Judge throws out entire Apple/Motorola case
arstechnica.com
arstechnica.com
Tech people I know generally agree that patents and copyright stifle innovation. They may once have helped, but no longer.
Business people I know believe patents help create entrepreneurship. They think about it from a founder's perspective (they haven't founded companies themselves) and think patents would help that person establish a foothold against incumbents. They ask, "Without patent protection, how can someone get paid for their creation?"
As I see it, the business people don't have relevant experience. They're talking about a myth that doesn't exist anymore if it ever did. People who innovate and create have relevant experience and know how patents and copyright are used in practice.
At least this judge understands too. I hope his acts catch on.
The more relevant question seems "Without patent protection, how can patent lawyers get paid?" because patent lawyers is what the system creates, at the expense of technological innovation, as I see it anyway.
How do copyrights stifle innovation?
Now I don't know exactly how much the Apotheosis version adds to the body of culture. Most new music is crap, after all. But it does represent artistic innovation, and it was definitely stifled.
What you have in those stories are cases of valuable enterprises that usually benefited in no way from the disclosures in the original patent; the patentholder and the "violator" are usually standing on the shoulders of the exact same giant.
So, what's the equivalent scenario for copyright? The a band called Apotheosis couldn't do a remix of O Fortuna? One supposes there's a valid case to be made that we're all somewhat worse off for not having access to that remix... but it's hard to put it on the same plane as a startup being sued out of existence because something they designed and implemented was inherently fenced off by a patent monopoly.
So what's the better example?
Of course, that's more to do with it not being FOSS than just being copyrighted.
As far as stifling innovation, one only needs to look at the recording companies. The resistance to new technologies, easier ways of accessing "content" - that's definitely restricted by the application of copyright laws. One recent example is Zediva. Copyright then ends up concentrating on a few companies that were able to make deals, rather than ones that are continually innovating in technology. Look at how long it took to get "legal" access to The Beatles music as MP3s.
I don't think you can see copyright as not stifling innovation in those areas.
But, I suppose, we could argue that it's just the horrible overapplication of copyright laws that are stifling innovation. A weaker copyright system would probably work out just fine.
But that doesn't mean copyrights don't stifle cultural innovation. It's just that most people don't care as much about the cultural stuff. O Fortuna is a particularly good example because the words to which Orff set his music were in the public domain, having been written centuries ago. His work could not have been created if the poem was still under copyright.
Consider cross-pollination. Nintendo wanted incidental background music for tetris. They found some tunes in the public domain, and wrote some themselves. Only possible when there's a public domain. The game isn't about the music, but the fact that they could mix good music in made it better.
Closed-software cannot be used as a basis for innovation and improvement by people who could innovate and improve it, if given the chance.
I believe that patents, as presently construed, do. It's not the concept, but the process that's the issue. Terms are too long, they have no requirement of actually bringing a patented idea to market, and they are transferable. It's the last one that is a huge problem to me.
We've turned patents into a tradable commodity that often have a lot more value as weapons than as mechanisms to defend an idea in the marketplace. The insane length of the protection only serves to make them more dangerous.
I support patent reform that addresses these issues, not the abolition of patents entirely.
What patents do is to boost the value of ideas relative to execution. They are supposed to help individuals with great ideas but without access to the resources required to execute on them.
For patents to make sense, there has to be a very large gap between the capital required to work on the idea itself and the capital required to bring it to market. Something like building a factory or conducting 10 years worth of clinical studies. Something that enables a big encumbant to copy an idea and win every time against the original innovator.
I don't think that is generally the case in the software space. It is certainly more true for enterprise stuff that you need sales people for and that's why MBA types may think more favorably about software patents. But even for that kind of software, the gap isn't nearly as large as for inventing a new type of nuclear reactor or jet engine or cancer drug.
Another problem with patents is that they are supposed to make people publish their research instead of keeping it secret, but many small companies and individuals cannot afford to go through the patenting process.
I can say for myself that I do not publish my research nor do I open source it. Secrecy is the cheapest option to have a head start with exactly the kind of ideas that might really benefit from patents. Ideas that you don't think someone else could have tomorrow by accident or by gradually expanding on existing ideas.
If I can manage to copy your idea and give it a better UX, more reliability, better prices, etc. and consumers choose me instead, should you really be able to stop me?
The problem with you copying my invention is that you didn't share my research costs, so you could easily beat me on price. But as they are software solutions, I can bring them to market myself without much difficulty. I can hire or partner with the best UX designers and marketing people and I'm protected by copyright.
I wouldn't want to stop you from working out similar ideas and compete with me, nor would I want to become a law firm spending my time in court with people who had similar ideas. Patents are a danger and I don't need their protection because software ideas are either trivial and shouldn't be protected or they are complex and don't need protection beyond copyright and contract law.
I think the issue is that your patent wouldn't cover your algorithm, it would cover "service which translates audio into text."
the only interesting question is whether they stifle it in a useful way, or a harmful way.
Do you not know any "tech people" who are fond of the GPL? It relies on copyright to function. The same goes for enforcing the attribution requirement with Creative Commons.
There are a lot of things I would like to see changed in both copyright and patent law. I am a proponent of a "thin copyright" similar to that proposed by Siva Vaidyanathan, and I believe that software patents do not fit into the current system at all. I think eliminating the legal recognition of intellectual property entirely, however, would be throwing the baby out with the bathwater.
I'd prefer if for software, the only possibility was something similar to GPL v3+. Meaning: instead of copyright as it is known know, the law contains the terms of the GPL. So for any software you must be able to request the source code in a usable form.
Currently, copyright allows software to be released in a restricting (binary) form. As a result, the client always has to rely on the software vendor.
I rather have more competition in that. When software is created, I think there should still be a few possibilities. I think it is good if a company can still charge for software per copy (have to make money; support isn't everything). So for each software it should be possible to restricts its distribution (like copyright atm). However, a client should be able to hire another company and make their own modifications to that software (in some cases you just have to keep the changes to yourself).
At the moment any software basically results in a monopoly. Especially within bigger companies (loads of software which source might not be available anymore, etc).
GPL is often seen as communism. But IMO the current situation doesn't allow for much competition. Law should be always adjusted to ensure (healthy) competition can take place.
To be clear: I am not advocating that every software company should work like the current free software/open source software companies. Read by post again if you thought that.
In actual practice, it does the opposite of normal copyright. Copyright is usually used to restrict access to some work. A public domain work can be accessed to anyone, but, as it evolves, future contributors can restrict access to it. A GPL work remains accessible to everyone in perpetuity, not just from a legal standpoint but also from a practical standpoint (no need to reverse engineer or disassemble). Not only are you allowed to use the work, but also nobody is allowed to stop you from using it in any form. It really is on the opposite side of the spectrum from normal copyright (we can imagine public domain to be the midpoint).
In the FSF's perfect world, the GPL would not be necessary. Instead, you would be able to access and modify all your software without restriction. The GPL is just a clever way of creating and enforcing such a world without changing existing legislature.
Also, "intellectual property" is an unfortunate and rather loaded term. For one, it covers several distinct concepts like copyright, patents and trademarks which all behave differently and have different ramifications. Secondly, it presents a false parallel to real property. Whatever you think of Stallman's ideology, you have to admit he is a good writer (certainly infinitely better than I am) and very clear; here is his case against the term "intellectual property": http://www.gnu.org/philosophy/not-ipr.html
A final note: while the general software community is divided on patents and copyright, I don't think most people are against trademark law. If anything, trademark law is about fraud--you're not allowed to lie to customers about being affiliated with a known, existing brand. I suspect most people arguing for copyright and patent reform are fundamentally fine with trademark law as is, or want minor changes to it at most.
There is one part of copyright that might run counter to the GPL, however, and that is the right of an author to reclaim copyright after 35 years. If the right applies (i.e. not a work legally classed as work for hire) it cannot be revoked, even by the author, until the 35 year term is nearly over. This right is generally a good thing, but might be a bit messy or disruptive if someone who wrote old UNIX IP decides to try to reclaim their work.
Unfortunate or not, intellectual property is a term of art at this point. However, connotation can differ from denotation, and it often does in law.
I think the view you're talking about is really only prevalent in internet startups and the like.
Imagine if a right-wing Christian judge tosses out anti-creationism lawsuits, or pro-RIAA judges toss out anti-RIAA lawsuits. Even worse, imagine a judge indirectly on the RIAA payroll! Granted, these are all a long ways away from this case, but I believe that applauding this judge's actions is the wrong reaction.
Your view is what: that we don't want judges doing the right thing because the legal systems is somehow karmicly bound to follow it with a bad decision in some other case?
To hell with that. Posner is a hero right now. I say we celebrate.
If there are bad laws on the books that are only sporadically enforced, then people are being denied the very fundamental right of equal protection. That's never good in the long run.
That is to be upheld too. There are bad cases that try to use bad laws, this was the one. You seem to be on the other side of this but that doesn't make it so that there was any 'rewriting' done by this judge. He upheld the law as in, sides were not allowed to give proof of infringement based on their own 'specialists'. Because that can turn the court to a circus as is always the case when people end up comparing rectangular shaped objects. This set the tone for the conclusion in a massive patent troll case. This may happen more and more from now on and it will bring needed change.
The current state of the patent system is at odds with the intent of patents as vaguely defined in the Constitution and clearly fair game for extensive judicial review.
Oracle had it easier because there were willing to license the patents and copyrights at issue (and Sun had even talked to Google about this). That made the lost licensing revenue a helpful data point with respect to damages, but with or without that there was a hurdle Oracle dealt with that Apple/Motorola didn't (based on Judge Posner's ruling).
edit: added the "to the industry" part.
What I am wondering is - does this lead to the entire patent industry coming crumbling down? I am expecting that part might not be likely, but I am trying to figure out what part is to be expected.
- the moral of the story is steal and get the stolen goods into as many 3rd party hands as possible, so that by taking it away from would cause chaos and outrage. "Don't be evil"? That's criminal and evil at perfection.
This is about consumer choice: Motorola clearly does not have any device which effectively competes with the iPhone. Further, allowing Motorola to pick and choose who it competes against (remember, they are arguing that, as the holder of a patent required to implement a standards-compliant device, they get to play gatekeeper for the mobile phone market) is plainly against the interests of the consumer.
It might not hurt to give scanning the opinion a try. Call me crazy, but I enjoy reading these things.