IP: Real or Bogus?

There’s been some talk among the sciencebloggers about the idea of intellectual property, and Bora over at “A Blog Around the Clock” asked me to convert
my thoughts into a post. It’s a serious topic, which is worth giving some deep consideration, and it’s
something that I’ve given a lot of thought to. Back when I was at IBM, I worked on some projects that were
internal and confidential, and also spent several years working on open-source. I’ve got two software
patents to my name. I didn’t do any of that lightly; I spent a lot of time thinking through the morality
of what I was doing, and I’ve been careful to stick with what I think is right.

I’ve got some good friends who believe whole-heartedly that the entire
idea of “intellectual property” is nonsense, and that copyrights (much less patents) should not exist at
all. I can’t agree with that, not on any level. The short version of my disagreement is that the most
basic idea of property is that when I produce value, the value produced is mine. If I take wood, and I do
the work of turning it into a chair, it’s my chair, and my work created a valuable artifact. That artifact, the product of my work, is mine, and I can use it or sell it as I desire. I don’t think that
the fact that a work in intangible changes the essential nature of that: if I write a book, then
my work has created something of value, and it’s up to me to decide whether to keep it, or sell it,
or give it away.

When you get into discussions of this, one of the things that frequently comes up is the idea that
“intellectual property” is a meaningless or misleading term. I’ll refer to this below as the linguistic
problem with IP. I’ll dispense with this quickly: under the law, intellectual property represents
several very different things: copyright, patent, trademark. The linguisting argument is that because each
of those three is very different from the others, muddling them together under a single term is
misleading. In fact, some people, like Richard Stallman, go so far as to say the the term is part of a
scheme perpetrated by the companies that benefit from IP law to advance their own agendas.

I think that’s a pile of rubbish. All of the kinds of IP are, essentially, the same thing: they are
all forms of intangible products of human work that have some kind of value. To me, that’s the really
essential thing. We’re talking about things that are the result of real, value-producing work by a
creative person. They’re covered by different kinds of laws depending on exactly what kind of
value they have. But they’re the same essential concept. A copyright protects something where the
intangible itself is the value: a book, an image, a melody. A patent protects something where the
intangible is a description or means of producing a tangible item: a new way of making an engine. In the
case of copyright, what the law protects is the value to the creator of the intangible itself: if you want
a copy of my book, you need to pay me for it. In the case of patent, what the law protects is the ability
of the creator to use his or her idea to create items that they can then sell: I designed a new type of
engine, so I should have the opportunity to produce it and get it onto the market before anyone else.

In tangible property, I can own objects – books, cars. I can own places – homes, land. I can
own businesses or parts of businesses. They’re all different kinds of property, and different kinds of ownership. But we group them all together under the banner of property – because, ultimately, they’re
all tradeable things with value. They’re covered by very different kinds of laws – just look at the difference between the laws about home ownership versus the laws about vehicle ownership. I don’t see why the fact that we group together the different kinds of tangible property under the banner of “property” is reasonable and appropriate, but the way that we group together the different kinds of intangible possessions as “intellectual property” is deceptive and illegitimate.

Moving on, there’s also a lot of people who believe that the entire idea of intellectual property is,
itself, invalid immoral.

This I disagree with even more strongly than the linguistic argument. I think that it’s a case of
“throwing the baby out with the bathwater”. There are a lot of sleazy big businesses, and it’s absolutely
true that they’re using their influence over the legal system to game it to their advantage. And it’s also
absolutely true that they’re doing a lot of harm by abusing IP law to do awful things. But As much as I
hate the various media companies, and deplore the way they abuse copyrights to cause trouble, I don’t
think it changes the essential point. There’s a huge distance between “a bunch of big businesses have
found a way to exploit a notion of property to screw people over” and “no such notion of property should
exist”.

Big business and big money can always find ways to game the system and exploit it to their benefit.
The fact that some asshole with a wad of cash can find a way to use the law in an evil way doesn’t make
the law itself evil. Credit card companies got the government to rewrite bankruptcy laws in a way that
makes it easier for them to screw the non-rich over, while making sure that the rich were well protected.
That doesn’t make bankruptcy an invalid idea: it makes it another case of assholes exploiting the system. I don’t see IP as being all that different. There’s something legitimate in protecting the value of
the things that people create with their work, whether it’s tangible or intangible.

To me, when I look at the argument against intellectual property – and in particular about copyright,
I find that it leads to the thoroughly bizarre idea that the only work that has any real value is work
that directly alters the physical raw materials that go into a product. When you do work that directly
modifies raw materials, then you’re doing something valuable. When you do work that doesn’t directly
modify raw materials, then your work is fundamentally worthless. If you can design a new kind of engine,
then you haven’t done anything valuable. If you make the engine out of metal, then you’ve done
something valuable.

When you buy a book, you’re not buying a pile of paper that incidentally has words on it. You’re
buying it for what’s inside of it. And what’s inside of it is work, done by another person. Just because
it’s work that a million people can all enjoy doesn’t make it any less work. Just because it’s easier to
copy than a sculpture doesn’t mean that it’s not work, or that it’s any less valuable. What is valuable is
the words, and the ideas in the work. It doesn’t matter whether the words are printed on
paper with ink, displayed on the screen of a computer, read aloud and recorded, or some other form that
hasn’t yet been imagined. There’s a value in the creation of a book, but the value isn’t in the form
of anything tangible.

If intellectual property isn’t property, then you’re saying that it’s only the tangibles that are
really valuable. That means that if I publish a book, and I say you can’t have it unless you pay me $50,
that’s fair, because I’m giving you something physical. If you take copies of the book without paying me
for them, then you’ve committed a crime by stealing. If you don’t take copies, but you burn copies that
you didn’t buy, then you’ve committed a crime by destroying my property. Even if you don’t steal or
destroy the books, but you physically block my warehouse so that I can’t ship books to buyers, you’ve
still committed a crime, by obstruction of commerce. But if you copy my book, and then sell those
copies, then there’s no crime: because you’re still delivering the tangible product; you’re purchasing the
tangible goods from which the copies will be produced, and you’re paying the cost of producing the copies.
If the intangible material – the words on those pages, isn’t property then you’re not doing anything wrong.

I think that’s crazy. It’s my work. I should have the right to decide what gets done with it, and on
what terms. The value isn’t tangible – but it’s still value. The property isn’t physical, but it’s still mine. I created it.

To be sure, there’s a huge problem with IP right now. It’s not that the idea of intellectual property
is flawed in itself. The idea is sound. It’s more than sound – it’s absolutely essential. The
execution is the problem. And the problem with the execution is the same as the problem with all sorts of
laws in our society.

The problem is that we’re living in a society with large, powerful corporations which
have learned to exploit the law. It’s not just intellectual property that’s been screwed up. We can see
the same thing in things like bankruptcy law, tax law, and so on. Large businesses with lots of power and
lots of money can influence laws to work in their benefit, to the detriment of society. Intellectual
property is nothing special in that regard.

I don’t think that the legal protection of intellectual property rights should be exactly the same as
the legal protections over various kinds of tangible property – just like I don’t argue that property
rights over a piece of land should have exactly the same kinds of legal protections as property rights
over a piece of jewelry. We do distinguish different kinds of property, and the different kinds of
legal protections we give to them. IP should be governed by different laws, because it’s a different kind of property.

When it comes to the laws governing IP, that’s where I turn into an anti-IP zealot. The current legal regime of IP law is a monstrosity. The point of IP law is to allow creators to benefit from their creations, while also benefiting the community. But that’s not how it works, now. Now, the creators
don’t benefit: in fact, the law works to stifle creators and prevent them from benefitting from their work. The community doesn’t benefit. The only ones who benefit are the corporations, and the congress-critters who take their bribes.

So what would I do? How do I think that IP law should work?

Trademarks: Trademarks work fine. I’d leave them alone.

Copyright: When copyrights last the life of the creator plus 90 years, it’s not benefiting the creator; the creator is long dead. It’s certainly not benefiting the community: it means that
virtually all creative works will be lost before they can revert to the public domain. The current situation is awful for creators, and awful for the community. Copyrights should be for a reasonable term: long enough for the creators to benefit, but short enough that things do revert to the public domain before they’re lost. I’ve heard proposals for various terms; something like 10 year terms with two renewals (for a maximum total of 30 years for an actively protected copyright) seems reasonable; as much as 50 would still be workable. The key is that the default term be reasonably short, but
extendable for a reasonable period of time if and only if the owner of the copyright takes a
deliberate action to extend it. That guarantees that creators have the opportunity to benefit,
and works aren’t lost.

Patents: Patents are a similar situation: the current patent law allows ridiculous, trivial
things to be patented. It also makes the patents last for a ridiculously long time. The point of a patent
is to allow an inventor to share information about their invention with the public without losing the
ability to be the first to benefit from the invention. That means that it needs to last long enough to
give the creator a chance to do something with it, but not so long that it prevents further progress.
Instead, it’s turned into a monstrosity that makes it damned near impossible for an actual inventor to do
anything without getting squashed by a large company; and it makes the protection last far longer
than is needed to protect the inventor. Back when the law was created, 14 years of protection may have
been reasonable. Now, for many of the fields covered by patents, it’s insane. Patents should last long
enough for the inventor to get their idea to market, but not much longer than that. They should be
dependent on the nature of the invention.

A piece of software that gets to the market three months after the patent is filed, and which is
hopelessly obsolete in 5 years shouldn’t be getting more than 10 years of patent protection. A new kind of
electrical generator that takes special tooling to produce, so that it takes a decade to tool up and get
production going should get the 10-15 years that is needed for the inventor. The term should be
determined by when the inventor starts to profit from the invention. The patent should
last for a maximum period, and that period should be terminated when either the inventor stops
trying to develop their invention, or when they’ve reached the point of profiting from it before the term
has expired.

But more important than term, what is patentable should change. The current system actively
encourages the filing of trivial patents. The standards of what is patentable need to be changed
dramatically. A patent should only protect something significant that the inventor couldn’t benefit from if information about it was divulged before they brought it to market, and
the protection should end when that happens. Trivial patents should never be granted; and it should be easier to overturn patents if legitimate prior art can be demonstrated.

0 thoughts on “IP: Real or Bogus?

  1. Andrew Weinrich

    Great post, Mark. I recently had to choose an open source license for some software I released, and it brought up the same considerations.
    For me, the best argument for limited intellectual property is on purely pragmatic grounds: perpetual copyrights/patents harm the public interest, but no IP protection removes the incentive to invent. This is the view written explicitly into the US Constitution: “To Promote the Progress of Science and useful Arts, by securing for limited times…”. The basis of USA IP law may not be philosophically coherent, but it’s useful, and in this case I think a pragmatic approach is appropriate.
    The question, then, is what “limited” means, and how much it will “Promote the Progress”. This is the part that is currently completely out of whack; unfortunately, I think it would take a major readjustment of American culture and politics to fix this problem. The bright side is that many other problems would be fixed at the same time, but that only makes it less likely.
    Stallman’s point of view – that only physical property matters, and that if you “steal” intellectual property from me, it’s not really theft, because I haven’t “lost” anything, and that’s the only loss that warrants government intervention – is probably more consistent. But it has the same drawbacks that Locke’s idea of property did: it ignores laborers, that is, everyone except farmers and toolmakers. Those are small groups these days, and Locke’s philosophy of property had run its course by the 19th century, so the hardcore GNU crowd hanging onto it is unfortunate.
    However, this idea seems like trouble:

    The term [of the patent] should be determined by when the inventor starts to profit from the invention

    It makes a lot of sense, but I don’t think it would work in practice. If the term of the patent is based on how long it takes to become profitable, it’s an invitation to inventors to find the most advantageous classification possible, or to cook their books to delay “profit” as long as they can.
    As far as software patents: I agree that Amazon owning One-Click© purchasing until 2012 is crazy; but I would suggest that the solution is to abolish software patents entirely. Source code is already protected by copyright and trade secrets; superficial appearance is protected by trademarks. If you come up with an idea that is so obvious (like Single Primary Mouse-Button Buying) that it could be trivially re-implemented, it doesn’t deserve government protection.

    Reply
  2. Janne

    I don’t want to abolish IP either. But analogies with physical objects aren’t helpful. If you make a chair, it’s yours. If you then sell me that chair, it’s mine. You’re not transmitting a licence to use the chair, you’re transmitting ownership of it. You no longer have a say in what I do with that chair.
    IP doesn’t really work that way. Do note that even with no IP laws at all, what you have is the closest analogue to physical things: If you write a book, it’s yours. And as long as you don’t sell it to anyone, nobody can copy it or make use of it in any way. But absent IP laws, when you sell a copy you relinquish control over that copy, including being copied in turn, redistributed and so on.
    What IP laws are all about is restricting the rights of the recipient as compared to physical objects; indeed, both copyright and patents are at heart time-limited exemptions to the normal case, in exchange for relinquishing any ownership at the end of the term (and this is why the eternal lengthening of copyright terms is so offensive – the time-limited exemption becomes the new normal, and the payment in turn is effectively waived). The debate is really about what restrictions are acceptable, with, arguably, the restrictions having gone rather too far in some respects lately. But saying “IP is property” really means abolishing most IP restrictions, not strengthening them.

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  3. Ed

    You raise a good point about the purpose of patents being to share information while allowing the inventor to profit. “Share” is a key word there, but currently many patents are purposely obfuscated, and some technical writers even brag about their ability to do this. If patents work, why do companies feel the need to hide the actual substance of their patent? What needs to change?

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  4. Jonathan Vos Post

    Well said.
    However, I agree with much of what you say AND I agree with much of what Richard Stallman says.
    Having done over $100,000 of consulting to Patent Law firms, and assisted on several patent filings, I feel that I know a little about that form of IP.
    Having had training by National Writers Union on some Copyright matters, following the issue as wrestled-with by Writers Guild of America, Mystery Writers of America and other writers groups, and having been involved in writing, editing, publishing, and agenting (as one of 10 in my family who have done so), I feel that I know a little about that form of IP. Copyright versus Open Source applied to software — too strange and arcane for me to get into right now.
    I know the least about Trademark, but have done some work through a Beverly Hills law firm on the trademark for “livecam.”
    The real world is monstrously more complicated than you say. Of course, much compression and oversimplification is necessary for a blog thread. Also, all these forms of IP differ from country to country, are changing rapidly in the USA, and the U.S. Supreme Court seems interested in this last point (which frankly worries me).
    Of course, when my son gets his JD from USC Law School in 2010, specializing in IP Law, he’ll know much more about this than I.
    If I may oversimplify even more, there are unexpected areas of agreement in the apprently oppositional Ethics:
    Hacker’s Ethic: Information wants to be free.
    Writer’s/Inventor’s/Musician’s Ethic:
    Content creators want to be paid.
    Fo a sign of how deep the confusion runs, see the discussion over at Charles Stross’s blog on strange doings at SFWA (Science Fiction Writers of America).
    Charles Stross, Cory Doctorow, Teresa Nielsen Hayden, Greg Bear, Geoffrey Landis, Jane Yolen — these and many other very clever very engaged people hasve important things to say. Also, some obnoxious trolls try to distract from the issues.
    In any case, thank you for stating your position with such clarity, and giving the matter some priority.

    Reply
  5. tommy

    Copyright: When copyrights last the life of the creator plus 90 years, it’s not benefiting the creator; the creator is long dead. It’s certainly not benefiting the community: it means that virtually all creative works will be lost before they can revert to the public domain. The current situation is awful for creators, and awful for the community. Copyrights should be for a reasonable term: long enough for the creators to benefit, but short enough that things do revert to the public domain before they’re lost. I’ve heard proposals for various terms; something like 10 year terms with two renewals (for a maximum total of 30 years for an actively protected copyright) seems reasonable; as much as 50 would still be workable. The key is that the default term be reasonably short, but extendable for a reasonable period of time if and only if the owner of the copyright takes a deliberate action to extend it. That guarantees that creators have the opportunity to benefit, and works aren’t lost.

    Thanks for addressing the issue. I agree wholeheartedly and there needs to be more debate about the topic.
    The first copyrights in England lasted only fourteen years. I’ve heard that the first American copyrights lasted only half that. With the sheer volume of copyrighted material these days, you might think the period of protection would be, if anything, shorter rather than much, much longer.
    I’m almost certain that the vast majority (95% or greater) of profits made from all copyrighted materials put together is made within the first few years anyway. I would support copyrights that lasted a few decades (25-30 years) but the current system is beyond absurd. Even worse, there is no guarantee that the holders of the handful of profitable copyrights from back in the mid-20s, 30s, or 40s won’t push for further extensions when the time comes.
    At least some of the negative effects from current laws could be alleviated if we returned to a system of requiring the renewal of copyrights every couple of decades. Failure to renew a copyright for a small fee would put the work in the public domain.
    I also think what Americans could use is a public domain lobby to oppose excessive copyright restrictions. Corporations and the descendants of holders of old but profitable copyrights (like the Gershwin family) know how to organize, but because this isn’t a particularly sexy issue, the public doesn’t challenge them.

    Reply
  6. Shane

    Quality post, my friend. I think you make some interesting points, and I don’t disagree with any summarily.
    I do however bring forth a couple considerations for you. For one, as Janne alluded to, it is more difficult to protect IP than it is to protect tangible property. And as property laws only provide means of prosecution against trespass – they do not physically protect property – it becomes a non-trivial decision on who is responsible to protect the property. Newspaper publishers distribute their product in such a way as they often trust a customer to take only one copy. But if a customer violates that trust, is the state responsible to enforce property laws, since the publisher did not take adequate means to protect the distribution of their product?
    Another problem with IP protection is that often a violation of current property law occurs without any loss of profit to copyright/patent/tm holder. For instance, if somebody downloads an album from a band, that they wouldn’t have bought otherwise, are they hurting the copyright owner in anyway?
    The final consideration I would like to mention is the gray area that IP patents creates. Had Diffie and Hellman patented their logic for public key encryption, would Rivest, Shamir, and Adelman been able to patent their algorithm? Had Turing patented his IP for the computer, where would we be now? John Nash published a paper on the benefits of parallel computing when IBM was still working the kinks out of the first serial mainframes, should he be compensated?
    The point is that when you open the door to protection of the intangible, it becomes a very difficult task to say just who the original congnosticator(sp) was. In order to determine such a standing, one must trust the state to be fair and thorough in it’s determination, and in the spirit of Ludwig Mises, I don’t think this is possible
    Do any of these arguments categorically discredit IP protection, no, not at all. They are just difficulties to consider in the enforcement of such laws.

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  7. Jon L

    I agree with your opinions on how the laws should be changed, but I just wanted to share another way of looking at it. I don’t think the abolition of IP is necessarily the right way, but I don’t whole heartedly reject it either.
    At a very fundamental economic level, money and property are a solution to the problem of finite resources vs infinite desires. Because of this problem societies must have some way of allocating the finite resources. Communism does this by saying everyone gets a fair share, which is fair, but not necessarily just or effective in creating progress. Capitalism has a self organizing principle which is very elegant, but also hurts a lot of innocent people who just happen to be in the wrong place at the wrong time. Either way the point is some system is necessary because of the problem of finite resources, and most solutions to this problem lead to enforcing some sort of property.
    Intellectual ‘Property’ on the other hand is not a finite resource. If you build a chair that chair is you’re property not because it is tangible, but because it is finite. You can’t sell/give away that chair and still have the chair. But selling/giving away an idea doesn’t deny you the ability to still have the idea.
    A more concrete example is the old ‘fire’ analogy. If you give someone a light for a cigarette, charing them $0.50, and then they proceed to let someone light up off of their cigarette, it might be denying you potential profit, but it isn’t denying you any finite resource. (And that ‘potential’ profit is only ‘potential’ under some laws.) Additionally you aren’t actually profiting off of labor or resources, but off of capital. So linguistically, Intellectual Capital might be a better term that Intellectual Property. But that’s beside the point (I don’t disagree with your linguistic opinion either.)
    Anyway, my point is that while you make some strong arguments, what I’ve mentioned also is a strong argument (to me), so I can’t whole heartedly accept IP as an inherently valid idea. Of course complicating matters even more is how computers have changed the nature of information and IP. Who owns the patent to an idea generated by an algorithm that was written by one person, but with input parameters specified by another? etc.
    All I’m saying is I think these issues are and should still be up for discussion, rather than just accepting IP as valid, and immediately moving on to how to best implement it legally. (But at the same time, fixing the implementation is the quicker way to get results now.)

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  8. Philip Roberts

    On copyrights, and I suppose patents as well. What issues would you see with a system of say 10 year terms, with unlimited renewals but with increasing fees for each renewal?

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  9. archgoon

    Actually, I would like to point something out. You argue that a patent that that lasts 90 years after its creator doesn’t do its creator any good.
    This isn’t true. If IP rights should be considered as property, than the creator ought to be able to sell those rights, and transfer them to a third party. The value of the IP will be the expected payoff over time (with future payoffs successively reduced in value). If the time for which the patent will have a payoff is truncated, the value of the IP is reduced, and the creator won’t be able to sell it for as much. A similar situation exists in the context of dividends and stocks.

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  10. Paul Schofield

    I was fortunate enough to hear Justice Stephen Breyer talk over the summer. He touched on the Eldred v. Ashcroft case, where the constitutionality of the Copyright Term Extension Act (CTEA) was upheld, with him in the minority opinion that it should be struck down.
    One of the points he raised was that the extension didn’t defend many copyrights at all. In his dissent (.pdf);

    In conjunction with official figures on copyright renewals, the CRS Report indicates that only about 2% of copyrights between 55 and 75 years old retain commercial value–i.e., still generate royalties after that time.

    He later notes;

    A second, equally important, cause for concern arises out of the fact that copyright extension imposes a “permis-sions” requirement–not only upon potential users of “classic” works that still retain commercial value, but also upon potential users of any other work still in copyright. Again using CRS estimates, one can estimate that, by 2018, the number of such works 75 years of age or older will be about 350,000. … Be-cause the Copyright Act of 1976 abolished the requirement that an owner must renew a copyright, such still-in-copyright works (of little or no commercial value) will eventually number in the millions.

    The reason [that such copyrights “can stand as a significant obstacle”] is that the permissions requirement can inhibit or prevent the use of old works (particularly those without commercial value): (1) because it may prove ex-pensive to track down or to contract with the copyright holder, (2) because the holder may prove impossible to find, or (3) because the holder when found may deny per-mission either outright or through misinformed efforts to bargain.

    While his declaration that such laws are a significant and indefensible obstical to free speech is something of a stretch, I do believe he has a serious point, and his argument against the law economically makes more than good sense. He also makes an extremely strong case historically, with extended copyrights now getting into the region where copyrighted materials that are lesser known are being lost, with permission to reproduce being impossible to get and original copys being rare, if existant.
    For the benefits of copyright extension towards encouraging people to produce new material, just one quote is enough;

    Using assumptions about the time value of money pro-vided us by a group of economists (including five Nobel prize winners)… it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today.

    Such long copyrights only benefit those groups who already have one of those 2% or less profitable copyrights that actually survive (I’d estimate that less than 1% will actually reach the old limit), and is only incentive for the most vain.

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  11. Kevin C.

    What about another troubling issue in IP, that of gene patents? I’d say that some definite changes are needed there, particularly considering the traditional “product of nature” doctrine.

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  12. Flaky

    MarkCC wrote: ‘Trademarks: Trademarks work fine.’ I wouldn’t necessarily agree with this. Trademark laws don’t affect private citizens very much, so understandably there is very little public resentment towards them, but businesses do spend shitloads of money on trademark lawsuits, which ultimately the consumers end up paying for. Could something be done to this, that I can’t say.

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  13. Paul Schofield

    On copyrights, and I suppose patents as well. What issues would you see with a system of say 10 year terms, with unlimited renewals but with increasing fees for each renewal?
    Unlimited renewal wouldn’t work. The Copyright Clause specifies ‘limited Times’.
    Indeed, one of the arguments made in the above dissent is that life +70 years is essentially the same as unlimited copyright. The 70 year extension is worth at least 99.8% of what infinite extension would be worth.
    But in a conservative reading, all you would need is some limit on how many times the copyright can be renewed.
    Such a setup seems to let everyone win, with Big Bads like Disney being able to keep reselling their films once a generation, while most books, music and other products slipping into public domain quickly enough for the rarest, least loved items to be archived publicly.
    However, there are still some issues. Primarily with checking whether an item is still in copyright or not. For example, an image used in an article from 30 years ago. If you wanted to reproduce it, you would have to find out if the copyright had been extended – something extremely hard to do when all you have to go by is the photographers name (if that).
    A presumption that copyright infringement is not intended in cases where the work is older than the basic initial period (without due cause to believe otherwise), and enforcement only after warning has been issued and the offender has a chance to make ammends (or cease and desist) might fix that hole though, although making the copyrights of individuals a lot less profitable than those of companies with large teams of lawyers.
    There is also an issue of who can extend copyright terms or if they can be extended in issues of ownership debates. Imagine if the ownership of (say) the Beatles back catalogue was being contested at the time it was up for renewal. If one party wanted to break copyright, but the other wanted to extend it, what would the status of the songs be in the meantime? I like to think of that one as Schrödinger’s copyright, although it is less knotty than his cat problems. The obvious would be to keep copyright for the extension of the dispute, but not enforce any violations untill after the settlement either way.
    I’m sure others can come up with more.
    On patents, such a change would be horrific. Patents that make a company money (like copyrights, not exactly a vast majority these days) could potentially make a company significantly more money if they were maintained even a couple of years after the product is on the market. A product still under patent is going to experience significantly less competition than one without such protection.
    If you extended it indefinitely, I can’t see that many smaller companies even existing in many markets.

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  14. Nick Johnson

    I broadly agree with you, barring your suggestion of fixed term copyrights with renewals. Renewals raise a couple of issues, in my opinion: First, when practically everyone is creating copyright content every day, it’s very difficult to keep track of everything you own copyright to that is potentially valuable. Granted, most of what you own should be allowed to lapse, but it’s perfectly plausible that something I wrote 10 years ago and slipped my mind, but that I nevertheless want to retain copyright over could get missed, and once it’s too late, it’s too late.
    The second, and related issue is the impact copyright has on Open Source. Without copyright, there is no framework for the restrictions -even the basic attribution ones – that open source licenses impose on software. Relating that back to my 10 year old piece of code, I would like whatever I have open sourced to remain under that license so as to ensure that improvements get contributed back to the community – or at the very least, so that I get attribution – without having to renew copyright on every snippet of code I wrote and then released.

    Reply
  15. Paul Schofield

    Nick, to your first problem, I believe that requiring some form of contact with the copyright holder, say, six months to a year before the expiry date would solve that problem. If you can’t contact the copyright holder, then that copyright should probably drop anyway (if you can’t contact, you can’t get permission or pay fees). That does assign extra cost to maintaining copyrights though.
    As for your second, I have no idea how that could work out without something like Creative Commons or other forms of Open Source protection being explicitly written into law.

    Reply
  16. Jud

    There’s much intellectual creativity to which, by social consensus, we don’t ordinarily attach property rights. For example, Andrew Wiles didn’t have to pay the “owners” of the Taniyama-Shimura Conjecture in order to use it in his proof of Fermat’s Last Theorem. However, there are quite similar situations in which creative new ideas in basic research are treated as property. (In fact, I wonder whether Wiles or his employer could have claimed proprietary rights to his proof.)
    It seems to me there is interesting discussion to be had regarding how best to foster intellectual progress, when both individual reward and the cross-fertilization fostered by a free flow of information are arguably helpful, perhaps even necessary, to this ultimate goal.

    Reply
  17. Larry D'anna

    The “natural rights” view of IP that you’re taking is wrong, both morally and legally.
    You do *not* have the moral right to be paid for any and all value that you create.
    Beekeepers have no right to demand that adjacent farmers pay them for fertilizing their crops.
    People have a natural right to own and dispose of property, to engage in business and trade with others. HOWEVER, the specific rules that apply to business and property are a matter of policy, including the type and structure of IP rights. You have no natural right to a specific form of IP law any more than you have a natural right to a specific form of contract law, or anything else.
    The founders recognized this, and the language of the constitution makes it clear:
    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.
    IP is a right granted by Congress, for a pragmatic purpose. It is not a human right. It is not a natural right.
    The natural rights view you take is an extremist view that has no basis in the legal history of the US or in ethics or morality. It is a *new* view invented and propagated by MPAA and their ilk. It is the view of companies that believe they have a natural right to tell their customers what country they can view a DVD in. It’s repugnant, immoral, absolutist, and anti-American.

    Reply
  18. KeithB

    I agree, Mark! (Of course, I am going through a patent process myself!)
    But trademarks might need some work. I don’t think common phrases should be trademarked: Things like “The Real Thing”, or “Do It.” should be protected.
    Also, some understanding about common words need to be reached. Look at “Apple Computer” vs “Apple”, the Beatle’s music company.

    Reply
  19. David

    Mark,
    How did you justify arguing that IP is property that belongs to the creator, to the position that society has the right to take that property from its creator after a certain period of time? What is moral about this? If you want my property you should pay for it!
    Furthermore, why shouldn’t I be able to pass the rights to my IP down to my children when I die? Why shouldn’t my heirs be able to pass these rights down to their heirs? What gives anyone the right to take my property? If I am forced to give the fruits of my labor to someone else then I am the victim of either theft or slavery.
    What about inventing a process? For example, what if I invent a form of mathematics that is on par with the Newton/Leibnitz creation of calculus? Suppose I spent decades of my life creating this new form of mathematics. Why shouldn’t I be able to profit from my hard work in producing this new form of mathematics?
    I simply can’t buy into the concept of IP. I think the concept itself is flawed. Most creators of IP are not paid much if anything for their creative genius. Musicians, writers, and artist toil away for nothing because they enjoy what they are doing. It is only a select few that succeed financially. Inventors/engineers on the other hand normally work for a corporation that pays for the creation of the IP and reaps the financial benefits.
    If we elliminated all IP laws tomorrow I have no doubt that it would not stop people from being creative. It also wouldn’t stop the select few from continueing to make a living. People like J.K. Rowling would still have book publishers willing to pay her a premium to have first access to her work. Defacto copyrights would also appear with publishers and bookstores entering exclusive agreements.
    IP is like the forests of medieval times where only the royalty could hunt, while peasants starved. Screw that, I’m going into the forest with Robin Hood.

    Reply
  20. Mark C. Chu-Carroll

    David:
    My argument is based on a tradeoff of interests. Rights are never absolute: they exist in a space of tradeoffs. I have the right to free speech, but I don’t have the right to shout fire in a theatre. More pertinent to the IP argument, I have property rights for my house and the land under it; but I can’t build an extension, because the town has building codes that limit what I can do with my property; and the state can come in and take it from me via eminent domain.
    The right to ownership of non-tangible property is important, because without it, creative people can’t make a living creating intangibles. Having people create things, tangible or not, is important for the community – and so the laws need to be structured to make it possible for people to benefit from their work; but that needs to be balanced against the community. Having everything been eternally
    owned and protected is very much against the interests of the community. There needs to be a balance: rewarding creators, promoting creation, while not handcuffing the community. The balance of that tradeoff is to say that it should be protected for a while – to give the creator the some benefit, but that the time should be short enough that things fall into the public domain before they’re lost.
    WRT the “Robin Hood” argument: I’d argue that it’s exactly the opposite. It seems to me that the world with no IP law would be exactly the world of royalty and serfs that you describe. If IP law were to disappear, then you’d have a small group of elite creators who had the corporate connections to create some kind of protection for their works; but the rest of us would be stuck. Right now, I can write my blog, and know that a publishing house can’t download my articles and assemble them into a book without paying me. Take away IP law, and what’s to stop them? People like JK Rowling and Tom Clancy and Stephen King would find a way to protect their works. But you and me and people like us would be screwed. Copyright would become a right of the rich, whereas all of us lowly peasants would be stuck.

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  21. Jonathan Vos Post

    “I have the right to free speech, but I don’t have the right to shout fire in a theatre” — unless there IS a fire.
    There is a fire in Copyright law, and in patent law. The flames mentioned include the period applicable, the items that fall into non-public-domain limbo because it’s expensive to track down the owners, copyrights on software, and copyrights on genes.
    On the latter, I’d published quite some time ago:
    THE TWILIGHT OF GENETIC ENGINEERING
    by
    JONATHAN VOS POST
    Jungle-floor bacteria devour helicopters after war;
    ripped human corpses thaw, screaming, in battle zone
    Smog-sucking moss evolves to grow on auto bumpers;
    gas-tank tapeworm writhes: blind premium dreams
    Heavy weaponry of corporate wars, intractable
    ultimatum when lawyers subpoena their own DNA
    Cockroaches skitter: dust of broken televisions;
    lay phosphorescent eggs between commercials
    Reunification pressures force abandonment of immortality;
    death substitutes for taxes: final cost of doing business
    Skinned headless lizard throbs, shoved into your chest:
    replicant replaces your broken-once-too-often heart
    Time & nucleotide
    wait for no man
    2300-2320
    15 Sep 92
    Copyright 1996, 1997 by Emerald City Publishing.
    All rights reserved. May not be reproduced without permission.
    May be posted electronically provided that
    it is transmitted unaltered, in its
    entirety, and without charge.

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  22. Mark C. Chu-Carroll

    JvP:
    I agree with you completely. The reason that I wrote this was because I do think that something is seriously, terribly broken, but the blame is being put in the wrong place.
    It’s not the *idea* of intellectual property that’s the problem. And it’s not the *idea* of laws to protect IP that’s the problem. It’s the specific – and relatively recent – implementation of those laws that’s a huge and awful problem. I’d like to see it solved by fixing the problems in the laws without discarding the valuable ideas behind it.
    The idea of claiming a copyright on the gene sequence of a living thing is positively ridiculous. I don’t have a problem (on an IP basis) with a limited term copyright on a *created* gene sequence: if someone can create a gene sequence for a particular purpose and insert it into a living organism, then having some kind of protection is reasonable; but claiming to “own” a piece of the human genome just because you were the first to transcribe it is silly. If there’s anything in the universe that’s obviously “public domain” it’s the genes that every living thing has from the moment it’s born until the moment it dies.
    The issue of tracking down the owner of a copyrighted work is what I mean when I talk about things being lost. There are so many works where it’s become impossible to track down who owns the rights to them! And because they are still in copyright, they can’t be reprinted or used in any way for another 70-80 years, by which time they will have been completely forgotten and lost.
    As a computer scientist, I would dearly love to be able to look at the code for Visicalc. But Visicalc will probably be under copyright for more than 100 years! The original ROM code for the Apple II computer – Apple integer basic and the Sweet-16 virtual processor – they should be in textbooks! But they’re going to be covered by copyright for another hundred years – the original code was written in the late 70s by Steve Wozniak. Woz is still alive – and that code won’t fall into the public domain until 90 years after he’s dead. Odds are, there will be no readable copies left by then. One of the foundational pieces of the history of computing will be lost, forever.

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  23. Samuel A. Falvo II

    Mark, in #22, you routinely describe a world without IP laws, but yet, in the same sentence or adjacent setnences, make use of the phrase “protect their work,” or even “copyright.” How can any of these be, if IP law *doesn’t* *exist*?
    In a world without IP laws, some publisher could publish the works of your blog in a book, even without your knowledge. This would be perfectly legal. But, it would equally be legal for you to take any excerpt of any of their publications, and include them, at will, anywhere, in your blog. Not one legal action against you could be taken, because there IS NO copyright, NO trademark, or any other basis on which to persue legal action against you. Just as you cannot stop them, they cannot stop you.
    To everyone who is concerned about the transferrance of a license to others (perhaps children): What part of a limited copyright prevents this? As an amateur radio operator, my license lasts for 10 years. But if I wanted to, I could, in cooperation with someone else, transfer my license to them. It’s my right to do, if I so desire. Many ham radio club callsigns were once those of individuals. W1AW is perhaps the most popular example. In light of this, I just don’t see how Mark’s copyright idea in *ANY* way hinders transferability.
    As far as trademarks are concerned, I think they should be banned outright. They’re dumb. Stupid. Irrelavent. I’m looking at a web-ad for XM satellite radio. Their (((XM))) logo is a graphic design — it is copyrightable. That’s all you need. “Just do it?” Bullshit. I say, “Just do it” every day around here. Am I in violation of Nike’s trademark? Yes. Am I going to pay them? Hell no. They can suck babboons for all I care. It, and other stupid catchy phrases, are the STUPIDEST form of IP I’ve *EVER* seen. Moreover, trademarks, I feel, are a strongly contributing factor to the dumbing down of this nation. Instead of actually attempting to convince me of why I should purchase Nike sneakers, they rely on bullshit phrases. So, allow me to do Nike’s job for them: I purchase Nike because the shoes last effectively forever. Considering they cost the silver platter on which they come, they had better.
    With regards to copyrights and patents, however, I agree with Mark’s idea for copyrights and the intent for patents. However, in both cases, I think they should be reduced to 10 years each. Copyrights can be renewed for up to, say, 10 times. This gives up to 100 years of protection IF you are actively diligent enough to maintain it. Patents, however, are totally different.
    I’d like to see patents last 10 years. PERIOD. No renewals. If you cannot get a product on the market after 10 years, you have bigger problems.
    With regards to the approval process, I’d like to see it switch to a jury process. What I mean is, each fixed-sized batch of patent applications would be put through a court of intellectual law, with a jury selected of the PEERS of the submitter. They’d have a week to go through and deliberate on the entire stack they receive. Each patent application in the stack gets a “novel” or “not novel” assessment.
    However, it is vital that the patent submitter be kept anonymous throughout the process. Likewise, the jury members are to be kept under strict non-disclosure agreements and non-compete agreements (companies already have these for employees, so it’s not like these are anything new). Jury members who are in any way associated with the submitter (to be determined by government personnel through a process similar to jury duty today) are removed from the patent jury.
    The idea being, the jury knows NOTHING about the inventors, and consequently, are barred by contractual law to not exploit what they see in the submitted testimony within the patent expiry period. Then, the jury will decide — is this a novel idea, or is it not? If it is, the patent is issued. If not, back to the drawing board.
    This would utterly eliminate most of the bogus patents submitted. It’d reduced the burden on the government’s lawyers, it’d utterly wipe out the Patent Lawyer industry as we know it today, while more equitably distributing the workload amongst those who *truely* know what is going on around them in their fields.
    The patent approval process is a judgement on how novel the invention is. Not re-using the same, known-good court process, albeit in a smaller, more purposely designed, manner for patents is just stupid.

    Reply
  24. Greg M

    Yeah, sadly the second paragraph invalidates everything after. Your maths posts usually make a lot of sense but you completely missed the point on this one.
    It’s the initial production of the information that’s valuable, after that the copying is cheap as chips and it makes no economic sense to restrict it – you’re just reducing the efficacy of the original hard work. So copyright is backwards, but that’s not at all surprising because it was devised back when copying was out of reach of the all but the richest, where now copying is essentially free. The market for idea-creation market is capable of standing on its own two feet these days.
    Unfortunately, where you get inefficiencies, there are always vultures circling to feed off it, and the publishing-houses have got so fat feeding off this one that they can buy new IP restrictions to protect their mine of inefficiency.
    Patents were intended to induce inventors to disclose ideas that they would otherwise have kept secret at their own expense for longer than the patent period. Not at all the same as copyright, because you can still profit while keeping it a secret.
    Nowadays we grant patents for algorithms! How exactly were they going to keep those secret without a patent? I think communication is good enough these days that the related industry could band together to offer a bounty for disclosure in situations where it was in their customers’ interests, again the market will probably work it out without the government’s intervention.
    Trademarks are a bit different because they serve an actual economic purpose – conveying information about the origin of goods. Surely a few of the implementation details could be a little better, but we do need legal support for proof-of-identity. Fraud laws only kick in once statements are held to mean something, so a naming registry is appropriate. Not sure that it should be extended to non-textual branding though, and the disincentives to let near-miss infringements go are a bit insidious.
    They _are_ all different (but similar enough to deserve a catch-all term), and two of them are quite obviously counter-productive and anachronistic. At risk of sounding a bit raving-right, the only reasonable solution seems to be that we (gradually?) erase the restrictions ’til we get a chance to see if there’s anything wrong with a free market. Then we can start tinkering if we really need to, but the problems will be 90% solved.

    Reply
  25. Alejandro Rivero

    Let me add: software, or at least OS, is not artistic but industrial production. It should not be copyrighted (Gates invented the trick, or some other lawyer) but patented, and not a “software patent” but a real one: a complete working description of the mechanism, so that any software engineer should be able to build (read, compile) a working apparatus from the description in the patent. Furthermore, it should not renew beyond 25 years.

    With these conditions:
    a) all of the (OS level at least) software should be open source, in order to be patented.
    b) all of the 25 years old software should be free software (but BSD like, not GPL like).

    Reply
  26. Mu

    What bugs me most with IP is the commingling of IP and physical property. If I pay for “IP” then I should OWN the IP. That means the physical form that the IP has, as an intangible, should not matter at all. I paid once for the right to have a copy of Star Wars in my house. Why do I need to pay every time the format changes? Just for one movie, you are supposed to pay for the VHS copy (presuming you didn’t fall into the betamax trap), the laserdisk that was supposed to be the next sliced bread, the DVD copy and now the HD copy.
    All for the same intangible – watching Star Wars at home.
    Change IP to be independent from the format. I buy a license to watch Star Wars, and you can charge me a reasonable price for manufacturing cost if I want to watch it in a new format.
    For a DVD, that’s probably $3, incl. shipping and handling. For an HD right now, maybe $5.
    Patents, even software patents, are basically a good idea, but for two facts. For once, patent violations are civil matters, so you are responsible for fighting your own patent wars. The big business is most likely to win.
    Second, most patents gain value not for the intended invention, but for some minor claim that was never intended to be the focus of the invention. It has been that way since the 1800, one of the most famous cases being the Rolling-White patent for a repeating firearm. The weapon did not work, but, in one of the claims, it mentioned a fully bored chamber. And based on that claim, Smith & Wesson cornered the early market for cartridge revolvers. In a humorous side note, the license paid for by Smith& Wesson forced the patent owner to defend the patent from his own funds. He went broke over it.

    Reply
  27. Xanthir, FCD

    Mark, I’ve been reading your blog for well over a year now, and I think this is the first time I’ve ever been disappointed in you.
    Not because I disagree with you – it’s perfectly fine for two reasonable people to disagree. No, the reason I’m disappointed in you is because you fell for a red herring. This red herring is obvious, so absolute basic to geekdom, that I was amazed that you fell for it.
    The appropriate divide between ‘property’ and ‘nonproperty’ that us anti-IP people wish to make isn’t between tangible and intangible goods. This is an obviously bad division, or at least it *should* be obvious, to anyone who’s ever watched Star Trek. We’ve all seen replicators in action and wished we could have one. Of course, replicators are hypertech at the moment. 3D printers, on the other hand, are, at most, two decades from being appliances in every home. Once they’ve established themselves, tangible goods will suffer from the exact same issues that currently plague music, movies, and games.
    The true divide is between scarce and abundant goods. For this purpose, define a scarce good as a good which costs money for the creator/manufacturer/developer to make a copy of, while an abundant good is free to copy, or the consumer is willing and able to pay all associated costs. The initial cost to make a product doesn’t matter here – that’s a one-time cost that isn’t repeated. Only the cost to make copies, the marginal cost, determines whether a good is scarce or abundant.
    Abundant goods have virtually never existed in the world. Only now, with the invention and ubiquity of personal computers and the internet, have the first abundant goods become widespread. Music is abundant, as are movies, games, art, text, and any other digital good. It costs an absolute pittance to distribute it, and with the advent of filesharing services, *all* distribution and copying cost is willingly footed by the consumer.
    Dishware is scarce, but will be abundant soon enough (there’s a Youtube video floating around about a guy who invented an on-the-fly dish maker). Chairs are scarce, and will be abundant a bit later. With more advanced 3d printers in every home, even computers will become abundant goods.
    If you had a replicator in your home, would you want it to be illegal to use it to make toys for little Johnny? Sure, there’ll be a Free Hardware Foundation, but the majority of consumer goods will be copyrighted and cost a good amount of money to reproduce, even if the cost to the distributor is just that of data (becoming cheaper by the moment, and already widespread commoditizing) and you foot the rest of the bill.
    I feel that copyright is immoral. If you have an abundant good, requiring people to pay for it is outright wrong, in my mind. Instead, find a scarce good to sell to your customers, taking advantage of the abundant good. More and more people are proving that this is a good business model, making money hand over fist while enabling their customers, rather than fighting or criminalizing them. You have webcomic authors giving away their comic and making money on adverts and merchandise. Musicians giving away their music and making money on concerts and merchandise. Programmers giving away their code and making money on commissions (this is how Stallman made his living designing emacs, after all). Examples abound, and pile up by the day, of people embracing the economics of abundance and profiting from it.
    What will remain a scarce good even into the future, with the ability for consumers to replicate anything for nothing more than the cost of electricity and a bit of raw material? Human creativity. Human service. Time itself. Skilled craftsman of any good (furniture, clothing, software, art, stories, concert performances, etc) will always be desired, because not everyone can design and innovate new things. Having a skilled designer make something custom for you is a big status symbol now, and I expect will remain so in the future (similar to, but imo better than, the cost of some designer purse or car being a status symbol). Face-to-face contact with actual people will always be desired, because we like the social experience (and strong AI is still quite a bit away). And we can never make more time in the day. Take advantage of these and I don’t think you’ll ever have your market cut out from under you by your own customers.
    The world of the future is, I think, one where almost all goods are abundant. The only thing that you can really charge for are the few scarce goods like what I talked about before, and commodities. Yes, this does mean that there are less things one can do to actually make money. It also means that there are less things that one *needs* money for. When you can download food, clothing, furniture, and entertainment for free and burn only the cost of generic materials and energy, that’s a wonderful world. Eventually, access to these things might even be considered a basic human right, something the government provides for everyone. Who knows what the future will bring?
    This is how I feel about the issue. I hope I’ve at least educated you to a more rational opposing point of view than the one you dismissed in your post. And I do love your blog, Mark. ^_^

    Reply
  28. David

    WRT the reverse “Robin Hood” argument. Yes, without IP laws any company can publish your blog in a book form without paying you a cent and let’s assume that they make a large sum of money. This company now has no doubt that your work has value, so they will now be willing to pay you for first access to your future work.
    Contrast this scenario with the process that occurs under current IP laws. You go to that big company and ask them to take a chance on you and publish your proposed book. They normally tell new writers to take a long walk on a short pier, but you show them all the free content you have been providing for years and how your site has lots of vistors. They decide to take a chance on you — but still paying you very little for this first book. If this book is successful they then are willing to pay you big sums for subsequent books.
    What’s the difference between these two scenarios? Not much when it comes to the creator of a commercially sucessful work. However, there is a big difference when it comes to work that is not a commercial success — such as the vast majority of IP. Without IP laws the creative ideas that are relased into the public pass directly into the public domain, instead of being relegated to the control of large corporations.
    BTW, most countries have signed onto the Berne agreement (an international IP treaty). This sets the minimum copyright period to 50 years after the author’s death. So any changes to our laws will need to be negotiated with a lot of countries. Most of these countries have no desire to weaken their laws, but have been strengthing them over the last several years.
    From a pragmatic standpoint the best things to do is join the fight against IP laws. This is the only chance we really have of seeing any reform to IP laws. I can’t remember where I read it, but there is even a poltical party in Norway or Sweden whose only platform is the abolishment of IP laws. They are attracting enough support that mainstream politicians are starting to pay attention.

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  29. Greg M

    The right to ownership of non-tangible property is important, because without it, creative people can’t make a living creating intangibles.
    OK that simply isn’t true – use your imagination. There are a million counter-examples. And anyway, it just doesn’t hold up to economic logic: without IP restrictions limiting the worth to society of your creation, it will be far more beneficial, ergo it will be worth more to people for you to create it, so they will pay you more for its creation. It’s not hard to see ways that the demand for creation can directly pay for the creative act, rather than indirectly through the IP system, unfortunately it behooves the would-be builders of the necessary infrastructure to maintain the status quo, because IP makes things much easier for the middlemen to make a profit at the expense of the actual producers and consumers of creative works.

    Reply
  30. Jonathan Vos Post

    Re #28: “Abundant goods have virtually never existed in the world.”
    Things changed dramatically about 11,000 years ago when the climate, which had varied chaotically after the ice sheets retreated, settled into a basin of attraction which was “the garden of eden.”
    That is, hunter gatherer society was rather suddenly supplanted in at least half a dozen places (Mesoamerica, Mesopotamia, Indus valley, Harrappan, southeast Asia, part of China).
    Agriculural surplus was now possible. This led to grain storage. Thus to Kings, armies to plunder the surplus, money, cities built around the storage and administrative ceneters…
    Mind you, I feel that all of those are now recently obsolete.
    I also consider the poetry anthology called the “Bible” to be a translated, edited, written record of the oral traditions describing the hunter gatherer to settled agriculture transition.
    Software and text and music and video as IP may be making the same sort of transition from Garden of Eden to “civilization.”

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  31. Chris K

    “IP” is a collective term that confuses intangible things with
    tangible property.

    Your blog post mainly is a response to those who wish to abolish
    all “IP. That faction is very very small and does not have an
    iota of political influence today and has no hope of such
    influence. It would have been more useful to hear your opinions
    about practical and/or existing alternatives. Such as
    alternatives in use in different countries, or that have been
    actually proposed by politicians, or that are promoted by experts
    in the field. Attack abolitionists is very close to attacking a
    straw man proposal.

    My opinions:

    Trademark: this may or may not be perfect, but it does not appear
    to be crippling progress. The domain-name procedures having
    shown some of the imperfections. Abolishing trademarks would
    allow massive confusion and fraud.

    Copyright: this has been screwed up. Retroactive extensions to
    the length of copyright terms benefit a few heirs and
    corporations. This is pure corruption and bribery. One response
    would have been if the courts invalidated the retroactive
    extensions. Another response would be to reduce the corruption.
    No arguing over the term lengths is practical until retroactive
    extensions are no longer possible.

    Assigning civil and criminal liability has become a problem.
    This is mainly due to (treaty driven) DMCA-like laws which
    criminalize “circumvention” which is orthogonal to copyright.
    Many countries have failed to legalize home taping (time-shifting
    with VHS recorders). Canada has a proposed law which will remove
    all “fair use” loopholes. The “child porn” witch hunt loophole
    to the Bill of Rights keeps growing.

    Even with all those problems, the abolitionist approach, however
    argued, is a minority.

    Patents: The problems here depend on area. The traditional
    industrial patents have not prevented economic success, and are only
    in need of minor tweaking, such as the Supreme Court and Congress have
    been doing of late. Biomedical patents have created immense problems.
    Surgeons had to get special protection because a few bad apples
    obtained patents on how to perform some surguries. Actual animals
    ought not to be patentable. A seqence of DNA bases should never have
    been patentable (reading your DNA and filing a patent what is read is
    not an invention!). “Busniess methods” patents were created by a
    single bad judicial decision, without any action by legislators
    [1]. Mathematical theorems are also discoveries and most countries see
    these as unpatentable. Algorithms are largely isomorphic to theorems
    and also should be unpatentable. This is why Europe still rejects the
    validity of software patents. I was disappointed that your post did
    not discuss this active area of poltical disagreement on software
    patents.

    In particular you say “A patent protects something where the
    intangible is a description or means of producing a tangible item: a
    new way of making an engine.”
    This “tangible item” does not
    extend, in my mind, to software.

    An example: even Google’s PageRank (TM) is just linear algebra: an
    eignsolution of the markov chain model of the transition matrix [2].

    I strongly disagree with one of your solutions: “The term should be
    determined by when the inventor starts to profit from the
    invention.”
    That is trivial for a company to manipulate via
    accounting.

    I do agree with you concluding sentence: “Trivial patents should
    never be granted; and it should be easier to overturn patents if
    legitimate prior art can be demonstrated.”

    I would be interested in a post where you explain why your particular
    software patents ought to have protection, despite this being illegal
    in, say, Europe.

    [1]
    http://en.wikipedia.org/wiki/Business_method_patent

    [2]
    http://www.mathworks.com/company/newsletters/news_notes/clevescorner/oct02_cleve.html

    Reply
  32. Xanthir, FCD

    I’m not really sure what you’re talking about there, JVP. Agricultural goods are still ‘scarce’ in the way that I am using the term. Making a copy of a loaf of bread is still definitely something that takes money.
    If you’re arguing that my premises are wrongly aligned, then I’m not sure exactly how you are stating that, and so cannot respond.

    Reply
  33. Jonathan Vos Post

    Re #32:
    Xanthir “define[d] a scarce good as a good which costs money for the creator/manufacturer/developer to make a copy of, while an abundant good is free to copy, or the consumer is willing and able to pay all associated costs.”
    Reserves of grain, due to conumption finally being much less than production, is not quite the same as replicating a loaf of bread. The grain is the result of a primary industry (as also happens for hunting, fishing, logging, mining). Making it into flour is a secondary industry (as is butchering and curing the game, deboning and smoking the fish, sawing the logs into boards, smelting the ore into metal).
    The tertiary industries bakes the bread, sells the kabobs, cans the sardines, nails boards into houses and furnature, hammers the metal alloy into spearheads.
    The quaternary industries include the education, government, science, and arts enabled by the consumer society of the first three categories. In the USA, these “knowledge workers” rose to roughly half the US adult population somewhere between 1950 and 1960. That’s a long way from the Jeffersonian agricultural origins!
    The family business that Jesus stood to inherit translates better, not into “carpenter”, but into “prime contractor” for homebuilding. He is alleged to have demonstrated a cost-free way to replicate loaves and fishes. Extra credit for identifying the one piece of hardware that he was alleged to have actually constructed by hand (no, Mel Brooks, not kitchen cabinets).

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  34. Clayton Myers

    MarkCC
    I think you’ve begged the question with your assertion that “the most basic idea of property is that when I produce value, the value produced is mine,” especially when combined with your generalization of “value.” I don’t want to directly attack your definition of property, but I want to chip away at it a little.
    There are, I think, situations where the idea of ownership of value cannot apply, or at least where the application is unclear in its meaning or consequence. If I push you out of the way of a speeding car, where is the value that I have produced? (or, perhaps, have I not produced value at all?) What would it mean to say that I “own” that value? Or, more weakly, that I deserve to be compensated for that value’s production?
    If you want to generalize “value”, you have to generalize the concept of “ownership,” which is (in its root defition) closely tied to physical objects. What generalization of “ownership” extends to the situation above?

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  35. Xanthir, FCD

    JVP: I’m still not understanding what you’re trying to get at. Yes, grain is different than bread. But both are scarce resources (unless you, the consumer, have an easy and cheap way to make copies of the grain you buy).
    Now, if we all had Jesus’ power of easy fish-and-loaf replication, then we’d have copyright issues over baked goods. ^_^

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  36. Jonathan Vos Post

    re #35: As usual, Xanthir, we mostly agree. My main point is that it is hard to see what is going on, because we are in the biggest transition since civilization was invented, not just the biggest since the industrial revolution, and we don’t yet know the new paradigm.
    Google and Its Enemies
    The much-hyped project to digitize 32 million books sounds like a good idea. Why are so many people taking shots at it?
    by Jonathan V. Last
    The Weekly Standard
    12/10/2007, Volume 013, Issue 13
    “… Copyright has its foundations in English law and the Licensing Act of 1662. The falling costs of printing had created rampant book piracy in England. Concerned that such behavior would blunt creativity and harm the book business, Charles II established a register of licensed books to protect authors and publishers. A hundred years later, the copyright was the only right the Founding Fathers gauged important enough to recognize explicitly in the Constitution itself. In the intervening years, it has evolved somewhat. Today, works published before 1923 are generally in the public domain. There are exceptions and complexities, but works published after 1978 are protected by copyright for 70 years from the author’s death. As for works published between 1923 and 1978, they were given an original copyright protection of 28 years from first publication and another 67 years of protection upon renewal of the copyright. Got that?”
    “In the Google worldview, content is individually valueless. No one page is more important than the next; the value lies in the page view. And a page view is a page view, regardless of whether the page in question has a picture of a cat, a single link to another site, or the full text of Freakonomics. When all you’re selling is ad space, the value shifts from the content to the viewer. And ultimately the content is valued at nothing. And here, finally, is the larger problem posed by Google’s actions. Books are not in any important sense user-centric. Whether or not a book has readers matters little. Books stand on their own, over time, as ideas and creations. In the world of books, it is the ideas and the authors that matter most, not the readers. That is why the copyright exists in the first place, to protect the value of these created works, a value which Google is trying mightily to deny.”
    see also:
    http://diveintomark.org/archives/2007/11/19/the-future-of-reading

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  37. MaxPolun

    I’m coming into this discussion a bit late (serves me right for not checking GM/BM more often), but there is a point I want to bring up that I haven’t seen in the comments above.
    I’m a pragmatist, it seems that there is no inherent reason why IP (or regular property for that matter) should exist, and we can define it however we like, the question then becomes, what is the most useful way of defining it?
    I think most people (at least most people here) would agree that we should have an IP system that encourages innovation and ensures that content producers are reimbursed when people use their work (if they choose to be), but only for a reasonable amount of time. The current system is obviously broken, so what systems could we make that fulfill these goals? Mark, yours seems reasonable, but having no IP might be ok, too (How many people paid for the album Radiohead released a while back? I know I did). We don’t know. The only way to settle what is the best system is with empirical data, though I have no idea how we would try to gather such data (other than looking at what’s been tried before).
    and as Xanthir pointed out, these problems will only become worse if/when 3d printers become cheap and powerful.

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  38. Bad

    I’m still not sure why the owner of a copyright shouldn’t just be able to set their own terms of sale and length of copyright arbitrarily. If you don’t like the terms, don’t buy it.
    And there’s nothing inherently silly about a term that lasts 90 years after an author’s death. That CAN benefit the author, because it means that they can sell their work with exactly that much extra added value on it. A work that you can buy the copyright to that will last for 180 years is worth a heck of a lot more than one which will last only so long as the original creator lives.

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  39. Brian Jaress

    Mark,
    I’d agree with you that the laws should be significantly revised without necessarily being abolished, but I think your whole line of reasoning is completely bogus.
    Property is not based on value or on hard work.
    If you make a chair so lousy it’s worth less than the wood, it’s yours even though you destroyed value instead of creating it. If the chair is so bad its worthless, it’s still yours even though it has no value. If the chair is so bad it’s dangerous to sit in and has negative value, you still own it.
    And of course there are many valuable things that are not anyone’s property, like the Sun. Or, if you want an intangible, happiness.
    Nor does it matter how hard you work. If you find something abandoned in the trash and take it, it’s yours. It doesn’t matter that all you did was pick it up and put it in your pocket. Win something in a bet, and it’s yours — even if all you did was sit on your butt and watch someone else make touchdowns.
    Again, I’m not opposed to some reduced form of the laws you mentioned. But when I look at the arguments for “intellectual property,” all I see are incredibly naive notions of property.
    So please stop saying that people who argue against “intellectual property” are saying that intangible things have no value. They aren’t.

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  40. Xanthir,FCD

    I’m still not sure why the owner of a copyright shouldn’t just be able to set their own terms of sale and length of copyright arbitrarily. If you don’t like the terms, don’t buy it.

    The founders answered that well enough. They believed that works of the mind are fundamentally owned by everyone. However, they felt that the creator needed a limited right to control their mental creations or else they might not feel they had enough incentive to create in the first place.
    Saying, “If you don’t like it, don’t buy it” is wonderfully capitalist, but the fact is that society as a whole massively benefits from loss of copyright. Just how fast do you think science and math would progress if everything was pay-to-play until 90 years after the scientist’s death? Free distribution of knowledge is a vital and necessary component of progress. As Mark himself says, there are some ancient (and long since non-profitable) computer programs which he’d *love* to look at, but he won’t be able to for several decades yet without paying.
    Your post also begs the question of whether copyrights have a right to exist at all. I don’t believe so, but I’m willing to compromise and work with a small copyright (though I voluntarily give up my copyright on things I create).
    As Mark said, though, even the founder’s copyright of 7-14 years is too long in our modern age, and the until-death-plus-90-years copyright is absolutely criminal. I believe a copyright of 2 years is more than enough time to allow someone to profit off of their creations, while still releasing the information to the rest of us in a relatively timely manner.

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