White House: What's Blocking Innovation in America? My Answer: IP Laws
groklaw.net
groklaw.net
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.
These laws are so built into the fabric of the startup
world that we normally just take them for granted.
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
Startups depend heavily on IP laws.
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
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.
'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.
Conclusion: most YC companies are significantly dependent on IP laws to operate.
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.
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.
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?
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.
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."
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.
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.
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.
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?
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?
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.
Could it use reform? Heck yeah. But your view is no better than the supposed lawyers you hate against.
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.
Nonetheless, I am experimenting to see if it is true. It's only one sample. So far, I am not suffering any ill effects.
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.
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.
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.
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".
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.
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.
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.
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...
[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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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 :-)
http://www.thefreemanonline.org/featured/do-patents-encourag...
> 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.
>> I don't see any evidence that the US is failing to innovate . . . We're discussing how innovation can happen more efficiently.
The article is spot on: legal protection is protection from innovation.
Well worth reading, and comes under a creative commons licence.
Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354849
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.
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.
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.
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.
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.
Back to my original point: if the US software patent system is so broken, how come America is #1 in software innovation?
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.
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."
> 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."
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?
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?
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.
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.
If an idea can't work in practice then doesn't that make it a bad idea regardless of how pretty it is?
The patent system should be adjusted, but not thrown out with the bath water.
They've also made it available online, of course. http://www.dklevine.com/general/intellectual/against.htm
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.
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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) => ...
"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."
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.)
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...
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.
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 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.
Out of curiosity, what industry/market was this? How big was the company? Have any idea how much the lawsuit cost?
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.
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.
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.
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.
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.
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.
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 sorry you feel so constrained. To me that signals the current system is not optimum, but that's probably a lucrative decision either way.
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.
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.
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.
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.
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.
Apparently not random enough!
They essentially used this algorithm for their key material: http://xkcd.com/221/
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.
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.
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.
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.
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.
With that said, he'll never go for this and neither would the legislature, so... not getting my hopes up.
Do you consider Google Books, JSTOR, Wikipedia, etc. to be entertainment content startups?
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?
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.
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 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.
That's different from the "pillage and plunder" model you are promoting in your response.
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?
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.
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.
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.
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.
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."
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.
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."
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.
http://www.justice.gov/criminal/cybercrime/18usc2319.htm
I don't believe there's anything like this for patent or trademark infringement, though.
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.
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.
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.
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.
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.
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.
http://levine.sscnet.ucla.edu/general/intellectual/againstne...
Keep in mind that China can turn out a new model of cell phone in a few weeks at this point.
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 ...
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.
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.
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.)
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.
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).
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.
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.
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.
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.