I invent something truly novel and would rather license it to established players instead of bringing it to market myself?


I've certainly seen the proposal raised that you should lose a patent if you don't bring it to market.


The usual counter-argument is meant to go that companies full of smart people should be able to think up clever inventions all day and sell them to people who know how to build and market them. I'm not sure it really pans out in reality, though.


Exactly, my stance on software patents is that they do not necessarily cover the coder's method, it creates an entitlement to the result. Almost every software patent I've seen doesn't mention specific code, it just covers the result. Meaning no one can ever come up with a similar system without the threat of being sued for patent infringement. So, even if someone had a better way to make a similar system, they more than likely will get sued. "I have a patent that covers software that checks licenses over a network; therefore you can never make software that checks licenses over a network without paying me money." How does that allow for someone to do "something else"?


This isn't actually true. The summary of a patent is usually very broad, but if you read the full text it is very specific as to the method being patented. Media outlets portray patents as covering an entire concept, but really they only cover a narrow implementation of a concept.


Actually, this is often quite true for software patents. For a famous example, the Amazon one-click patent.

It shouldn't be true, but it is, because patent examiners have done a very poor job screening software patents historically.


Most other crimes require intent, patent infringement does not.

This is the problem I've always had with patents, but I've never been able to articulate it before.


It's weirder than that. If the court determines that you knew about a patent and decided to violate it anyway, the penalty is considerably harsher. That means there is actually an incentive to remain as ignorant as possible about existing patents when developing new software.


Which ends up meaning that, rather than being a repository of useful inventions and techniques, the patent database ends up being a minefield -- as a software developer, for instance, you're best off avoiding looking at patents at all. (Since the ones that are old enough to have expired are now generally obvious in retrospect.)


Ack. IIRC Microsoft Research has the policy that researchers may never look at patents at all.


Not just MS research. IIRR if you had something you thought was patentable you handed it off to them, and they did the leg work so you didn't become 'tainted' by looking at patents. Very weird.


Patent infringement is a civil matter, and a variety of those don't require intent. Criminal cases are much more likely to require intent, though there are plenty that don't.


IANAL, so isn't one of the counterparts to intent in law negligence?


>> Most other crimes require intent, patent infringement does not.

Huh? Patent infringment consists of using some technique without the permission of the owner.

There's intent all over that.

Are you suggesting that folks are using techniques without the intent to use said techniques? Or that they aren't intending to use them without the permission of the owner? (Yes, you can argue that they didn't know that they needed permission but that doesn't change the fact that they intended to use them without permission.)


Of course there are folks using patented technology without permission of the owner who nevertheless did not intend to infringe a patent -- that's exactly what's happening here with Mindcraft!

For the sake of argument, imagine I can prove that I came up with an idea for something on my own. I'm completely unaware that it has previously been discovered and patented. I did not even think it was an idea that could be patented. Did I intend to infringe that patent?


That's like arguing that you thought it was legal to kill someone using radioactive isotopes and therefore you had no illegal intent. Patent infringement is defined by the corpus of protected inventions and being unaware of the locus of infringing actions is not a defence against infringement.

If you make sufficient disclosure part of the patent system then this is the only way to do things really. If you don't require it then patents are worthless for the [general populous of the] state.


It's completely different. For starters, there's the "reasonable person" test. No reasonable person is going to think that murder is legal.

Intentionally infringing a patent is punished much more harshly, and it's impossible to keep up with the millions of patents that are published, so being intentionally unaware is actually a decent legal defence.

And yes, this does mean that patents are generally pretty useless for software.


Also, I'm not a lawyer, so correct me if I'm wrong, but isn't it also patent infringement if the following happens:

A patent is filed for technique X by company A,

Company B use technique X having created it independently,

The patent is issued to Company A,

Company B is now infringing upon Company A's patent.

Company B could not possibly have committed patent infringement intentionally, because the patent they infringed didn't even exist when they went about implementing their product.


The key issue of disclosure - your 3rd step - happens at A-publication which is usually quite some time prior to the patent being granted but still can be a couple of years after the filing date. (this is the source of many of the 'I can't believe they granted this patent' articles because the A-document is printed from the submission prior to substantive examination).

I don't know about the US situation but in the UK Section 64 of the Patents Act (http://www.ipo.gov.uk/pro-types/pro-patent/p-law/p-manual/p-... and http://www.legislation.gov.uk/ukpga/1977/37/section/64) allows a person to continue activity which was started prior to the grant of a patent in secret or where sufficient preparations for that [infringing] activity were made prior to the application/grant in good faith. If the activity wasn't in secret then it forms part of the prior art and invalidates, or forces amendment of, the patent in question.

If there isn't an equivalent US clause I'd be surprised: 35 U.S.C. 273 "Defense to infringement based on earlier inventor." looks like a candidate.


Not sure in that case. If B can prove that they were using it first, then it's possibly prior art (or else obvious) and A's patent may be invalidated.


IANAL, but I believe that's only true if B was using it before A filed. The order described was "A files, B re-invents, A's patent is issued". It may have some weight in arguing that the invention was obvious, but my understanding is that this is harder than invalidating a patent based on prior art.


I intend to implement things I invented all the time (usually fairly trivial things, undeserving of patents). Many of them have probably been invented before, but because they are trivial, I am not infringing anything. If one of them happened to be slipped by the patent office, now I am infringing. Would you say that I intended to violate the patent? Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them? An argument could be made that I am negligent for not doing so - but negligence requires that the action expected be reasonable. Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unrealistic, and so it is not appropriate to call my failure to do so "negligent".

edited to fix numbers


> Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them?

Basically, yes.

> Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unrealistic, and so it is not appropriate to call my failure to do so "negligent".

Do you think that "ignorance of the law" is a reasonable excuse? I ask because there are far more laws and regulations than there are current patents....


Alone, ignorance of the law is not a good excuse. However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.


> However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.

While it may be absurd for our society to punish you in that circumstance, our society will punish you in that circumstance. In other words, "it's absurd" isn't a legal defense.

Ignorance of patents, like ignorance of law, is no defense, no matter how impractical knowledge is.


This is partly true. Ignorance of patents means getting hit with damages instead of treble damages.

It is also relevant to what shape the laws should have.


> Patent infringment consists of using some technique without the permission of the owner.

There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent.


> There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent.

Nope. There's just a more serious penalty when you continue after being informed.


Here's the section from UK law, you could look up a similar section in your jurisdiction:

when awarding damages ... take into account the following – (a) whether at the date of infringement the defendant or defender knew, or had reasonable grounds to know, that he was infringing the patent ...

(That's paragraph 62 (3)(a) from http://www.ipo.gov.uk/patentsact1977.pdf )

Seems quite clear cut.

Could you explain what you understand by "intent"? Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?


> Could you explain what you understand by "intent"?

Did you intend to use a technique? Did you intend to use it without permission. Note that the latter doesn't require knowledge that permission was required.

As to treble damages after being informed, that's an extra hammer, sort of like "you had a chance to clean up your act".

> Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?

Yes.

It's sort of like violating the law. You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.


Did you intend to use a technique?

That isn't the question I'm considering, which is where the apparent disagreement comes from. Someone can intend to use a technique, while not intending to infringe a patent. It is infringing the patent which brings legal problems.

You can be guilty of doing something with intent to do that thing even if you don't know which law is involved.

In that case, yes, you'd have intent to do that thing, but no, you would not have intent to break the law.

The extra penalty is being applied to intent to break the law, to do that you need to know about the law. From the perspective of the person breaking the law, they think they are innocent. They don't intend to be guilty. (Even if they actually are guilty.)


> Someone can intend to use a technique, while not intending to infringe a patent.

I understand where you're trying to go, but, as with the criminal law situation, you're trying to reward ignorance.


The argument is that the hapless patent infringer doesn't intend to use a technique without the required permissions. I tie my shoes without permission regularly, but I never intend to tie them without a required permission.


Patent infringement isn't criminal. There are plenty of civil causes of action that don't require intent.


Where is the expert? Ric Richardson is not an attorney, let alone a patent attorney. Ric's comments are uninformed, and probably not worth responding to.

[ http://ricrichardson.blogspot.co.uk/p/about-ric.html ]


The article on which Mr. Richardson is commenting also confuses copyright and trademark law.


I wonder when he's going to go after Microsoft for patent infringement: http://www.google.com/patents?id=K7MoAAAAEBAJ&dq=uniloc+...


He already did back in the 90s.


I met Ric Richardson sometime late last year. He claimed to have just invented a "fibre optic CPU" the week before. He also boasted about how at a dinner party he had taken a guest's idea and filed a provisional patent for it in 30 minutes.

He made a room full of young entrepreneurs with unique ideas feel very nervous. He feeds on innovation.


I keep on hearing about the Eastern Texas courts that are consistently plaintiff friendly. Just seems messed up that you could sue someone wherever it's most convenient for you.


This American Life did a show recently (in the past year) about patent trolls (focusing on Intellectual Ventures):

http://www.thisamericanlife.org/radio-archives/episode/441/w...

Their explanation of the venue choice was that the other federal courts were choked with drug-related cases and going to East Texas was a way to get a speedier trial.


Thanks for mentioning this! I'll take a look when I have some time.


Defendant can ask for a chance of venue. Plaintiffs used to join many defendants into a single lawsuit, partly in the hope that this would make it less likely that a defendant would be able to get a change of venue, because one case with multiple defendants is a more efficient use of limited judicial resources than several different cases and so the courts would be reluctant to let a defendant move just their case to somewhere else.

The America Invents Act changed this. Now the plaintiff cannot join unrelated defendants in one lawsuit, and so defendants have a much better chance of getting the case moved out of EDT. In face, since that provision of AIA went into effect, more patent cases have been filed in Delaware than EDT.

EDT actually is not particularly plaintiff friendly when it comes to results. There are several other districts where plaintiffs have a higher winning percentage than EDT. Last time I saw stats, a couple years ago, EDT wasn't even in the top 5.

The big attraction of EDT was/is:

1. The judges there are very familiar with patent law and patent litigation. Patent litigation is among the most complicated litigation, and whether you are a plaintiff or a defendant you want a judge who has experience with it.

2. There isn't a lot of Federal crime in EDT. Criminal cases have priority over civil cases, and in districts with a lot of Federal crime civil cases can suffer great delays. Try to litigate a patent case in a district where the courts are clogged with criminal cases (hello, war on drugs!) and you could be in litigation for a decade or more. Neither plaintiff nor defendant generally wants that.


If it makes you feel better, my understanding is that most of the big patent trolls now have "offices" in Eastern Texas to make the choice of venue more difficult to argue against.


> In fact, you can break this law without even knowing that someone else thought of the idea first.

This is the biggest flaw with the current patent system. The reality is if an invention falls into this category, it should not be patentable. Raising the barrier of "obviousness" to a level requiring an invention be transformative to the point that, within the term of the patent, the likelihood that anyone else independently invents the same thing is sufficiently small would go a long way to addressing these problems.


>within the term of the patent, the likelihood that anyone else independently invents the same thing is sufficiently small //

The problem then is that there is little to no incentive for the applicant to share the idea. If it's something no one will come up with, then you can keep it secret and benefit from an indefinitely extended monopoly.

The quid pro quo of patents is early information about new inventions in exchange for limited time monopoly. Here you're encouraging inventors/companies to prefer industrial secrets.

If inventions meet your requirements but are kept secret then the public domain will be worse off as no one gets the benefit of being able to privately use/research the invention unless it can be replicated. With a patent the full details are disclosed.

Obviousness is very difficult to assess because some things that took many years developing are so ingenious that they seem obvious. The applicant always has the argument - if it were so obvious how come, in such a well worked field, with such demand for this invention, how come it wasn't already developed? The answer of course is that it wasn't "obvious" [to the skilled practitioner with knowledge of the prior art in the relevant domain].


Ok, but what percentage of software patents are going to be useful in 20 years when they go into the public domain anyway? Doesn't seem like there's a lot of society downside to just keeping them secret vs open but unable to use until 2032.


We don't have software patents (per se) [!!] in Europe.

But anyway ... if it's not useful it doesn't matter that it's patented and if it is then you've got full disclosure. So I'm not sure the percentage is really important. Perhaps the fees should increase at a greater rate to encourage early release of patented inventions that aren't high worth.

Personally I'd limit the term to about 8 years for all patents and dispense with US business method and pure software patents.


It seems odd that the patent system does not take into account whether an invention could be nearly as profitable as a trade secret or on the other hand, could not possibly be kept secret while used for profit.


Any good examples?

I'm having trouble thinking of something that:

1) You can benefit more from as an industrial secret than as a patented invention.

2) Society is harmed by the lack of public disclosure.


Imagine a manufacturing process, and a transformative invention that makes the product 10 or 100 times cheaper to make than any method that does not use the invention. The invention is used in-house, and there is no advantage to be gained from licencing the invention. Distributing the process to be closer to raw materials or customers conveys no advantage over centralized production. Given such a situation, the company with the invention is likely to bet they can keep it secret longer than the term of a patent.

Of course I cannot give any specific examples. They are currently secrets, or they are secrets that died with the company or died with the obsolescence of the product.


There needs to be a website or something to shame known patent and trolls AND THEIR ATTORNEYS.


Sounds like a great way to get sued by very litigious companies if you aren't nuanced in your approach.


Someone please do this! ShowHN: Shamr!


> Shamr.io


Seems like something Popehat could take a stab at.


What would you expect from someone who thinks that nothing more than the idea of registering a demo constitutes "technology"?


I expect them to have a successful career in the Patent Office.

(Sorry about the "cheap shot"... I realize that the problems are with the laws, not the patent examiners. But humor is the only way I can approach this subject without tears.)


What I don't get, and I hope somebody can enlighten me here is this: Isn't Mojang a swedish company, registered in Sweden? How can the US patent law apply to Sweden since Sweden has a different patent law?

For example, I have my company in Germany, where it's (almost) impossible to get a patent for software patents. So if a greedy patent troll in Texas decides that one of my apps infringes their patents, can they even sue since my company is obviously in Germany? Or can they only stop me from selling in the US? (which would be a huge drawback, of course).

How is such a situation handled?


If you're selling to the US (as Mojang is), then you can be bought to trial there.


What would be the worst that could happen then if I'd just ignore it and decide to never visit the US again nor sell anything to the US again?


That's a very good question - and as all good questions it's difficult to answer: it depends. :)

There was recently a case where Håkan Lans argued he should not have to pay Acer after having lost a patent suit in Washington, because he is a Swedish citizen and the american verdict was according to him unjust. He first lost, but appealed and won in the appellate court (Hovrätten) [1]. The court argued that since there was no contract between the parties governing jurisdiction the foreign court decision could not be used in a Swedish court as proof of debt. Therefore Acer would have to sue Håkan Lans in Sweden, and have a Swedish court rule on the merits of the case, if they wanted the aid of Swedish authorities in collecting damages.

[1] http://www.nyteknik.se/nyheter/it_telekom/datorer/article250...


Thanks for the info. Will do some research then and just hope that I'll never be targeted by a patent troll.


He could get locked out of using any U.S.-based payment processors on his website.


Foreign companies/persons can get Swedish patent protection, eg by application to WIPO using their original patent in the US as a priority document.


Firstly.. I doubt anyone saw "Scrolls" and thought "The Elder Scrolls". Hell, when I think "Skyrim" I don't think "The Elder Scrolls."

Patents should protect against idea theft.

I would like Patents to be like math. If you show all your working out you are mostly fine. This way, if you are taken to court you have documentation which shows each step of development that got you from A to B. This would include missteps etc.

This would allow two people who have the same idea to not be infringing a patent.

It would still be for the judge to interpret. It may be the case that person B started work on their product after the release of person A's work. There work may be dubious.

At least this would allow someone to create a similar product via their own initiative without being in breach of patent they were unaware of.


> Most other crimes require intent, patent infringement does not.

Patent infringement isn't a crime. Most (although not all) crimes do require some level of intent. But patent infringement is like any number of other civil causes of action in not requiring intent.


Notch knocking down a strawman frontpages on HN.


This isn't even close to being a strawman. The argument put forward by Ric Richardson, Inventor is a bad one but that doesn't mean he intended it to be. On the contrary, Ric Richardson, Inventor intended it to justify predatory action against a real inventor and belittle anyone who has a problem with that.

It gets my goat to hear people like this talk about others "stealing" technology they "invented". What these parasites invent is paperwork, the purpose of which is legalized extortion from people who really do invent things. They brazenly label themselves The Innovators to win the sympathy of a public (especially legislators and juries) who don't know enough to tell that they are frauds.


It's one thing to set up your own straw man and then knock him down, it's quite another when your enemy is actually made of straw.


It does seems a bit ironic that we have a link to PG's original article on the front page, which talks about how to keep fluff pieces off the front page, at the same time as this piece from notch.


"Strawman" means to make up a silly opposing position and then attack it, rather than attacking your actual opponent. It does not apply when your actual opponent is silly.


Internet expert != expert


"Internet expert" == ! expert


"==!" === "Bad Javascript idiom you won't find in many other languages."


> Bad Javascript idiom you won't find in many other languages.

It's not an idiom, and identity tests exist in other languages. You may know them as "==" (Java), "is" (Python), "eq?" (Scheme) or "object.ReferenceEquals" (C#).

Now the syntax is ugly and this does not excuse the fucked up non-overridable equality, but aside from that `===` works pretty well in Javascript.

As opposed to PHP, which famously did manage to even fail implementing identity correctly[0].

It also has nothing to do with the comment you replied to, which uses `== !` (to operators, an equality to a negated operand)

[0] http://developers.slashdot.org/comments.pl?sid=204433&ci...


This is irrelevant, but it blows my mind that "[1] == [1]" returns False in JS.


I'm "ok" with that, it's a property of non-overridable equality tests, where arrays are "standard objects" (with natively implemented lots of things, but still objects) rather than built-in magical special cases of the language (although there are still things done by arrays I don't think you can do without recent extensions to the spec, such as

    js> var a = []
    js> a[42] = 3
    3
    js> a.length
    43
) as opposed to e.g. Go where a few blessed types have access to features Go users do not have any possible access to.

It bothers me significantly more that

    [1] == 1
does not return false in JS. Although the rules through which this is reached are clear.


"==!" === "x == !y" which you find in most languages.


Hmm, I parsed that C style as: "internet experts" == not experts

Notice the space between the last = and the !


Refactored for rapind's benefit:

  "Internet expert" == (! expert)
;)




Applications are open for YC Summer 2019

Guidelines | FAQ | Support | API | Security | Lists | Bookmarklet | Legal | Apply to YC | Contact

Search: