Hey, copyright related question: is there any easy way out there to look up when currently copyrighted works go public domain?
And while the patent TAL was generally great, there was fifteen minutes or so on the incredible shadiness of the patent troll/patent library company because it does things through shell companies. Although the basic patent-trolling business model sounds horrendous, the bit about the shell companies was silly -- any remotely complicated business has a corporate structure that looks insane to a layperson.
I fondly recall the very first case I ever worked on as a lawyer, for a big international fast food company. A lot of different subsidiaries were relevant, and it wasn't quite clear which owned what in what way. So we asked in-house counsel for an organizational chart showing the ownership relationships between all the legal entities, just for our own reference. They thought about the request for a week or so, and then said "No." The information was confidential, and it would also just be too hard to figure out.
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Cool photoset of people after jogging vs. presentational, in the same pose and light.
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The information was confidential, and it would also just be too hard to figure out.
There's zero chance they didn't alraedy have one, although it's possible the person you were corresponding with didn't have a copy.
As far as the confidential part, I'm confused: this was your own client (not the opposition)? And they didn't want to give you confidential information?
Jammies has complained at length in the past about how mired his company is with this patent troll stuff.
It was our own client, but they were treating it as need-to-know. And I wouldn't actually be all that surprised if they had to compile the chart rather than handing out something that had already been done -- I've certainly, in other contexts, been given similar charts which the client then had to supplement because they were oversimplified.
3: I ran my fastest mile ever yesterday (hilariously slow for a human, but fast for me). I'm truly grateful there was no one around to snap a photo as I finished
Calling owners of valid legal rights "trolls" is total bullshit. If they aren't the owner, if the patent isn't valid, or if you aren't infringing, ok fine, let's hear about it. But if you're infringing, don't tell me that the owners of the patent aren't "authentic."
I disliked that episode of TAL.
They seemed to focus on:
1. "Company buys patent and seeks to protect it."
Instead of
2. "Company is trying to enforce a bogus patent."
They kept mixing them up. Nothing wrong with Number 1. Number 2 seems to be the problem.
If the patent is valid and the thing patented has value, people need to go through the patent holder.
I would have much rather heard about how bad the patent issuing process is.
It's not my area at all (where's LizSpigot?) but my understanding is that the real issue is that the Patent Office is handing out patents that are overbroad and where there is no actual innovation, and those patents are being abused. If by "valid" you mean the forms got filled out right, the patents are "valid", but they shouldn't have been issued.
But you're right that the outrage should be focused on the Patent Office, not on the trolls exploiting the Patent Office's malfeasance.
I think the point is that everyone knows the patent is not valid, and yet it can still be used for extortion, CharleyCarp.
1. "Company buys patent and seeks to protect it."
Companies buys patents by the thousands with no business intent other than threatening lawsuits against and collecting royalties from people who are arguably infringing those patents does not in any way seem to be a defensible business practice.
14 gets it right. "Seeks to protect" what against what?
Why? This is like saying the government is entirely at fault because the banks lent recklessly, because the regulators didn't stop them.
And what moral force does having a legally valid patent have? Approximately none. Patent trolls are causing actual damage to the US economy, legally or no.
A "valid" patent (by which I mean: for a genuine innovation) makes the game somewhat less disgusting, but is far from complete absolution.
I'm too busy to deal with this, but 8 gets it right. A big company with a patent portfolio is fine, but somehow the same right goes to a small company and it becomes a "troll.". Essentially every person who isn't a fortune 500 company who sues on a patent right gets called a troll. There's plenty to criticize about the patent system, but the troll concept is just defense lawyer bullshit similar to tort reform.
14:
That company creates a market for the patent and the ability to enforce it.
The individual cannot afford the cost of the lawsuit.
You state "arguably infringing." If the case isnt valid, the Federal Courts are not unwilling to assess attorney's fees.
threatening lawsuits against and collecting royalties from people who are arguably infringing those patents
Yeah, another way to phrase this that might be better than 'patent troll' would be 'settlement troll'. The core of the business model requires not only the overbroad/improper patent, but the fact that the expense of litigating the infringement suit is prohibitive for a small company (and maybe not cost-effective even for a big company). So having patents that give you colorable infringement causes of action lets you extort settlements, even if you'd never win any of the cases you bring if they were litigated in full.
18: Intellectual Ventures is a "small company"?
The thread is the problem with the TAL episode. They tainted patent enforcement by suggesting that the patents are bullshit.
Two different issues. Not sufficiently separated in the TAL episode.
8, 9: I don't get it. Patent rights are created to encourage people to develop technologies. If the owner of a patent decides not to develop the technology, and instead sue everyone else who tries to develop the technology, the patent has the exact opposite of its intended effect.
How is this not dickish behavior? It might be legal behavior, but its still clearly dickish.
20:
The reverse is also true. If I have a patented, I am unlikely to be able to successfully fund the lawsuit against Google et al.
This is different from the settlement trolls from the porn industry where they use shame to extort settlements: "You illegally downloaded porn. Pay up or your name is on a lawsuit."
Of course you're infringing, because the Patent Office lets you patent anything. I doubt there's a computer program over 10,000 lines that doesn't infringe.
18: This is completely wrong. Almost all of these patents are genuinely worthless. Big companies shouldn't have these big patent portfolios, but they're also less likely to sue, since a big competitor might retailiate. The patent trolls don't have this deterrent, because they don't actually produce anything.
If patents are to have any value, they need to be bought, sold, and enforced. That's the essence of the right-- it does no good if you can only enforce the right if you actually brought the product to market. If you think the PTO has been handing out patents like gravy, or that it's too easy to amend your claims based on a specification to target products you didn't actually invent, I won't argue with you. But all the "troll" concept means is a party who owns a patent that didn't actually male the product, which covers almost every businesses patent portfolio.
You guys are doing wonderfully at proving my secret thesis: Unfogged would rather talk about patents than Star Wars.
23:
Patent holders do not always have the resources to develop them. So instead of stealing from them, the developer needs to buy it.
A big company with a patent portfolio is fine, but somehow the same right goes to a small company and it becomes a "troll."
21 gets it right. This should re re-written as "A company (regardless of size) with a legitimate business that involves a patent portfolio is fine, but a company whose primary business model is buying patents and then suing everyone who even arguably comes close to infringing them is rightly called a "troll."
If people only apply the term "patent troll" to small companies and not big companies who fail to develop patents, that person is using a double standard, but it doesn't make patent trolling a legitimate enterprise.
I've talked to people in the business of developing fuel efficient cars who have complained that GM was sitting on a lot of efficiency related patents. (This was before the bankruptcy.) Basically they would by an efficiency patent, and then not develop it, because they thought the consumer wasn't interested in fuel efficient cars. But they would still enforce the patent in order to protect their property.
A friend of my parents was actually developing a fuel efficient engine with the sole intent of selling the patent to GM, who would then sit on it and just go back to making SUVs.
Its bullshit that slowed down the development of fuel efficient cars.
If patents are to have any value, they need to be bought, sold, and enforced.
And there must be credit default swaps established, and financial innovations derived.
29:
You keep focusing on "arguably."
What if they only sue those companies who probably are infringing the patent? Is that still wrong?
If the developer can't bring the product to market, they should be looking for a buyer who will bring the product to market. If you are just suing people who try to develop the product, you are still neglecting the property.
Isn't there a tradition in the law of saying that people can lose property rights if they neglect the property?
What kind of crazy "inventor in a garage" notion of innovation do you people have? There are essentially no legitimate patents in software. The only effect of patent law is it makes everyone developing a software product at risk for a lawsuit.
Why should I pay rent? I live here, the owners don't. They didn't build this house, they just bought it. With the intent, I think, of making money from it.
30, 33:
Once again, different issues. There is a process for searching for patents. If you want the patent, you need to buy it/pay for it.
You are mixing up issues. If your issue is the case where someone buys up all the patents in order to prevent the development of a certain process, that would seem to be an issue to deal with .
But that is different.
Yes, 28 is right. Moreover, the right is intended to have people invent things and disclose them to the world. If you want to then use the invention, or can bring it to market faster than the inventor, you can, but you have to pay a royalty. Patents don't just protect marketable ideas -- if they did, there would be little incentive to innovate for anyone except the most already-dominant companies. The system you're complaining about helps keep small company innovation alive.
There's an argument shift here to complaining about invalid patents or noninfringement. And there are plenty of problems with the issuance of patents. But it's just wrong to think that companies are paying out based on extortion for clearly invalid patents or obvious cases of noninfringement (it does occasionally happen, but not much). The "trolls" if they are successful, carefully look into buying patents that actually are valid and where there is actual infringement, because that's how they make their money.
29: The issue there is "even arguably comes close". You could have a reasonable, ethical company that did something structurally similar.
Say Sweet Sue invents a new well cover that keeps the cattle from falling into her well. She doesn't have the capital to start a business making them, but she patents the well cover, making her innovation available to everyone just like the Founders intended, so long as they pay her royalties (which are her incentive to publicize the innovation rather than keeping it a secret.)
Snidely Whiplash finds her innovation in the Patent Office records, and starts selling Whiplash Well Covers. Sue contacts him to ask for royalties, and he twirls his mustache and laughs, saying "Sue me. Get it? Sue me?" She can't afford a lawyer, and soon the bank will foreclose on her ranch.
Our Hero, California Slim, rides up on his white horse and says "I'll buy your patent!" Now Sue has the money she should have gotten from Whiplash Industries, and Slim, who has the money to pay lawyers, can recover his investment from Whiplash by suing them.
In that story, Slim is doing something structurally similar to what a 'patent troll' does, but because the patent is valid and the infringement was real, there's nothing wrong at all with what he's doing despite the fact that he has no desire to make well covers.
34:
If the patents arent legit, then that is an issue for legislation/attacking the Patent office.
But they maintain the property and rent it out.
Think of all the landlords who just sit on neglected properties in slums, bringing down the value of the neighborhood. People have legitimately argued that they should lose their property rights. The squatters movement people say that all the time. (Isn't this thing generally recognized more in the UK and Europe?)
The only effect of patent law is it makes everyone developing a software product at risk for a lawsuit.
Unless they get a license.
,
I realize that I don't know at all -- is there any statutory requirement that a royalty be reasonable? Like, does it have to be a percentage of profits, or can you sit on a patent by saying that the royalty is two trillion dollars?
37: From the fact that almost every software patent has not been invalidated, I think we can conclude that the gap between "legally valid" and "of any worth whatsoever" is pretty large.
39: If it were legal for me to shoot you in the head, would your only complaint be about the legislature?
I'm working with a company right now that's been sued by a patent troll. My client isn't even in the same industry as the technology covered by the patent. They used a vendor once on a trial basis, and that vendor was using a product at the time that, it turns out, arguably infringed on the patent in question. So my client is now being sued (along with all their competitors, of course, any anyone else who used this vendor or any similar vendor, and of course along with the vendor itself, and its competitors).
(Of course my client's contract with the vendor has standard indemnification provisions for IP infringement that are meant to deal with exactly this sort of situation, so the vendor should be on the hook for my client's damages. But it's probably not worth the expense to my client to fight about it.)
They'll settle soon, likely for something in the mid five-figures. Which is a fantastic settlement from my client's perspective, because they just want this to go away, and that's not much money compared to even simple litigation expenses. But multiply it by thousands and it's a lot of money the troll gets at the end of the day.
(Our IP lawyers think the patent is likely invalid, and, that even if it's valid, the infringement claim is very weak, but all that's basically just the gravy on this platter of evil. Everything above would be terrible behavior regardless. Again, the company doing the suing isn't trying to protect the position of any of their own products in marketplace. They don't have a legitimate business. They do nothing but sue people.)
35: That's a good illustration of why analogies are banned. There is a big difference between a piece of real estate and an idea in terms of how many people can use it at once. Isn't there a lawyer (or economist) word for that.
If your issue is the case where someone buys up all the patents in order to prevent the development of a certain process, that would seem to be an issue to deal with .
That is what my issue is. It is also what the company in the TAL episode did, and what I've heard other people accuse GM of doing.
The TAL company owned photosharing patents, but didn't license them or develop the product themselves. They sued anyone else developing photosharing sites.
GM allegedly did the same thing with patents relating to fuel efficiency, only more successfully, because they were bigger.
Again, the company doing the suing isn't trying to protect the position of any of their own products in marketplace. They don't have a legitimate business. They do nothing but sue people.
As in my example in 38 above, if the patent were valid and the infringement were real, the lack of a 'legitimate business' wouldn't make suing over it wrong.
The example in 38 is too innovative and too small in quantity to capture what's going on.
47: The TAL company owned photosharing patents, but didn't license them or develop the product themselves. They sued anyone else developing photosharing sites.
But not to stop photosharing sites from operating, just to get money from them. On the 'goose that laid the golden eggs' principle, a company like Intellectual Ventures has an interest in having technology using its patents out there in the marketplace making money.
It's totally different from GM stopping the development of fuel efficient cars.
46 -- The lawyer word is property. An attribute of which is the right to exclude.
If the patents arent legit, then that is an issue for legislation/attacking the Patent office.
That's all well and good, but if you're facing an actual infringement suit, and the patents aren't legit, it seems like you'd want to be able to use that as a defense in that very action, and you can't if I understand correctly (I have not listened to the TAL episode).
But the way Intellectual Ventures works is that they patent stuff, or buy patents, in bulk. They then wait until someone accidentally reinvents whatever it is that they patented, and then sues. IV has added no innovation to the economy.
The story in 38 is sweet. I like the names. If it's being used as an attempted defense of the actual behavior of any firm operating in the real world, though, it's both comic and sinister. It reminds me a lot of justifications for torture being based on ticking time bombs hidden in the Manhattan subways.
53: Not my field, but I bet you can. The problem is just that litigating and winning is nearly as expensive as litigating and losing, and so it's cheaper to pay the Danegeld.
I only looked in briefly enough to discover that Halford was defending software patents. Seriously, man, it's cool. You need to put food on the table. But software patents are almost as godforsaken a clusterfuck as intellectual property for digital media is.
52: Lawyers are selectively bad at making distinctions.
55: The point of the story, though, is that assuming IV is doing something wrong (and I think it is), you don't want to fix the problem in a way that keeps Sweet Sue from getting paid. You want to tighten way, way up on issuing bullshit patents, you want aggressive fee-shifting provisions, anything like that. But you don't want to make it impossible for a real innovator to enforce her patent just because she can't bring it to market herself.
I'm going to write software to procedurally generate patents, along the lines of those academic gibberish generators. Then I'm going to patent that, too, and then I'm going to sue everybody who files a software patent because the mere fact of filing constitutes evidence that they're using an infringing system of nonsense generation.
You want to tighten way, way up on issuing bullshit patents
Easy enough. Stop issuing them for software entirely.
if the patent were valid and the infringement were real, the lack of a 'legitimate business' wouldn't make suing over it wrong
Not if the party being sued deliberately infringed a patent, using information deliberately obtained from patent office records, as in your story in 38. How often do you think that's what happens?
In most other cases, including virtually all real world cases, suing would be and is wrong.
61: I think the real problem is technically undereducated judges. As I understand it, the Patent Office started out really reluctant to issue software patents, but the courts forced them to.
The situation in 45 is unfortunate: frivolous suits, if this is one, are a bad thing. And you know what breeds ever more frivolous suits? Paying money to the people who bring them, rather than litigating and winning them.
Yes, it's a sensible move for any one party in any one case to pay less than nuisance value to get out of a suit. Too bad the next victim has to pay the price of the next bogus suit.
62: Say it's not deliberate, but it's still real infringement of a real innovation. Shouldn't the original innovator get paid?
63: right, because there's no fucking way that a judge is going to have the sophistication in computer science to be able to accurately judge whether or not a given algorithm runs afoul of prior art. This is leaving aside the insanity of business process patents.
65: But why? If it's so easy for you to reinvent the idea, then what was so great about the original innovation?
53 -- Invalidity is a defense in a patent suit. This doesn't help a party caught in the situation described in 45: a defense you don't want to spend the money to assert is no defense at all.
I assume software can be copyrighted. Are copyrights and patents supposed to work in non-overlapping areas?
It seems like patents are important when the idea is the innovative part, and copyrights are important when the creation is the innovative part. Software seems like it has a foot in both, but that the former is being over-applied.
68: What about a defense that everybody knows nobody could possibly spend the money to assert?
Look, all you lawyers in this thread seem to be assuming when TAL and the rest of us say "wrong" we mean "legally illegitimate and all lawyers should starve."
But you're right that the outrage should be focused on the Patent Office, not on the trolls exploiting the Patent Office's malfeasance.
No, no, no. If there's a legal loophole allowing bad behavior, the main avenue of redress is politics, sure, but those exploiting the loophole should be at fault in the court of public opinion. TAL got IV to admit that in the vast majority of cases, their agreements with companies do not change what they're doing, merely let them continue with less threat of lawsuit. So they're making money by leeching off of others, not helping them, not positive-sum. Again, it's not legally wrong, but it's also not the kind of thing we want Silicon Valley taken up by. And that's a perfectly valid point to build public shaming on.
Not to mention that it's presumably the same people exploiting the lack of good standards for software and business-process patents who are the political roadblock to reforming patent law. The villains are not behind a PTO desk in Alexandria, VA.
70: Well, nobody is an overstatement. It's just very often going to be impractically expensive.
65: if they're not doing anything with the technology, and don't plan to, and the infringement was completely unintentional? Then no, the original innovator shouldn't get paid. Why should they?
A legal loophole is only as bad as its real-world effects. Nor is anyone trying to cast illegitimacy on the patent system in general, so you can lay off the civics-class explanations.
65, 73: Incentive to future innovators to publicize their inventions? It's the whole point of the patent law.
And to 2, I just finished listening to the podcast, and they were only incidentally making IV seem shady because of all the shell companies - the core issue they were trying to bring to light was that they were using shell companies to prevent the public opprobrium of being the entity bringing leeching lawsuits against everyone from redounding on them.
73 -- Because it's property, you commie.
71 -- It's not an "admission" that the owner of the property is collecting rent, rather than making the tenant move out.
Because it's property
Definitely the core of the problem.
75: Incentive to future innovators to publicize their inventions? It's the whole point of the patent law.
Isn't obtaining legal rights to a useful invention that someone might want to use, and therefore would purchase from you, sufficient incentive? Why do you need the additional incentive of being able to squash the independent, unlrelated innovations of others?
I think maybe we're talking past each other on the concept of unintentional infringement. 67 is right.
the Patent Office started out really reluctant to issue software patents, but the courts forced them to
That's really interesting. Cite?
Who was on the other side of these cases, and from how many industries? PTO collects fees and minimizes document-supported complaints about its behavior by saying yes.
77.2: To continue the bad analogy, they're collecting rent even though they don't own the land, didn't build or maintain anything of finance it, didn't do anything that gives them the moral right to claim rents.
70 -- I have no idea what this would be. If you think the patent is invalid, surely you can find a way to explain this to the factfinder. If you think the PTO shouldn't be issuing patents for software, ever, well, you really are going to have to take that up with Congress.
78 gets it right. It's property because we've defined it that way. (And even as currently defined, it's not as if it has all the same legal attributes as real property. Ignoring the distinctions is just silly obfuscation.)
they're collecting rent even though they don't own the land
Huh?
If it's so easy for you to reinvent the idea, then what was so great about the original innovation?
For pharmaceuticals, nothing at all, but FDA clinical trials are expensive, and after that money is spent, the patent protects your investment.
I wonder if there's a way to crowdsource the work of finding prior art to invalidate the troll patents. A lot of people (including yours truly) with some patent experience would be willing to chip in a little time to try to kill the most egregious offenders.
80.1: Sorry, don't have a cite. It was mentioned in the TAL episode, and I remembered it as something I'd heard before. I'll poke around for it.
I'm actually stunned there are so many people here willing to take the side of the patent trolls.
Urple, what distinctions are actually relevant? I mean, it's true that if my landlord sues to collect the rent, I can't argue that the house isn't actually a house. But I don't see where that gets you in the conversation: an infringer has better rights in court than a trespasser. So what are you complaining about?
Put it another way: what has anyone, on TAL or on this thread, proposed that would keep genuine inventors from protecting their legitimate rights?
90 -- 'Ownership of the land' is the one thing that the 'troll' does have.
45: They don't have a legitimate business. They do nothing but sue people.
Urple, you work for a law firm, don't you? Even if it does a few things other than sue people . . .
88: It's a series of fact disagreements. No one's 'taking the side of the patent trolls', there are just people who think that something like my story in 38 describes more of the landscape than you do. And who have less vehement opinions on the wrongness of all software patents than the people who work in the industry do. (I do agree, based on people I trust rather than knowing anything myself, that software patents are either uniformly or almost uniformly crap.)
How general purpose can software code be and still be granted a patent?--or, at how high a level of abstraction?
Like, could the guy who first formulated Qiucksort have patented it?
At that point, you're basically patenting mathematical proofs, which, you know, RIGHTFULLY BELONG TO ALL RATIONAL BEINGS.
87: Like all things, it's explained at Wikipedia.
TAL did mess up by not identifying the obvious solution, but nobody's going "A bas les patent courts! Ecrasez les royalties!"
91 -- You're right. Whining about 'trolls' isn't going to do any harm. Defendants often (always?) whine about being sued, whatever the theory.
Urple, what distinctions are actually relevant?
Well, for one, unlike your title to your house, your patent self-destructs in 20 years. You could as easily be complaining: "Why should an original innovator get paid in year 19 but not in year 21??! It's property, goddamit!!!! Property isn't supposed to just vanish like that!!"
There are other distinctions, too, of course. But this is a silly exercise. You know as well as I do that these are all just legal constructions, and appealing to those constructions (PROPERTY!!!) as if they were meaningful answers to questions doesn't get anyone anywhere. (Unless they're looking for answers about what's currently legally permissible, which no one here is doing.)
It's not land. Are you really arguing by analogy here?
95: These days, you could probably patent quicksort. (And I mean that literally -- if you filed a patent for quicksort, it would probably be granted.) The RSA public-key encryption algorithm was patented. The LZW compression algorithm was under patent, which is why Unisys could ask for royalties for GIF.
In theory, mathematical proofs are not patentable for the reason you give, but this doesn't seem to offer any practical constraint.
94: But it's a series of factual disagreements between, on one side, people who know the actual facts, and on the other side, people who want to shift the argument to a generalized argument about patentability.
I'm going to write software to procedurally generate patents, along the lines of those academic gibberish generators. Then I'm going to patent that, too, and then I'm going to sue everybody who files a software patent because the mere fact of filing constitutes evidence that they're using an infringing system of nonsense generation.
I'm pretty sure I read about someone filing a patent-filing patent on some tech site. I think it was business method rather than software, though. Can't recall if it was granted.
I don't think software should (generally) be patentable. Copyrightable, sure, in many cases (e.g., finished video games). But that's irrelevant to the question under discussion, which is about patent "trolls."
The story Urple tells is basically the same defenseawyw story you get in any case. God, that woman's sexual harrassment case was bullshit We just paid her off a tiny settlement to avoid litigation costs! Damn those contingency fee lawyers and other laws! And you know what, it does happen -- sometimes people can exploit legally enforceable rights in questionable cases. But that's the cost of doing business in order to have the right. And, as LB pointed out, if the patent were valid, and if Urple's client was infringing, of course it should have to pay, regardless of whether the party bringing suit is a "real" company.
Requiring knowledge of the patent to show infringement would kill the system -- the entire point of the patent system is that it provides a legal means of automatically publicizing the invention, allowing the inventor to secure the rights to the invention without having to otherwise promote or publicize it, and allowing others to use the invention in exchange for a reasonable royalty.
I've both represented and defended against patent "trolls."They put a lot of time considering infringement and validity, since those are the key defenses in any patent litigation. I don't know IV specifically but their portfolio is probably a mix of questionable things and legit patents that they've bought from small companies who really
did invent something real but are now out of business or otherwise disinclined to sue.
There are plenty of real, giant problems with the system. IMO, the biggest one is allowing claims that bear no relationship to the specification, and then allowing for amendment of claims to write onto existing inventions
The
100 -- Yes of course it's different from fee simple absolute. But the differences don't have any bearing at all on the conversation. A life estate holder can bring an action is trespass. A patent infringer can assert invalidity. These have nothing to do with the question whether an investor can or ought to be able to buy what we all consider property and enforce the legal rights that pertain thereto.
99: True; the episode could languish as much as most whining does, largely because it doesn't point to next steps. But stuff like it - identifying the concrete harm these practices cause - will be indispensable to any reform effort.
People aren't taking the side of the patent trolls per se, but they do seem to be saying that what the patent trolls do would be legitimate if the patent were legitimate. In other words, if you had a legitimate patent, you can protect it, even if you don't intend to either develop it or license it.
I think that's stupid. Property rights are created for the public good. If a property right is blocking the public good it is supposed to promote, something has gone wrong with the development of that right.
I still don't see the difference between (1) what GM is accused of doing (2) what the TAL company was accused of doing and (3) and landlord who doesn't rent the property, live in it, or develop it, and instead just puts up 'no trespassing' signs
(As I have said before, I am a fundamentally analogical thinking, and the analogy ban was created to silence me and my kind.)
108: The difference is that asking for royalties is the equivalent of renting, not of putting up 'no trespassing' signs. A patent holder wants (generally, barring pathological cases ) people to market products based on their innovations, because that's how the patent holder gets paid. If no one uses their innovation, no one pays royalties, and the patent holder gets nothing. So the patent holder's incentive is to get the royalties, but not to ask for enough to shut the companies using the technology down.
To people really think that there's no moral difference between a large company that does 99% productive things and 1% negative-sum unproductive evil things, and a smaller company that does 100% negative-sum unproductive evil things all the time?
To s/b Do. Argh.
The entire concept of property is a giant analogy and it's getting us nowhere (in this thread).
A patent holder wants (generally, barring pathological cases ) people to market products based on their innovations,
But that's what these trolls are, the pathological cases. IV did not license their patents.
GM was also accused of to licensing patents, although, if true, their motivations are more obscure. They didn't develop them, because they didn't think they were marketable, but at the same time, they didn't license them, because they didn't want competitors to have them in their cars (which would only make sense if the patent actually had value..)
It is not unlike the state of British libel law - when you take a basically sensible and well-thought out common law right, and push it up against an extremely inefficient and expensive court process, you create a weapon which can be used by the unscrupulous.
(this sort of thing was taught at Oxford as the Achilles heel of the Coase theorem - in principle it doesn't matter whether the polluter has the right to pollute or the other party has a right to a clean stream because they will settle on the same optimal negotiated outcome. In practice, bads are a lot easier to produce than goods, and so if certain kinds of bads carry the right to be paid to go away, people will produce them).
landlord who doesn't rent the property, live in it, or develop it, and instead just puts up 'no trespassing' signs
Does it really happen that property owners like that lose their property in the U.S.A? That sounds communist!
The law is all about analogy--that's what precedent is all about.
The analogy ban also seemed to assume that analogies can only be used to illustrate. But arguments by analogy can perfectly cogent. That's a basic tenet in the study of reasoning.
The difference is that asking for royalties is the equivalent of renting, not of putting up 'no trespassing' signs.
Except that asking for royalties is closer to renting out a public park than a private dwelling.
108.2 -- the key difference is the concept of royalties. Patent holders, generally, don't say "you can't do x at all."*. They say," do x, but pay me some royalty on the profits, since I had the idea first.". A 5% royalty would be, in most cases, extremely generous.
*For a while, in the 1990s and early 2000s, it looked like the Federal Circuit would allow patent holders to enjoin uses at will. The Supreme Court rightly shut that down.
**I'm hearing this second hand, too, but my understanding is that your friend's story about GM is wrong.
113:
I think you have it backwards. The not licensing falls on the infringer, not the owner.
Unless the owner is refusing or asking entirely too much.
113: I don't think that's right -- they didn't refuse to license patents if approached. They (and I'm assuming, which is a very questionable assumption in IV's case, but it's what we're talking about for the moment, that the patents were valid and the 'infringers' were really infringing) found people who were infringing their patents, and who should have approached them proactively and asked to license the patents rather than using the technology without license; they asked for payment to cover the unpaid royalties; and then threatened to sue if the royalties weren't paid.
Again, the intent wasn't to prevent use of the patented technology, it was just to get paid.
(I know the analogy ban is here for a reason... But surely the analogue of patent trolls isn't landlords but *title trolls*. That is fictional people who manage to find and purchase titles to property which are obviously invalid but expensive to litigate. (Of course, this wouldn't happen because judges understand history but not technology.))
The GM story has an urban legend feel about it, but I think it works in this argument even if it is just a hypothetical scenario.
118: Assumes the invalidity of the patents. If the patents are invalid, that's the problem. If they're not, it's a private dwelling.
The analogy ban also seemed to assume that analogies can only be used to illustrate. divert everyone's attention and start arguing about the accuracy of the analogy.
they're collecting rent even though they don't own the land
it is possible to do this; google the phrase "ransom strip".
Whoa! I don't look at Unfogged for 12 hours and look what happens!
Halford and Charley are doing an excellent job of expressing my opinions about patents and trolls so I won't repeat the same arguments. I'll just add some things that I don't think were addressed based on skimming the thread.
First, if you think a patent is invalid, instead of participating in the lawsuit you can try to trigger a re-examination at the patent office (PTO), which is MUCH cheaper and will only cost you (as the person being accused of infringement) if you're a third party in the re-exam.
Next, prosecution is much much better than it used to be. Under Bush's appointee, John Dudas, prosecution was horrible because Dudas' approach to criticisms that the PTO was doing a bad job was to stop issuing hardly any patents. Clearly that is not the solution. Under Obama's appointee, Kappos, things are much better. Good patents are being issued. It's a rare occasion when I think the examiner is allowing claims to issue that are overly broad.
I want to talk about the history of software patents, but that will be a longer post.
Requiring knowlege of the patent to show.infringement would kill the system
I reiterate: who the fuck is proposing anything like that?
There are also "Newspaper masthead trolls". The Guardian publishes a newspaper called "The Sunday Guardian" with four pages, twice every year, in order to protect its rights to the name if it ever wants to launch a Sunday edition. (Which could be no joke - now that the News of the World is no more, the local paper in Newcastle called the "Sunday Sun" are in quite the driving seat with respect to the on-off talks they have been having with Murdoch for the last thirty years).
98: Guns don't kill people...
... rappers do,
I seen it in a documentary on BBC2,
Shot to death outside Hyper Value,
Guns blazin like Michael Caine in Zulu...
124: No, that's entire my point: no matter how valid the patent is, it most certainly does not become a private dwelling. Now, yes, legally, under the current regime, it gains a set of rights very similar to the set of rights that go along with a private dwelling, but even so, it doesn't actually become a private dwelling. Metaphysically, it's still something different. And those differences are still relevent, even if the law doesn't adequately distinguish them. Unlike a private dwelling, the information contained in a patent is nonrival, for example. So just asserting "it's property" and arguing by analogy to private dwellings while obscuring all the differences doesn't get very far, at least in a discussion of right and wrong behaviors. Again, that would get you further if we were having a conversation strictly about what is and isn't legally permissible behavior, but no one here is having that conversation.
The point of patents isn't to give people property, it's to "To promote the Progress of Science and useful Arts." Software patents are obviously doing completely the opposite. The end result is that only companies with existing large patent portfolios can do stuff (because they have the ability to counter-extort).
We need to ban software patents, get rid of patents for federally funded research, eliminate medical patents (and replace them with a prize system for new medicine that does useful things better than the existing standard of care), bring back the public domain (e.g. copyright lasts for 20 years and you can pay a fee to renew in 5 year intervals where the fee increases say quadratically in time), and shoot people who use the word "intellectual property."
128: Walt and Urple were, in 67 and 73 (both responding to my 65).
Probably my last post for a while: property is not sacrosanct; it's an expression of the community's will. If property rights are acknowledged to be causing harm in specific cases or categories, they can be modified or revoked. If anything like this happens, it will be through more or less public processes that all stakeholders get to pore over to make sure true innovation is not being hurt, not by haphazardly hacking away at patent law.
So next, software patents and the court. There has been a HUGE fight over software patents and business method patents. The problem being that they were found to not be statutory subject matter under 35 USC 101. The arguments against them were that you can't patent a mathematical formula. The argument for them is that it's not the formula you're trying to patent - it's the application of the formula. There were fights involving the patent for the telegraph, this has been going on so long!
Back in 1995 the Federal Circuit (which is the court that handles all patent appeals since 1982 and which is the court below the Supreme Court for patent matters) held in State St. Bank that you can patent business methods with claims that include the physical structure being used to perform the steps. E.g. a processing module for calculating an increase in a stock price. The Supreme Court never ruled on this case and in last year's Bilski opinion they declined to overrule this case except where it disagreed with Bilski.
So fast forward to 2010 when this guy tried to get a patent on evaluating commodities in the energy market. The Supreme Court held in Bilski v. Kappos that you can obtain a patent on a business method or software but only if the method satisfied the machine-or-transformation test. This means that either a transformation must occur (which is better reserved for things like chemicals) or the method has to be tied to a machine. So now you can get method patents where the steps say "performing with a processor x."
This means that either a transformation must occur (which is better reserved for things like chemicals) or the method has to be tied to a machine. So now you can get method patents where the steps say "performing with a processor x."
How does that work? Do you list all the chips on the market? Is it not infringement if someone uses an unlisted chip?
Here's a question that might be helpful. Are there well-known companies that exist to do nothing but own patents and threaten to sue people for violating them in businesses other than the software business?
Also, why do some of you hate software patents so much? Why are they different from any other type of patent? Do you realize how important patents are in the determination of whether to give venture capital to a start up? Since software is some of the easiest technology to steal, why would you ever invest money in a software company if they didn't have software patents?
138: I'm not explaining that part correctly, sorry. A method claim has steps that look like this: "receiving information from a server; and generating an x based on the information." As a result of Bilski the claim should now recite "receiving, with a processor, information from a server; and generating, with the processor, an x based on the information."
131 -- The fact that the contents of a patent are non-rival -- and, as you say, this is the essence of the patent system -- says nothing at all about the patent owner's right to enforce his property rights.
You think investors shouldn't try to realize the value of their investment. Or is it that you think people shouldn't invest in valuable property, and then try to realize the value of their investment?
110 et al: Patent trolls are generally good things because they permit innovators to receive payment without preventing the patented product from being used. Patent trolls profit only if the patent is used.
Maunfacturers who own patents are frequently evil. They make money by preventing innovations that hurt their existing products. They have an incentive to prevent the patent from actually being used for the benefit of consumers. The Genereal Motors example above is a good example.
Using patents to jack up prices and prevent improvements is also common among drug manufacturers. Ther brand name company has a drug patent expire and a generic company enters the business. The price drops by 90%. The brand name then sues the generic claiming that the manufacturing process of the generic violates a different patent, which is still in force. The result is the brand name gets its monopoly back for a while and the price goes back up 900%.
(Then my firm brings an antitrust lawsuit against the generic and the brand name for collusively entering into a sham settlement, Google "wellbutrin antitrust" for some stories. )
140: I think in many cases it dates back to last week when This American Life quoted various software engineers as saying that software engineers all think software patents are useless and counterproductive. So some people are still open to being convinced otherwise.
If I'm correctly understanding 142, which I may not be, 132 perfectly encapsulates my response. Especially the first sentence, which ought to be in bold and also copied and pasted into every single comment in this whole damn thread. I actually hadn't bothered to say it, because it seemed obvious, but maybe it's not.
The method by which a patent advances science etc is its status as a property right that can be exploited for gain.
I'm going to patent the analogy ban. You'll all be hearing from my lawyers shortly.
146 is right, but incomplete -- there's nothing that says that the way we currently define and issue patents is necessarily the best way of advancing science etc. If there's an argument that the way we issue software patents is systematically retarding innovation and hampering the introduction of new products, rather than the reverse, the current law should be changed. And (again, relying on people I trust in the industry rather than my own knowledge) I think it's probably the case that the current law should be changed as it applies to software patents.
Are people basically saying that there is no such thing as a patent troll; there are only companies using a legitimate business model of buying and licensing patents?
Patent trolls aremight in some alternate theoretical world in which there were only valid patents and vastly lower costs of defending claims be generally good things because they permit innovators to receive payment without preventing the patented product from being used. In th e real world, however, Patent trolls profit only if the patent is used regardless of whether the patent is used, because most of the people they sue aren't "using the patent" in any meaningful sense, they're using somewhat similar technology that they developed independently (which may or may not actually "infringe" the patent in question, which is an issue entirely separate from whether the patent in question is something that should have been issued in the first place).
Software patents are 100% innovation-crushing for the software industry. If you're programming something and come up with a clever way to accomplish something in the course of your programming, 100% you're infringing on somebody else's patent. If you were to attempt to write completely non-infringing code, you wouldn't be able to make anything that worked. The patents that are issued are too broad, and the issues they cover are too fundamental. Junk the whole fucking thing and then you know what will happen? A lot more goddamned startups.
I keep not reading this thread and then weighing in grumpily. I'll go ahead and stop doing that.
Are people basically saying that there is no such thing as a patent troll; there are only companies using a legitimate business model of buying and licensing patents?
Of course. The argument is "If it's not illegal, it's not illegal."
get rid of patents for federally funded research
Amen. At the very, barrel-bottom-scrapingly least, auction them.
148 -- I'm totally fine with fine tuning the rules of patenting software, and make no pretense of expertise sufficient to form any views at all about how much of that ought to be done. I think invalidating existing patents based on a rewriting would be questionable: investment backed expectations, and all that. Revolutionaries don't have to concern themselves with such things, obviously.
I'll go ahead and stop doing that.
Which part?
150, again, appears to assume that the only legitimate claim of patent infringement is against someone with actual knowledge of the patent, which is just not how the system does or is supposed to work (since requiring such knowledge would defeat the entire purpose of the system). In fact, (much at least) of what patent "trolls" do is sue people who are legitimately infringing valid patents, even if they lacked knowledge of the patent.
A method claim has steps that look like this: "receiving information from a server; and generating an x based on the information." As a result of Bilski the claim should now recite "receiving, with a processor, information from a server; and generating, with the processor, an x based on the information."
Not to speak for LizSpigot, and lord knows I'm a litigator with just a little patent experience, not a patent prosecutor, but it might be helpful to explain why this difference is significant. A patent has two basic parts -- a "specification" that describes an invention, usually with a picture, and "claims" that describe, in written language, what you think the invention does. You "infringe" a patent by doing something that meets each element of what is described in the "claims." The patent office checks out the claims to make sure that they are directly related to the specification -- an overbroad "claim" is one that creates a legal right to enforce infringement on things that go well beyond the invention described in the specification, and the PTO examines patent applications to, in theory, make sure that the claims aren't excessively broad.
So, what the Supreme Court did in Bilski was require an additional step in the claims in order to have a validly patentable invention, which in turn requires an additional level of specificity in the specification. It's a way of narrowing the scope of what can and can't be patented as software (or another "business method") and linking it more directly to mechanical invention.
First, if you think a patent is invalid, instead of participating in the lawsuit you can try to trigger a re-examination at the patent office (PTO), which is MUCH cheaper and will only cost you (as the person being accused of infringement) if you're a third party in the re-exam.
Is it really going to be much cheaper? Surely the main expense is going to be paying lawyers to dig up evidence that the patent is invalid, which is going to be the same whether you do it through the USPTO or the courts.
Since software is some of the easiest technology to steal, why would you ever invest money in a software company if they didn't have software patents?
Really? Software patents only became solid law in the US in the 90s - there didn't seem to be a shortage of people making and funding software before then. Nor is there now, when chances are that no matter what software you're making, you're infringing on someone else's patent.
They... found people who were infringing their patents, and who should have approached them proactively and asked to license the patents rather than using the technology without license
So, take the example in the TAL programme of the 3,000 patents covering remote back-up. If you develop a remote back-up service, you're supposed to approach all 3,000 and pay them? Even though the patents, if asserted are in conflict?
I'd certainly agree the main problem is with the PTO granting patents for things that aren't inventions, but that doesn't absolve people taking advantage of those problems of moral responsibility.
Since software is some of the easiest technology to steal, why would you ever invest money in a software company if they didn't have software patents?
Because the actual underlying technology is only part (and probably not even the most important part) of what makes a software company successful?
Wow! Patents are the new swimming feminism. Who would ogged ban?
158: It's a way of narrowing the scope of what can and can't be patented as software (or another "business method") and linking it more directly to mechanical invention.
As Liz described it (and lord knows I don't know what I'm talking about firsthand), it doesn't sound as if the new requirement narrowed anything at all. Requiring the claim to say "by means of a processor" sounds like the equivalent of requiring that it say "At some point, this mathematical abstraction will have a detectable effect on the material world." True, sure, but it's going to be true of anything at all.
whether to give venture capital to a start up?
Software is easy to steal because it is easy to develop. It is not at all clear to me that the software industry is starved for capital. Consequently, VC funding of software at least sometimes produces money chasing ideas rather than ideas chasing money.
Linux was written without access to capital markets, and its main distributors were not well capitalized.
People here hate software patents because they cause problems in normal working life without particularly having compensating benefits; I believe that access to capital markets for software is not especially a benefit.
Further to 95, 102: apparently there actually is a patent on a quicksort when implemented on linked list, rather than an array: Link. Craziness.
162 -- I don't think so, and that's what I was trying to explain (very possibly incorrectly, and Liz can correct me if I'm wrong). By adding the additional requirement to the claim, you're also in effect requiring that the specification describe something with a little bit more precision. For example, pre-Bilski, your specification could just be a flowchart showing your method for acheiving software result x. Now, your specification needs to actually show some kind of mechanical means by which you acheive software result x, and the claims that you base on that specification will as a result be more narrow, since the PTO is watching over you to make sure your claims are based on the specification.
159.1: It's incredibly easy to dig up prior art. Way easier that paying a lawyer $500 an hour to write motions, complaints, responses, etc. A re-exam costs about 50k when you own the patent. For a third party it would be much less. A lawsuit costs millions.
195.2: The 90's, are you kidding me? The Internet was barely functional in the 90's. What percentage of the US economy back then do you think was dedicated to software?
165: Your explanation is right. Bilski does narrow the scope because there are many patents written by bad patent attorneys that don't mention computers at all. So now those patents are invalid.
In addition, attorneys that aren't careful can wind up narrowing the claims if they're careless by throwing a processor into all steps. This is narrowing because now all the steps have to be performed on a single computer.
There are many inventions that work by doing a little processing on the user device (e.g. iPhone), a little processing on one server (e.g. Facebook) and a little processing on a second server (e.g. an application that runs in Facebook).
I don't understand this mechanical means business... By Church-Turing anything you can do on one computer you can do on another. Can the machine be a Turing machine?
Software developers hate software patents because so many software patents are trivial "inventions" that any practitioner skilled in the art can and does create for themselves in the usual course of business.
And there are so many of them, and they are described in such a broad way, that essentially everything you do in the course of your work has already been patented. The only way anyone can sell a product without getting sued is that the patent holders haven't got the time to sue anyone. So the whole system is just a depressing burden on any software business.
Suppose that you are writing a game for a mobile phone. Can you collect data from your users? Not so fast! That violates U.S. patent 7,222,078. Can you have an online tournament in your game? Better not: it violates U.S. patent 6,425,828. What about purchasing items online? That one's owned by Amazon. Perhaps you were thinking that it would be nice to allow the user to play their own music instead of yours? That's covered by U.S. patent 7,663,045.
All of these patents, and hundreds of thousands more, cover things which are entirely straightforward to implement using standard techniques. Once you've decided, say, that you want to allow the user to play their own music, the steps to implement it are completely obvious (separate the music and fx audio streams--provide a user interface for selecting a track--mute the game music). You don't need to read the patent to figure it out: you figure out more complicated things than that every day.
So what can you do? You can't afford to licence the thousands of patents you are no doubt infringing. You can't even afford the time to search for the ones you are infringing and read them. You can't work around them: generally they are expressed in such broad ways that they cover any possible way of achieving some result. All you do is ignore the issue, hope no one notices, and then shut down your business if you get sued.
(There are of course software patents that deserve the protection. Something like the MPEG algorithms, representing years of research. I think all but the most radical would agree that these are reasonable. It's the enormous bulk of utterly trivial ones.)
167: But if you draft carefully, you could satisfy Bilski while still being as broad as you could be in the absence of Bilski, sounds like. It adds a degree of difficulty to the drafting, but does it necessarily narrow the claims that are being made?
195.2: The 90's, are you kidding me? The Internet was barely functional in the 90's. What percentage of the US economy back then do you think was dedicated to software?
Er, what? You think that the software industry began with the popularization of the consumer internet? I assume this is some weird joke, like the joke where all the software engineers are like "yes. Software patents are horrible and make working on software horribler." and all the lawyers are like "nooooo, without software patents you wouldn't be able to write software at all!"
Crap.
I'm doing it again.
167.last perfectly illustrates the idiocy of this whole business. Of course anything you do just on one computer you could instead do on several computers. There's no invention involved there. (Just like there's no invention in saying you can quicksort linked lists instead of arrays.)
If you have something that should be legitimately protected then it should still be legitimately protected if it involves several "computers" (if the notion of "a computer" even makes sense in the age of multiple cores, networks, and virtual runtimes), while if it's not something that should be protected then you shouldn't need to specify which "computer" (again the notion doesn't even make sense) is doing things.
(I have nothing to contribute but I am finding this thread unbelievably fascinating.)
I'm doing it again.
oh, so you meant the grumpy part
Can the machine be a Turing machine?
I certainly hope that patent applications that rely on physically impossible devices are rejected.
Let's take these one by one.
We need to ban software patents
I don't know enough about software patents or the software industry to have a very firm opinion on them. From my vantage point, it does appear that there are tons of overbroad and bullshit patents, and the software engineers here seem to be backing that up. Much of the subject matter of software seems to me to be much more akin to creative expression created by copyright, and better protected by the copyright laws (e.g., you can't just copy someone's program in its entirety and remarket it, but you can use ideas and methods contained within the program without infringement). But surely there are some software inventions that are legitimately patentable.
get rid of patents for federally funded research, eliminate medical patents (and replace them with a prize system for new medicine that does useful things better than the existing standard of care)
A prize system for medical innovation could work, but would need to be extremely carefully designed and extraordinarily generous in order to even possibly replace the current patent system. The same is true for federally funded research -- you'd need more funds to cover that change in the system. The proposals I've seen are all extraordinarily pie in the sky on the actual funding issues. A better move for medical patents would be to have some kind of compulsory licensing at a fixed rate -- i.e., the government can declare your drug a medical necessity and license it at a pre-fixed rate, which ideally would be set up to track overall health results rather than consumer demand. In any case, that's a reform that companies could conceivably live with.
, bring back the public domain (e.g. copyright lasts for 20 years and you can pay a fee to renew in 5 year intervals where the fee increases say quadratically in time), and shoot people who use the word "intellectual property."
This would do way less than you think and would also not be particularly harmful to the major intellectual property owners -- most would probably trade a longer total term for a 20 year period with 5-year renewals for a fee. The problem of "orphan works" is real but not overwhelmingly significant, economically or culturally. The better solution here is compulsory licensing combined with an ASCAAP like agency for all works, not just musical performance. That would effectively and quickly end the holdup problems for, e.g., sampling and use of archival materials, while providing the original rights holders with some compensation.
The complaint about the term "intellectual property" is stupid, mostly because it reflects people not thinking very hard about what real property is, but I've had this argument with Tweety before. I also don't think it matters very much. You can call it "Joe" but short of socializing the entire economy you need a method for creating marketable property interests in intangible goods.
Much of the subject matter of software seems to me to be much more akin to creative expression created by copyright, and better protected by the copyright laws (e.g., you can't just copy someone's program in its entirety and remarket it, but you can use ideas and methods contained within the program without infringement). But surely there are some software inventions that are legitimately patentable.
Hey, what am I in 69, chopped liver?
The complaint about the term "intellectual property" is stupid, mostly because it reflects people not thinking very hard about what real property is, but I've had this argument with Tweety before.
I don't know about that. I had a very stupid argument with a professor in law school who was contending that of course drug developers had a Fifth Amendment right not to have the data from studies they conducted on their drugs for FDA approval made public without compensation, because that data was their intellectual property. I don't think he would have been so misguided if the term "intellectual property" didn't get thrown around so loosely.
Oh shit, I infringed. No, I just missed it, but 69 is basically my view and impression as well, although as I say I don't know the software patenting world particularly well.
So long as we can have springing executory interests in Joe.
The complaint about the term "intellectual property" is stupid, mostly because it reflects people not thinking very hard about what real property is, but I've had this argument with Tweety before.
Yes. And I believe that my conclusion was that your theory that the complaint about the concept of intellectual property is based on people not thinking about the concept very hard... is stupid. That's okay, though. You keep being you, and I'll keep just innovating the shit out of things.
and I'll keep just innovating the shit out of thingsinfringing hundreds or possibly thousands of patents.
I admit that most of the thinking I've done about so-called IP is related to academic publishing. There the situation is:
Historically mathematicians (and scientists) gave away the right to physically print our work on physical printing presses for a limited time to journals run by people or small organizations which were interested in advancing knowledge. Large profit-seeking organizations with no ethics (in fact, legally required not to behave ethically) and with no interest in knowledge have (in collusion with the government and with an assist from other large media companies) stolen our work and now own the sole legal right to post our work on the internet forever. As a result they have us over the barrel and are able to charge us extortionate rates for our own fucking work.
My impression is that the software situation is similar: the actual innovators (software engineers) can't use their own fields ideas freely because a bunch of lawyers in collusion with the government has locked them all up in bogus patents. But I'll admit I haven't thought about it as thoroughly and the passion comes from the case that I do understand.
Shockingly enough, I'm with 132 and similarly radical statements. I'd go further: abolish patents entirely. Individuals innovate because humans are creative, innovative beings; companies innovate when they are forced to, in order to survive in a competitive marketplace. The lack of robust IP-ish protection in the fashion industry accelerates, rather than dampens, the cycle of innovation.
As for this:
Also, why do some of you hate software patents so much? Why are they different from any other type of patent? Do you realize how important patents are in the determination of whether to give venture capital to a start up? Since software is some of the easiest technology to steal, why would you ever invest money in a software company if they didn't have software patents?
Of course once you've set up a legal system that lets people extract money by getting patents, getting patents will be a huge part of any profit maximizing business strategy. That tells you nothing at all about what the world would be like without patents. Listen to the software folks in this thread: patents contribute nothing useful, and are seriously harmful.
The transactional part of the legal system is like the financial system--it ought to exist merely as an adjunct to, as lubricant for, the productive part of the economy & society. It has no value in itself, and its priorities ought not shape its own development. LizSpigot seems like a completely delightful person from her comments at the Mineshaft, but her profession ought not to exist; that's no knock on her, but simply a fact that, tragically, wonderful and talented people are, due to our system, diverted into pursuits that are socially destructive (just as far too many people end up in the military).
a professor in law school who was contending that of course drug developers had a Fifth Amendment right not to have the data from studies they conducted on their drugs for FDA approval made public without compensation
Isn't the problem there that the drug developers have no conceivable property interest in that data? If the government was seizing, e.g., the copyright to films or patents without providing any compensation, I think there would be a fifth amendment problem, just as if you were seizing someone's personal property.
I'll keep just innovating the shit out of things
How's that robot coming?
184: Here's the story that tells you why patents, generally, are a good thing. The family that invented obstetrical forceps kept them a secret for a century and a half, because it was their only way to keep making money off them. If they'd been able to patent and license them, the invention would have been made public, and a lot of babies would have lived who died instead.
That doesn't mean that the system is perfect, or that it doesn't need to change. But if you're talking about changing it, you do have to recognize that it's not pointless.
(It's easy to say that kind of stuff, of course, when one's never had a job. The purity of the layabout!)
184: And so 149 is answered: everyone with a patent is a troll.
185: The point is that the professor believed in some vague non-statutory concept of 'intellectual property', which people had natural, intrinsic rights in by creating (as by doing research that produced data), as opposed to the tightly defined and artificial concepts of patents, copyrights, and trademarks. The loose, broad, term facilitated his stupid.
But if you're talking about changing it, you do have to recognize that it's not pointless.
Except, at this point in the evolution of software engineering, for software.
188: Even if you think all patents are wrong, it does not follow that everyone is a patent troll. A patent troll is an entity *who provides no good to society* and only survives by taking advantage of the patent system. It's not so hard to understand. If 1% of what you do is trolling, that doesn't make you a troll.
With that, I'm off to invest in a contingent remainder subject to condition precedent in Joe. Or maybe just have lunch.
185.last: I've gotten distracted, as you might imagine, by work/school. The stuff we're doing here at work/school though, is innovative as hell, and also only incrementally different than the work of many, many people before us, who I have no intention of ever giving a dime to.
I admit that most of the thinking I've done about so-called IP is related to academic publishing.
This seems to be the case for many academics, and it's important to remember how unique the academic publishing world is. It's also totally unclear to me why the universities and academics put up with it, aside from traditionalism and weird guild practices. Stanford could just set up a $3 website called the "Stanford Journal of History" and have academics post refereed, peer review works there that would be in the public domain forever and would get whatever boring articles are in the journal out to a broader public. Since academics (unlike, say, many artists or authors or moviemakers) are primarily interested in the dissemination of their ideas and get paid for doing pure research and teaching, and have no expectation of earning money from academic publishing, it's a mystery as to why they tolerate the current system.*
*Obviously, this wouldn't apply to the ownership interests in past works, but there's literally no reason whatsoever for 90% of academics' complaints about copyright on a going-forward basis.**
** A conscientious group of professors could, say, publish a good Econ 101 textbook under a creative commons license and distribute it for free over the internet, allowing students to purchase a $75 textbook for a $5 binding fee. This would be a big problem for Pearson but there's nothing in the law that's preventing them from doing so.
191 -- The 'troll' has paid the inventor (or assignee) for the patent. That's not 'no good.'
Companies bundle all their journals together (including back issues) and sell them as a single unit to universities. So unless you could get all journals to do this simultaneously you're only going to end up spending more money (the money you were already spending on the old journals plus your new money on "Stanford Journal of History"). And even if you did get everything to switch, the big companies could still just charge the same high rates for the back issues which you still need!
Also, old people don't understand anything (cf. judges and software) and young people just want to get jobs.
183. Learned society publishers are by and large no better. Journal politics and prices are real problems, but it's more complicated than greedy suits.
185. The studies FDA keeps private identify subpopulations which may actually have been genotyped or which could now be cheaply genotyped, where treatment failed or required modified dosages. (Oh look, the lactose-intolerant need twice as much). This subpopulation information is valuable both for developing treatment and as a source of future profit. What and how the FDA should publish is the focus of a great deal of attention for practical reasons.
196 makes no sense to me. I'm talking about creating new, free journals to solve the problem on a going-forward basis. Just put your article or a new journal on the internet and into the public domain, if you're concerned about disseminating it to the public. It wouldn't affect the prices the publishers could charge for their former, bundled journals, but you'd be better off going forward. Of course, the new, free "Stanford Journal of History" would have to be as prestigious a location for publishing your research as the old, nonfree "American Historical Review" but that's really a problem of weird prestige and guild practices among academics, not something that they couldn't get around as a matter of law.
And there's no reason (except the desire to get rich) why academics couldn't publish public-domain textbooks.
Here's the story that tells you why patents, generally, are a good thing.
The story does nothing of the sort. They kept it a secret to preserve a competitive advantage for their family, yes. Maybe a patent right would have encouraged dissemination, but maybe not--after all, a modern patent wouldn't have secured them their monopoly for nearly so long. If we want to know what was dysfunctional about 16th-18th century medicine, and what kept good practices from being more widely used, the lack of legal exclusive rights is far down the list; the Chamberlen family's behavior is more simply a reflection of a pervasively guild-like profession doing what guilds do.
Look, it's perhaps true that in times and places where, due to technological and social constraints, getting information out there is difficult, patents may be less harmful than otherwise; here and now, as the whole "troll" label suggests, it's about putting up tolls on bridges that would get built anyway. A more useful example is how Watt's steam engine patents quite likely delayed the technology's development.
it's a mystery as to why they tolerate the current system.
196 is right, in part -- there's a lot of still-important older stuff that I need that is locked away in Elsevier journals, for example. For most of grad school my university wasn't paying for access to them, but I could usually find the old paper copies in the library.
There's another annoying aspect of this, though, which is that people seem perpetually convinced that other people think preserving the old system is important, so they do it themselves. Basically every person in my field only reads papers on arXiv now anyway. But we all still submit to journals on the theory that hiring committees or funding agencies or people in other fields who might be involved in tenure decisions care about the journal publications. I tend to think that if we all just stopped publishing in journals, the culture would adapt. (I just got two super-ignorant referee reports back, which has me even more anti-journal than I usually am. Peer review really is almost entirely worthless in my field.)
198.1 That's just not true. The prices for societies and university-run journals tend to be significantly lower (at least in math) http://www.mathematik.uni-bielefeld.de/~rehmann/BIB/AMS/Publisher.html
201: Physics is the furthest along in this transition. I think it's really true that deans and people on committees coming from disciplines further from physics just look at things differently. (For example, even in among subfields of math the closer you are to physics the more likely things are to be on the arXiv.)
Of course, the new, free "Stanford Journal of History" would have to be as prestigious a location for publishing your research as the old, nonfree "American Historical Review" but that's really a problem of weird prestige and guild practices among academics, not something that they couldn't get around as a matter of law.
In fact, the new, free SJH could consist of exactly the editorial staff and referee pool of the old AHR; the publishers contribute nothing essential to the journal. Nevertheless, people are weird.
Peer review really is almost entirely worthless in my field.
This is off-topic, but what replaces it? That is, how do you know what's new and reputable other than by seeing it in a peer-reviewed journal? Just word of mouth, people who directly understand the new research passing it around as interesting, or what?
Imagine how rich Dijkstra could have gotten if he had only patented Dijkstra's algorithm.
204: It's happened half-a-dozen times in math that editorial boards have done exactly that. Of course, in the short run the result is that libraries have to pay for the new journal and keep paying what they were paying Elsevier because they're not paying Elsevier per journal.
Anyway, maybe academic publishing really is an outlier issue on the IP spectrum. But I'd be much more inclined to believe that if there were some software engineers agreeing with you rather than lawyers.
It's also totally unclear to me why the universities and academics put up with it, aside from traditionalism and weird guild practices.
If we change that to "traditionalism and the social pressures of the relevant institutions", then, gosh, we've got two of the most important drivers of human history. Institutions do not evolve smoothly towards efficiency, because changing them requires effort from individuals whose incentives are mostly about getting a long in the current system. And when they do change, it's largely because the powerful actors within the system are changing them to conform even further to their own interests.
With academic publishing, what you basically have is a collective action problem, compounded by the mismatch of where the understanding, opportunities, and power are located. The libraries are the ones who understand the big picture the best, but practices like in 196 are specifically aimed at dampening the libraries' incentive to take the lead in innovating or supporting piecemeal initiatives. As for creating the new journals, only established professors have the clout to make it happen, but because of generational things, they're also the least likely to understand what's going on, and in any case, they're completely insulated from the cost issues at the heart of the problem. Younger academics, by contrast, are encouraged to be as risk-averse as possible until tenure.
As for the textbook thing: again, this is a problem of institutional incentives. The fundamental issue here is that writing textbooks is boring, which would be fine except that most disciplines also don't give much reputational credit for doing so. If you could get tenure on the basis of an awesome intro open-source textbook, you'd see more of them produced. What's needed here is coordinated action, leadership by the various disciplinary bodies to reward this stuff. And I do have hope that this will happen, but it's slow.
I mean, there are literally things called "University Presses" that are supposedly somehow affiliated with the university and designed to support academic work. If it wanted to, as a charitable institution, Harvard University Press could simply declare all of its works publicly accessible and start printing out pamphlet journals for free. That would cause it to lose money, of course, which is why this isn't happening, but it's not copyright law that's the problem here.
The prices are lower, but the reluctance to make fulltext free after an embargo period is the same.
Being an editor is a mark of prestige, of something important, more so. The debate over scientific prizes is similar to the debate over journal importance.
PLoS One is an attempt at the ex-referee sorting problem LB asks about in 205.
Suppose copyrights lasted 15 years instead of forever. Then all we would need to do is stop giving away our copyrights for 15 years and then we'd be home free. Instead, we're going to be stuck paying Elsevier whatever they want us to pay them because they have a legal monopoly over putting any article from 1923 to 1990 online (even though none of the people who produced these works knew that they were granting such a right).
Why do you hate Mickey Mouse, unfoggetarian?
Well, as I say, there's not really any obvious reason why academic articles should have been subject to full copyright protection at all, since the market for them is so unusual. But there's not really a reason to change the overall copyright term to 15 years (which would cause all sorts of problems in other areas).
Here's another attempt at getting back to the big picture:
1) Extortion rackets which use the courts are still morally wrong even though they're not legally wrong.
2) Patents and copyrights are not property in a moral sense, even if they are close to property in the current legal climate.
You can be immoral without doing anything illegal, and vice-versa.
Also worth reading: a thought-experimental envisioning of an "Anti-StarTrek" dystopia, prompted by the question "Given the material abundance made possible by the replicator, how would it be possible to maintain a system based on money, profit, and class power?" Spoiler: IP plays a big role!
214: Certainly a more case-by-case approach to patents and copyrights would be a huge improvement over the current "it's all actually property" system. But the claim is that software is also unusual, and the current patent system as it pertains to software is also horribly broken. (Similarly medical patents are also broken. Also, copyright as applied to non-commercial copying is broken. etc.)
215: (1) Yes, (2) Sometimes they are. Dickens had a right to be pissed as hell at American publishers who were making shitloads of money from his books and not paying him -- he didn't have an enforceable legal right, but he had some kind of right that feels moral to me. But the moral right isn't in any precise way tied to the legal definition of patents and copyrights.
Well, as I say, there's not really any obvious reason why academic articles should have been subject to full copyright protection at all, since the market for them is so unusual. But there's not really a reason to change the overall copyright term to 15 years (which would cause all sorts of problems in other areas).
In vain you tell me that [intellectual property] is good, but that I fall out only with the Abuse. The Thing! the Thing itself is the Abuse!
169: All but the last two patents you mentioned are invalid under Bilski and other cases because they aren't sufficiently tied to a structure.
170: In general you are correct and it's not really very narrowing. The patents I wrote before Bilski are not going to be narrowed because they were already properly written to include sufficient hardware and if I have to pay a little extra to add claims to cover all situations where the data is stored and processed, so be it.
There are some patent applications, however, that are narrowed as a result of Bilski because if you don't tie the steps to a machine then they could technically be performed by a human. For example, there are a lot of patents covering the evaluation of stocks that are simply the application of equations, which could be performed either by a human with a calculator or a computer.
Also, why do some of you hate software patents so much?
Well if modern patent law had been available to Edsger Dijkstra in the 1960s, it's very possible that nobody could write software at all without paying a royalty.
217 -- The key difference is that academic work is being created for fundamentally noncommercial reasons, through independent funding, and with essentially no expectation of financial renumeration linked to the sale of the work. The issues there are quite different than, say, a copyright interest in a video game or a movie or a pop recording.*
*I know Trapnel will say that people just create things for the sake of creating them in all areas so let's just abandon IP, which is true in a limited number of cases but a pretty slender foundation to build a creative or innovative economy on.
221: I'd suggest you ask Ben about licensing a derivative work of 206, but I think somebody already made that joke.
218: Hrm. I'm torn. Intellectually I want to say that he didn't really have such a right, but my gut agrees with you that it's unfair. Though I would say that the moral issue here is whether Dickens gets *compensated* for his work, not that a thing has been stolen. I don't think people should have the right to control their work, only that they should profit if other people use it. (I'm imagining something like how radio works here. Of course, with the compensation decaying rapidly over time.)
Oops. That was me. Weird brain-fart.
216: I probably shouldn't say this because it really discredits my whole point about how patents are being more carefully examined, but one of my colleagues once had an item from Star Trek cited as prior art against a patent application.
I don't think people should have the right to control their work, only that they should profit if other people use it.
This is, broadly speaking, how most (not all, but most) of the intellectual property regime works.
At the gut level though I have to say that the moment the creator transfers the "right" to someone else the gut level "that's unfair" feeling goes away.
229: I think it was one of those things that looks like a Kindle that you can use to transfer data.
227: I'm not sure what you mean there, because most IP regimes don't *seem* to work that way to me. But perhaps the main point here is that I don't see why the author/innovator should be allowed to set the price. Ability to set the price is effectively control over how it's used.
a pretty slender foundation to build a creative or innovative economy on
What, the foundation of actual human psychology, human history, and the messiness of human institutions, as opposed to the peculiarly narrow view of homo economicus in an essentially frictionless world that drives IP maximalist arguments? It's your worldview, not mine, that's the radical one, only becoming hegemonic in the last generation.
Sometimes innovations happen because protected monopolists have shitloads of money and just throw it around (Bell Labs). But lots of times, innovation happens because that's the only way to get ahead in a competitive marketplace. If others can try to copy your innovations, that makes it all the more important to keep innovating. And typically it is smaller companies, not larger ones, that have an easier time with this. What larger companies can do very well, on the other hand, is hire lawyers and make threats:
Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.
An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"
After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.
Leaving aside all of the other issues, academic authors need to get permissions to publish quotes, excerpts, illustrations, etc. I actually haven't seen anyone talking about this in open access discussions, so maybe this doesn't matter, but there are barriers to just posting academic work and then putting it up online for free, voila-style.
There are also some real idiots out there on the dissemination side. I read something a few weeks ago where a someone, rightly angry at the copyright agreements the publisher wanted to get, decided not to publish an article and instead posted it as a public google doc. That's all fine, but if you want people to see it, they need to know that it exists and where to find it. It was a general enough topic that it's a crapshoot whether it would show up in google or other search engines and it certainly won't show up in any library catalog or database, free or paywalled, without some extra work. The author's whole attitude throughout the description of the experience was "well, to be honest, my career's fine so I don't care if it's published at all and really it's not a great piece of work". That's some real open-access heroism right there.
Ok, so that's really just a rant of mine about some blog post, but the fact is, dissemination is more complicated than just putting something online. That's where the for-profit and non-profit publishers have the big advantage because they have these giant indexes and databases. I really like it when a journal in JSTOR is open access - a few are - but I'll still search JSTOR for articles in those journals because it will be easier to find links to articles by the same authors in other journals, or places where an article is cited, for instance, than it would be if I had just a one-journal website to search. There are some open access journal directories, but like many of the journals themselves, they suffer from the prestige factor.*
*And yes, from the fact that lots of stuff isn't good. That's true of the paywall stuff to. I'm kind leery of the journal publishing solutions that involve even more journals and articles. In other contexts, people generally agree that there's too much stuff getting published.
228: Okay, that's wrong. If you wanted to say that there's no moral entitlement to anything like a copyright, I wouldn't agree with you but it's a judgment call.
But if you start from the premise that there's some sort of moral right to be compensated in a copyright-like way for your creative work, how could transferring the right invalidate it. We want Dickens to finish the Mystery Of Edwin Drood, not be hassling with intransigent American publishers. If he can sell whatever right he has, he writes more and spends less irreplaceable Dickens-time on litigation.
220: All but the last two patents you mentioned are invalid under Bilski and other cases because they aren't sufficiently tied to a structure.
I guess that will be a comfort to the 40 companies currently being sued for violating the first patent I mentioned, then?
Or maybe not: for a small company like Wulven, even if the patent is eventually thrown out, the cost of defending the lawsuit will be greater than any profit they made from their game.
203 201: Physics is the furthest along in this transition.
High energy physics, at least, and also astrophysics. My guess would be that fields of math close to string theory took to arxiv quicker than, say, people studying molecular physics.
At some point Chad Orzel, whose blogging I usually find pretty reasonable, wrote a post complaining about how high-energy physicists tend to rely on arXiv and rarely try to publish in Physical Review Letters. Which just baffled me. PRL has a lot of pompous claims about how they filter out the material that is of interest to the broadest possible audience, but I think their editors and reviewers are ignorant. Also, distilling a paper down to 4 pages is a pain. Why not avoid it and prefer to put things on a public website?
Also textbooks and articles go together in some ways, but not in others. Academics make very little directly from articles. Successful textbooks build mansions. So the incentives may be different, if you happen to be trying to persuade someone of something or other.
205 This is off-topic, but what replaces it? That is, how do you know what's new and reputable other than by seeing it in a peer-reviewed journal? Just word of mouth, people who directly understand the new research passing it around as interesting, or what?
I skim the titles and authors of the new arXiv listings every day. If the title looks interesting or I know who the authors are, I read the abstract. If it sounds promising, I might skim the introduction and conclusions, and sometimes note it as something to come back and read more thoroughly when I get a chance.
If I somehow overlook something important, then yes, I'll hear about it by word of mouth.
I probably shouldn't have jumped into this as I need to head off and look at a bunch of public domain stuff that hasn't been put online and is available only at libraries willing to pay upwards of $60 a reel for the microfilm.
234: I'm sure someone who actually thinks about moral philosophy could phrase this better... I was trying to probe whether I really do feel like Dickens has such a moral right, and one way of clarifying that was to think about what my reaction was to him selling it.
On the other hand, him giving some cut of his royalties to someone in exchange for that person dealing with stuff seems fine to me. It's that things like "The Lion Sleeps Tonight" situation happen all too often. As a result strong IP could be more likely to result in unfair treatment of authors/innovators rather than less.
Does arXiv attract nuts who want to publish the research behind their perpetual motion machine/FTL Drive/whatever? Or is it mostly all real physics, even if not all interesting?
241: If you don't have a university.edu email address (or something similar) then you have some hoops you have to jump through to be able to post to the arXiv.
In math we also have a special category (.GM = general mathematics) where the crank papers are moved to.
See http://arxiv.org/help/endorsement for more info. But in fields where the arXiv is used heavily it's almost entirely real work (although, as with all but the best journals, it's not mostly that interesting).
235: That's the Lodsys patent? Crazy - I don't see how in-app purchases infringe something that requires collecting information about "user perception." It's not even properly defined in the specification.
A FTL Drive is by definition a perpetual motion machine. But no, I don't want to publish.
The particular aspect of software patents that bugs me at the moment is that, because there are separate concepts of knowing (willful?) infringement and unknowing infringement, I have been told by all of my employers in the software industry that I absolutely must not ever read or learn about patents that exist. I shouldn't even have read comment #169, in their view, and I'm trying hard to forget any of the actual contents.
So any value that patents have in disseminating actual inventions is totally lost, because of the legal landscape. Possibly they'd be OK if I were to somehow only ever look at expired patents, but I suspect there are reasons to be wary of that as well.
At a previous job I had a lot of pressure to work on a patent for something we had done, and it was a totally negative experience - all we had done was build a box A that included both a box of pre-existing type B and pre-existing type C, and glued them together in an entirely predictable way. The unpleasantness of that, and the fact that the company seemed to want very badly to develop a portfolio of patents, really any patents, was part of what made me leave.
Yeah, it's mostly pointless, shoddy, ill-conceived work, but that's academia for you. Relatively little crackpot stuff, except the various crackpot subfields that are well-established enough that lots of people with real jobs perpetuate them.
In math we don't have any crackpot subfields. New slogan: "Math. It's more likely to be pointless but way less likely to be actually crackpot."
246: Yes, certain companies have quite a strong opinion when it comes to engineers having knowledge of patents. But in addition to the willful infringement distinction, it also helps avoid engineers being forced to testify in a patent infringement lawsuit.
Also, can I lay some hate on discoverability? Reading up on company policy, it seems like there may be nuance, but the nuance can only be discussed in person or by telephone, and absolutely must not be put in email, even to the legal team, and certainly can't be written out on internal documents that someone like me might read. As a result, the barrier to getting the information is higher, and I'm not going to bother.
I don't know if I would be sad or happy about this, but I do kind of feel like if email, which I generally prefer, is going to be restricted like that, then all the phone calls should be recorded and all the hallway conversations videotaped and archived so that there isn't this weird dodge to do things a certain way just because they are more or less provable by some hypothetical legal adversary.
250: It's like you don't even want me to have a job [she says, compiling a privilege log].
You're hurting innovation, Nathan.
This is, broadly speaking, how most (not all, but most) of the intellectual property regime works.
Do you have anything at all to back that up? I mean, beyond the trivial "charging eleventy billion dollars isn't banning", IP holders choose control over profit (or control and profit) over just profit all the time. To take a simple example, it is literally impossible to watch the Colbert Report legally in the UK. For a while, it was viewable on a pay-TV channel, at which point they stopped letting you watch it on the website. But when FXUK stopped showing it, they didn't let us watch it again. I can't even buy it from iTunes, unlike in the US. They're not making any money at all from the UK now.
And this isn't exactly the only example. Every exclusivity deal is backed up by IP law and exclusivity is rife in the media.
Nathan why can't you understand that you never would have put those boxes together if it weren't for the patent system!
I also couldn't watch Game of Thrones when I was in Germany, which is like fascism all over again.
On more thought, I'm perfectly willing to agree that there's some version of copyright/patent protection which would be more moral than no copyright/patent protection. However, I think that our current system is significantly less moral than just having no copyrights or patents.
Hilariously, the whole A-B-C patent came up because we had a meeting just before we launched the product where the CTO asked us if there was anything patentable in it. An awkward silence filled the room, and I made the mistake of speaking up and saying "uh, we included both B and C?" That caused me to be on (engineering) point for actually doing the patent work. Should definitely have kept my mouth shut; I thought I was joking.
244: That's one of the Lodsys patents, yes. Lodsys is also suing over violations of U.S. patent 7,620,565 and 5,999,908, if I understand correctly.
Here's claim 1 from U.S. patent 7,620,565:
"1. A unit, comprising: a memory; a transmitter; and a processor, coupled to the memory and to the transmitter, configured to: monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events, increment a counter corresponding to the trigger event upon detection of the occurrence of the trigger event, cause the display of a user interface, configured to probe for information regarding a use of the product, if the counter exceeds a threshold, cause the memory to store an input received from the user interface, and cause the transmitter to transmit the input to a server."
Thank goodness someone patented this, otherwise we'd never have been able to figure out for ourselves how to trigger the display of a user interface after a certain number of events have occurred. (In claim 5 the patent generalises this important technique to a second counter.)
That reminds me to remark, in passing, that the very first official thing I did, in my administration--and it was on the very first day of it, too -- was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn't travel any way but sideways or backwards.
231, 253 -- It depends on specifics, but here are a few examples. For something patented, the idea and application are controlled, but you are permitted to use it in exchange for a reasonable royalty or license fee. If you infringe and are sued, generally, the court will let you continue the use in exchange for the license.
For copyrighted material, you can use it as much as you'd like -- that is, you can take the material and take its ideas and do whatever you'd like with it -- you just can't copy it, that is, recreate or reproduce the identical thing. As a formal legal matter, in some cases the copyright holder has an absolute right to enjoin use or dissemination, in other cases (like performance of music or cable retransmission rights) the copyright holder cannot enjoin use, but has to provide the material in a compulsory licensing scheme. And then there's the first sale doctrine, which allows you to sell your copy of the material as you'd like once you've bought it. If you infringe on a copyright, there's usually an injunction right, but the damages are based on either statutory damages, which are small, or an assumed reasonable royalty to the copyright holder.
As a practical matter, most, but not all, copyrighted material that one would want to use is available for licensing through a licensing clearinghouse or available for purchase through some distribution channel. That's apparently not the case for the Colbert Report in the UK (I don't know UK copyright law), but it would be surprising if it remains unavailable forever. Which isn't to say that this never happens. But "use as you'd like, but pay for use" is much closer to the norm of both patent and copyright than the alternative.
To bring things back to Star Wars (kinda), it is far more immoral that Lucas can block Strompolos, Zala, and Lamb from distributing and/or selling "Raiders of the Lost Ark: The Adaptation" than it is to make a digital copy of the original Star Wars today.
You're saying if I wanted to make my own Harry Potter movie I could do so as long as I paid JK Rowling the same percentage of the profits as they paid her for the official movie?
262 -- no, not at all, she'd have a right to enjoin the derivative work. But that's a pretty extreme example. You could do a movie parody of Harry Potter, or a story heavily based around ideas very close to Harry Potter, or negotiate with her (actually, with WB, who now owns the film rights) for the rights to the film.
Or suppose I wanted to make a song which reused a portion of an adaptation of a Rolling Stones song (note, there's no copying of the Rolling Stones here, only copying of the adapted work) then surely I could do so with the Stones only getting a reasonable cut of the royalties.
For copyrighted material, you can use it as much as you'd like -- that is, you can take the material and take its ideas and do whatever you'd like with it -- you just can't copy it, that is, recreate or reproduce the identical thing.
As you acknowledge in 263, the existence of a derivative works right complicates this tremendously. Because, of course, one of the main ways we use creative works is to make new creative works, but that's now part of copyright. It wasn't always, and it shouldn't be.
264 is correct (assuming that the deal between the creators of the adapted work and the Rolling Stones provided for such royalties, as it ordinarily would).*
Although since publication and recording and performance rights are all different "make a song" is a little complex, and it depends on whether by "adaptation" you mean "sampling of a Rolling Stones" song or just "reworking" (in which case the adaptation would probably have just been an independently copyrighted song that paid the RS nothing).
Or if I want to use recordings of Led Zeppelin songs, then I just need to pay them a reasonable royalty fee, I don't need to go meet with Page and Plant and play them the movie and find out that I can use "That's the way" but not "Stairway to heaven"?
266: What I mean is The Verve's "Bittersweet Symphony" where they got 100% of the royalties and the band got nothing.
http://en.wikipedia.org/wiki/Bitter_Sweet_Symphony
Well, as I say, what constitutes a derivative work is fairly narrow. A film adaptation of the Harry Potter story would of course count, but you could basically rip off all of JK Rowling's ideas and put them into a thinly-veiled new film without violating the copyright laws. Sampling of music is an example that complicates things, as does use of clips in documentaries; I support compulsory licensing in both cases, but as a practical matter the problems with both are often wildly overstated and are taken care of at a commercial level by clearance houses.
258: That claim is okay under Bilski but I completely agree with you that there is nothing novel in the claim, even with the fact that it has a 1992 priority date.
When you say "you could" do you mean "you could if you had a lot of money and a good lawyer"?
268 is a pretty terrible example for your point. What the Verve did was to buy a sampling license to the material, which they did and obtained very cheaply, and then grossly exceed the terms of that license and got screwed once their song became a huge hit. Bad legal advice, but if they'd just purchased the rights to the Jagger/Richards composition for full use on a better license* they would have been fine.
*I support compulsory licensing schemes for sampling but the Verve usage would have gone way beyond any compulsory sampling license.
For what it's worth, I wasn't trying to play gotcha, I figured everyone knew about The Verve as a famous example of the evils of copyright. 267 is "Almost Famous."
And I know too much about 267 to comment further.
Part of why I feel the software folks and the lawyers are just sort of talking past each other here is that, while the legal arrangements/negotiations are "taken care of at a commercial level by clearance houses", just part of doing business for large firms that are used to dealing with each other, and the bread-and-butter of the lawyers involved, they're often experienced by actual creators as either incredibly frustrating, as in Nathan's experience, or as a traumatic assault, as in this case:
TL;DR version: Last year, I was threatened with a lawsuit over the pixel art album cover for Kind of Bloop. Despite my firm belief that I was legally in the right, I settled out of court to cut my losses. This ordeal was very nerve-wracking for me and my family, and I've had trouble writing about it publicly until now. ... I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis's publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated. ... But there was one thing I never thought would be an issue: the cover art. ... -- a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. ... they were seeking "either statutory damages up to $150,000 for each infringement [that's your idea of "small", Halford?] at the jury's discretion...
I think it's easy for people embedded within the legal system to forget how much it can be experienced by "civilians" as a hostile, violent force.
272: But surely 100% is not "reasonable royalties" under an everday usage of the word "reasonable." (Perhaps legally it's "reasonable" but the whole point here is that the legal system is out of whack.)
270: It's not the lack of novelty that I have an issue with. It's the obviousness.
The patent office, as I understand it, is supposed to reject patents "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."
It seems to me that the patent office has completely lost touch with the "person having ordinary skill in the art". There are millions of software engineers whose job is to take problems and invent solutions to them by putting together a bunch of well-known algorithms, data structures, databases, networking protocols, and so on, in well-known combinations. Quite often the solution will be "novel" in the sense that no-one's implemented precisely that solution before, but many other engineers would have come up with similar solutions given a similar problem to work on.
Take for example, U.S. patent 6,309,301. It's a patent on the idea that when you have several computers all playing music at the same time, it would make for a nicer sound if they synchronized the music with each other. That single sentence has already given you all the valuable content in the patent: to a person having ordinary skill in the art, an obvious way to make the machines synchronize their music playback is to network them and use a network protocol to synchronize their clocks, and use the clocks to synchronize the playback. It's the kind of system any competent programmer could design and implement, given this problem to work on.
I'll back out for a little as trapnel and Gareth are doing a much better job than me.
I think it's easy for people embedded within the legal system to forget how much it can be experienced by "civilians" as a hostile, violent force.
That's certainly true and important, but don't forget that I spend a lot of time dealing with more or less ordinary creative people as well. They are at least as concerned about enforcing copyright on their own work. They are aware that it provides their eventual bread and butter and that of their industry as a whole. And they are at least as concerned -- no, they are way more concerned -- about an absence of protectable copyright as they are fearful about being churned up by the horrible litigation machine.
To play just a little bit of gotcha, I think it may be easier for academics, who have access to charitable funding sources outside of the work for creative work, to imagine copyright as purely a negative force.
276: I actually never understood that aspect of the Verve settlement. 100% royalties wasn't legally required, at all. I assume (speculating here) what happened was that Virgin/EMI, who also had the rights to the Stones, leaned on the Verve and its management and promised them better things while also threatening to pull the album from the stores completely.
Halford seems to see it as a feature, not a bug, that the current system forces all creative works and innovation into a thoroughly contract-covered, lawyer-examined, negotiations-handled-through-established-channels framework. After all, that's capitalism. But when put in these terms, we can also see that it's a very radical, historically contingent model of production, one that has never been dominant in knowledge-production, art, music, or literature. Claims that "it's this or nothing"--that unless we have a system built around a paradigm of every use paid for / licensed, with some set of carefully carved-out exceptions, our Dickenses and Edisons will die penniless on the street--are baseless scaremongering.
Patents do not encourage software development. At all. Almost nobody who writes software thinks they do.
Well, I'd also support a return to feudalism, if I get to have a title and be a patron of the arts.
277: I think you will then be comforted by this: the requirement for overcoming an obviousness rejection was made more stringent in 2007 when the Supreme Court decided KSR v. Teleflex.
It used to be that in order to prove that it's obvious to combine multiple references to obtain the invention the references had to have a teaching, suggestion or motivation to combine the references. This means that there had to be an affirmative statement somewhere suggesting the modification. SCOTUS overruled the Federal Circuit on that point.
Now, as long as the references are directed at solving a similar problem you can combine them. Basically, you can combine any reference you want unless the combination of references would render the invention non-functional or one of the references teaches away from combination (i.e. suggests that the modification wouldn't work).
The courts have emphasized that an invention is obvious if it's simply the combination of known techniques to obtain a known outcome. It's only when the result is surprising that applicants deserve an invention.
LizSpigot, software patents have contributed nothing to the development of the Internet. If software was unpatentable, the Internet would be almost exactly the same, except for less money going to lawyers.
They are aware that [copyright] provides their eventual bread and butter and that of their industry as a whole. And they are at least as concerned -- no, they are way more concerned -- about an absence of protectable copyright as they are fearful about being churned up by the horrible litigation machine.
Again: that an exclusive-rights-intensive strategy is the best response to an industry focused around exploiting exclusive rights tells you very little about how the industry would look in the absence of such rights. Furthermore, the actual impact on individual performers is much less obvious than the folk beliefs would suggest; there are a bunch of interesting links in this CT comment. Given our liberal individualist cultural, and the dominance of Romantic notions of authorship, the beliefs you encounter aren't surprising; they're also not correct.
At any rate. Patents are rather different, and software patents are particularly monstrous in ways that copyright isn't; those much less radical than myself--including basically every programmer--can agree about software patents, no matter what they think about copyright.
Given our liberal individualist cultural, and the dominance of Romantic notions of authorship, the beliefs you encounter aren't surprising; they're also not correct.
Glad to hear that you know more about this than people who actually do and think about these things for a living and depend on these rights for their income.
the combination of known techniques to obtain a known outcome. It's only when the result is surprising that applicants deserve an invention
I'm not sure I've really understood the standard, but my sense of why software patents are so outrageous is that using familiar techniques to solve particular, never-before-seen-in-quite-this-way problems is as intrinsic to programming as using familiar words to produce particular, never-before-seen-in-quite-this-way sentences is to language. It's just what you do. There's no need to grant exclusive rights, because solving these problems is a necessary step towards accomplishing anything. Hence there are no positive incentive effects; and there isn't even the usual figleaf of fixed-costs needing to be recouped, given the democratization of computing power. In addition, the argument from publicity--awarding patents to get the "invention" out there--also doesn't apply, since (a) we've seen in practice that the system doesn't work that way at all, instead encouraging submarining--hiding your patent until someone accidentally infringes in a successful way, and then demanding they pay up; and (b) the vast bulk of innovations here happen in a learning-by-doing, incremental fashion, with individual solutions needing to be tailored to individual problems, such that a patent application tells you absolutely nothing helpful; and (c) the culture of FOSS code-sharing and re-use, rather than that of litigation-terrorized secrecy, seems to handle the problem of dissemination quite well.
Glad to hear that you know more about this than people who actually do and think about these things for a living and depend on these rights for their income.
But what are "these things"? How the patent system presently does work? The necessity of the patent system for any innovation at all? How things might have looked in the absence of our actually existing patent system? The patent lawyers in this thread don't need to think about the latter two at all in order to earn their living.
However, since Megan complained that this thread hasn't yet taken a detour to food, let me note here the following things:
(a) including a few bitter almonds in with the regular almonds when you make frangipane seems to boost the almond nature of said frangipane a good deal;
(b) I am becoming pretty damn good at making R. L. Berenbaum's Chocolate Oblivion Truffle Torte.
Glad to hear that you know more about this than people who actually do and think about these things for a living and depend on these rights for their income.
It looks to me like this argument has pitted people programmers and IT people against lawyers. Both sides have direct knowledge of the field. The difference in opinion comes from differences in training, professional bias, and the nature of the personal experience, not in the amount of experience or quality of knowledge.
I'm the only one who was voicing opinions on an issue I know nothing about. (Someone has to keep internet traditions alive.)
287 -- I wasn't talking about the patent system at all. I was talking about Trapnel's idea that, even in something like the current system, "the actual impact" [of copyright infringement or avoidance or of not having a copyright system] on individual performers is much less obvious than the folk beliefs would suggest."
Believe me, that's something that people who earn their living making film or music for a living think about a lot. They may be wrong, they may not be imaginative enough, and they have different answers to the problem, but no one knowledgeable about the industry would be satisfied with a "you'll be fine because giving away all your stuff for free because just means free advertising!" argument (even though they're aware that sometimes you do want free advertising and to give away stuff for free).
I wasn't talking about the patent system at all. I was talking about Trapnel's idea that, even in something like the current system, "the actual impact" [of copyright infringement or avoidance or of not having a copyright system] on individual performers is much less obvious than the folk beliefs would suggest."
Well, he did link to a comment elsewhere with links to actual research papers, into which presumably some thought went.
Glad to hear that you know more about this than people who actually do and think about these things for a living and depend on these rights for their income.
1. This cuts both ways. You, and the creators you represent, have both the motive, the experience, and the structural position to get a good view on how to maximize creators' income given the current rules. On the other hand, there's the "it is difficult to get a man to understand something, when his salary depends upon his not understanding it" effect--you're psychologically and structurally ill-placed to see how the rules might be hindering other modalities. Did the music industry's, and the RIAA's in particular, response to online fire-sharing over the last decade represent the wise deployment of practical, industry-specific knowledge, or the reactionary flailings of incumbent firms unable to adapt to changing times?
2. Economics is complicated, and the economics of such socially embedded things as creative works is still more complicated. That's the whole justification for having academics, after all--that it's unreasonable to think people will be able to generate nearly as much knowledge about such matters as would be optimal, unless they are able to dedicate themselves purely to its pursuit. (Note: I'm not claiming the academy actually accomplishes this purpose, or that its development is explained as the Whiggish working-out of this; merely that any attempt to justify it needs to start from there.)
286: There was a period of time where software patents were ridiculous because the patent office lacked sufficiently trained people and applicants were taking things that people had been doing for years, but put them on the Internet or wrote software to automate the steps and suddenly it's worthy of a patent. The Amazon 1-click patent is silly, I agree.
But in my area the examiners are now very sophisticated. I work with software and some hardware devices (electronic reading devices, printers) and there's no fooling examiners. They understand what you're talking about and you can't convince them it's novel by calling something a snoodle instead of a database, which is another way that people obtained those ridiculously broad patents. If a reference exists that includes some feature that is in your claim, you're pretty much never going to overcome that obviousness rejection. You have to find a feature that isn't in any of the references or it takes something like six references cobbled together to obtain all the features of the claim.
I don't quite understand your reference to hiding patents since they're published after they issue as a patent, but maybe I'm interpreting this too literally? There was a thing called a submarine patent that Lemmelson used as a tactic, where he extended prosecution to obtain a longer patent term but that rule only applies to patents filed before 1995 so it's pretty irrelevant now.
However, since Megan complained that this thread hasn't yet taken a detour to food, let me note here the following things:
I for one am shocked that culinary knowledge has developed at all, given how little it is protected by exclusive rights.
Did the music industry's, and the RIAA's in particular, response to online fire-sharing over the last decade represent the wise deployment of practical, industry-specific knowledge, or the reactionary flailings of incumbent firms unable to adapt to changing times?
Ouch!
To be fair to Halford, the RIAA hardly represented a consensus on the part of musicians some of whom embraced file sharing while others hated it.
If the patent process is fixed now, is the point just that it'll take another 20 years for all the old bad patents to work their way out of the system?
Yeah, I meant "hiding" in a less literal way:
A submarine patent is one that the holder does not draw attention to, even when aware that it is being infringed, in the hope that it will be possible to extract more money from unwitting users of the patented idea when it becomes more widely used.
This is a sort of behavior that is completely at odds with the supposed justification of the patent system, but that practice has shown to be encouraged by it.
The piece he linked to said that counterfeiting of fashion goods could have an advertising impact on high-end fashion goods and that file sharing could increase concert sales for lesser known performers. Both may or may not be true, but would not and should not and does not remotely provide comfort to anyone thinking about the overall effect of copyright on the music or film industry or artists.
282: I think you and the Supreme Court have a very naïve idea of how software is actually developed. We don't restrict ourselves to using "references directed at solving a similar problem". We have a large set of general techniques which we can apply to any problem.
Meanwhile, here are some inventions that have been patented recently. (If you are ordinarily skilled in the art, you might want to think about how you would solve the problem in each case. Did your solution use "references directed at a similar problem"? Do you think the technique that you came up with deserves patent protection?)
* Putting photos on a website
* Automatic translation of multi-lingual syndicated feeds
* Changing a player's user name when they switch characters in a multi-player online game
* Managing access permissions on a multi-user blog
When and why did trapnel lose the "x."?
The latter part of 297 isn't true, of course, except indubitably among some set of people who halford knows.
I'm finding the programmers more convincing than the lawyers on this thread.
297 to 290.
I agree generally with the "it is difficult to get a man to understand something, when his salary depends upon his not understanding it" point.
But -- precisely because of the RIAA and its strategy and the effect of that strategy, which was to effectively eliminate the music industry, which now no longer exists at all in anything like the form it did in 1999 -- this really is an issue that people have put a lot of time into thinking about.
"Give everything away for free and hope for free advertising" isn't really sufficient. Although similar elements are now built into the business models of both the music and film business.
295: I guess so. I'm not saying there isn't a problem right now, but there are solutions and things are getting better. Some patents will be declared invalid during litigation. I totally get how unsatisfying an answer that is, though, because litigation is expensive and a lot of people settle for that reason.
Many patents will also expire soon, though, because the sneaky people frequently get patents by claiming priority to very old applications, which reduces their patent term. You're now only entitled to 20 years of patent term dating back to your earliest priority date and it normally takes about five years to obtain a patent. So the most patent term you would reasonably expect is 15 years. But for the sneaky patents, like that Lodsys one that Gareth mentioned, 7,620,565 will expire next year (maybe a little longer because of some other complicated rules but not much longer).
For what it's worth, Hollywood-style commercial film seems to me to be a special case where the case for strong anti-copying protection for a few years (say 2 or 3?) is very very strong. (Costs of production are very high, with the exception of some franchises it's hard to make the money on ways other than showing the film, and the number of films made is small so clearly incentives are important here.)
(On the other hand, the case for music copyright is much weaker on every point.)
When and why did trapnel lose the "x."?
It's part of a conscious presentation of decadent devolution. I used to capitalize it, too, and put in a space!
Actually, it's because I keep vowing to quit this place, telling my browser to forget the Name field, and then get sucked back in. If I just use "trapnel," it doesn't really count!
Oh, and the submarine patent link/quote was from here.
296: But that's why we have laches.
Laches [1] is an "unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" [2] When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the plaintiff's original claim. Put another way, failure to assert one's rights in a timely manner can result in a claim's being barred by laches. Laches is a form of estoppel for delay.
I thought laches was a general who couldn't quite define courage to his interlocutor's satisfaction.
304: As I keep on saying, I know very little about this stuff, but I have puzzled myself wondering, in the absence of work for hire, how would the copyright on a massively collaborative enterprise like a movie be allocated. Would the actors be partial owners of the copyright? The director? The screenwriter? Editors, soundpeople? I'm sure there's an answer, because this must actually come up for amateur, indie movies.
Am I really the only lawyer in this thread arguing for the side of Light over Darkness?
But -- precisely because of the RIAA and its strategy and the effect of that strategy, which was to effectively eliminate the music industry, which now no longer exists at all in anything like the form it did in 1999 -- this really is an issue that people have put a lot of time into thinking about.
And yet the film industry is doing exactly the same thing, 10 years later.
298: Well, fuck. It's not a perfect system. I wish I had those examiners, though, especially for the third one.
301, 309 -- It appears that infringers and those who represent them don't much care for patent law. People who own patents, and those who represent them (at least some of the time) have a different perspective.
but I have puzzled myself wondering, in the absence of work for hire, how would the copyright on a massively collaborative enterprise like a movie be allocated. Would the actors be partial owners of the copyright? The director? The screenwriter? Editors, soundpeople?
You may or may not recall yea odd five-ish or so years ago I asked this very question on this very blog about this very blog (another "massively collaborative enterprise", you might say), subbing of course "blog" for "movie", and "owner of the IP address", "posters", and "commenters" for the various other named individuals. I was roundly denouced as if the very question itself were absurd, and I received no satisfactory response.
I still want to know if I can sell the fucking archives to random house. Or, alternatively, if I'm entitled to any royalties when Stanley sells them to random house.
309: Katherine, a lawyer, has said that the programmers are more convincing than the lawyers, if that cheers you up at all.
Hollywood-style commercial film seems to me to be a special case where the case for strong anti-copying protection for a few years (say 2 or 3?) is very very strong.
But this is another example of how the industry itself is an adaptation to the rules in place: a world without copyright would certainly be more hostile towards huge budget mega-productions; it would also be relatively friendlier to documentaries, small-budget non-costume dramas, etc. Would such a world be better or worse? Not sure, but the point is that copyright policy is unavoidably cultural policy.
There was some bloggy stuff around this point--"how do we get King Kong without copyright?"--a few years back.
Oh, and Rob:
I'm the only one who was voicing opinions on an issue I know nothing about. (Someone has to keep internet traditions alive.)
What, do I count for nothing?
People who own patents, and those who represent them (at least some of the time) have a different perspective.
Other than, say, Nathan. Well, not that he owns the patent, but he did the work that was patented, so he's the innovator who the system should be encouraging. And yet he remains unhappy.
I was roundly denouced as if the very question itself were absurd, and I received no satisfactory response.
No, you've forgotten the response you received, which it that there's a Creative Commons copyright notice in the lefthand margin telling everyone to copy and re-use at will, so long as you don't charge. Or something like that -- I don't actually remember the terms, but they're stated.
This may be the most fascinating comment thread I've ever read here.
I agree completely with 301.
316 -- Yeah, I was thinking about how Nathan's experience fits. All encounters with the legal system suck. I think we can all agree with that. The question is whether they suck less than the alternative. Answer depends.
316: Since most people have employers the (corporate) person who owns the patent is not typically the person or people who did the innovation, right? So Nathan is not at all a stand-in for (corporate) people who own patents.
312: I have represented people who own patents. And besides that, of course I realize there are people who are pleased with the rents they're able to extract through the patent system. What I'm not sure is why people who represent them would, when they're not actually representing those people at the moment, adopt their same perspective.
315: Relatively friendlier is not friendlier.
317: I don't think I actually recieved that response, which is of course right, although I was trying to ask the question a little more generally, actually exactly as you have here, i.e., where there's not a creative commons license how does the system allocate rights in collaborative projects generally? I suspect the answer is just that the rights end up in a total mess of a grey-zone.
323: As I recall the conversation everyone boggled at it for a bit, and Ogged (I think ogged, maybe someone else) came in late and pointed out the CC license. So maybe you'd given up on the conversation by the time the answer showed up.
But it's a heck of a question. I don't understand copyright at all, really.
And yet the film industry is doing exactly the same thing, 10 years later.
It's really not. Honestly. Whether and how it will be successful is a different question. And I should probably leave it at that.
326: It turns out, it's known as a copyright for "joint work". That link is short and very informative.
Under copyright law, absent a written agreement otherwise, each joint author owns an undivided interest in the whole work. It doesn't matter who made the final or most critical changes.
As joint copyright owners, under default arrangement per copyright law (again, absent an agreement to the contrary) your only obligations to each other is to pay the other 50% of anything you earn by marketing the work. So far, this matches the agreement you've already made. However, the default arrangement under copyright law would also give each of you the right to exploit the copyright without the other's permission. That means you can make and sell copies of the work, or grant a nonexclusive license to a product manufacturer to use the work, without asking your friend to agree, and vice versa. The only thing you can't do without the other's permission is transfer the copyright in the work, or grant someone else an exclusive license - that requires a written assignment signed by both of you.
Lessig had this great 2-by-2 grid in a slide (that I can't seem to find) where the axes were something like: commercial/noncommercial and remix/copying. His argument was that the current regime only makes sense in the commercial/copying corner, but should be relaxed in the commercial-remix and noncommercial-copying corner, and completely eliminated in the noncommercial-remix corner.
328: But implies that all contributors receive equal shares of the proceeds. Meekins is going to be getting a windfall from sales of the Morocco-bound complete edition, not that the ice tea wasn't worth it.
It appears that infringers don't much care for patent law
I'm not sure what you do for a living, but let's suppose you're a lawyer. Imagine, if you will, that every ordinary activity you undertake in the course of your profession is an infringement of someone's patent. You don't know exactly which ones, because there are millions of the things, and they are written in a language that's largely gibberish to you, but you are well aware that at any moment someone may turn up and demand 5% of your lifetime earnings to date, because they are the owners of U.S. Patent XYZ. Method for conducting a cross-examination of a witness or U.S. Patent WXY. Method for taking a deposition.
I am a patent attorney.
There are weaknesses in the patent system that are not really the fault of the patent trolls(non-practicing entities) but the existence of the patent trolls make worse.
There is no clear economic rationale for the way the system is set up. Is it a good idea to give companies x years of exclusive protection for disclosing their inventions? Who the fuck knows?
There are areas where patents are afterthought. Patents are not a significant incentive for software guys. Software patents shouldn't exist. I would be SOL personally if they got rid of them though.
That isn't the case in areas like pharmaceuticals where the existence of patents drives R+D. Even there, do patents give the right level of protection? Who knows.
Ideally, you would have different levels of protection available for different art areas.
The problem with patent trolls is that they make patents more liquid and valuable increasing the benefit of getting a patent. That would be a good thing if patents were underincentivizing R&D. Since that isn't the case, patent trolls are probably bad.
It's not clear, I think, and it's not like I've done extensive research into the nonlucrative question of who owns this blog, that the blog would be considered as jointly authored between commenters and posters. It could be that each commenter has copyright in their own comments (which, in turn, may or may not be affected by the CC license governing the blog as a whole); I don't see a notice assigning copyright in the comments to the blog. Interesting questions and I wonder if they've been litigated anywhere.
330: That might be in his talk at CERN (and probably elsewhere). I'll see if I can dig up the link.
Lessig's talk is here, or was there. I can't seem to play it. If you can download the .tar file, the slides are in one of the folders you end up with.
One thing that's really frustrating about copyright law is that it's so hard to know for sure what's legal and what isn't. Notions like "fair use" are so vague that you can't ever be sure you'll easily win a case. You just have to hope that you'll fly under the radar.
One place where this intersects my life is that puzzle hunts are typically "themed" around something taken from pop culture (a movie, tv show, board game, etc.). No one has gotten sued for copyright infringement for a puzzle hunt yet, but it's a real worry that it's going to happen someday. And it's unlikely that anyone involved could afford the litigation even if the case was weak. (Though I suppose if it was the MIT hunt there's some chance that MIT's lawyers could get involved.)
pharmaceuticals where the existence of patents federal spending on basic research drives R+D.
Fixed.
Silly rob, don't you know that "R+D" means "finding worse versions of existing medicines which you can then patent and market the hell out of."
The federal spending only helps with actual advances, not the real money makers.
It's really not. Honestly. Whether and how it will be successful is a different question. And I should probably leave it at that.
That's not how it looks from over here. The music industry has reconciled itself to sensible, consumer-friendly internet business models, eg Spotify or even iTunes. The movie industry hasn't. Even the best service (only available in North America), Netflix, has a pitiful selection of streaming movies with virtually no recent blockbusters. And it has just jacked up its price because the movie studios kicked up a fuss because too many people wanted to pay for their movies(!). Lovefilm, the equivalent over here, is a joke for streaming. iTunes has bugger all American TV worth watching on this side of the pond, and what there is is outrageously expensive (like twice to three times the price of a DVD). For a file that you can't, say, stream to your TV without paying another 100 quid for Apple TV. There's no equivalent to Hulu over here, and I can't pay for Hulu even if I want to.
334: It's very likely to become a significant issue in the website preservation world. It already sort of is, but I think people are more concerned with the technical issues and privacy concerns right now.
WTF is a puzzle hunt? Is it a treasure hunt?
And does it involve Anneka Rice?
341 -- I don't know much about the UK, but it's not really that significant a concern for the US studios. Once the dust has settled, I'm sure things will get easier over there, if the studios survive.
342 overstates Unfogged's importance.
Think crossword puzzles, but more variety and no instructions. The closest thing you're likely to have seen is the holiday-themed editorial page puzzles written by puzzlability for the ny times. "MIT mystery hunt" is the original, but Microsoft has them regularly, and there's lots of them in the bay area (just run my people, no real "organization" behind it).
Of course individual puzzles also arguably infringe at times. I had one puzzle where one track of the audio was just one song ("good vibra/tions") while the other track was short snippets of different songs (all short). The latter is almost certainly fine, but the former probably isn't (I think it was around a minute). (But it was necessary for the puzzle: how else would you notice the pattern that all the lyrics had names of sex toys sold at good vibrat/ions in them?)
I'm sure glad you thought to googleproof the word "vibra/tions".
346: if the robots stop respecting the unfogged no cache robots.txt, I'm going to be enforcing my copyright. Personal use only, in a dedicated research institution, no quotations.
Hey, Unfogged's CC license allows commercial use. Business plan time!
I was worried about people googling that puzzle and finding this and thereby finding out that I post here. Probably irrational.
Microsoft's college puzzle challenge seems to always be generically themed, which suggests that they have actual lawyers involved for that. But the regular Microsoft puzzle hunts (which are run by employees for fun, and not official company business) don't appear to run anything by lawyers.
My boy scout troop used to do scavenger hunt type things - not actually scavenger hunts, but clues suggesting locations of more clues - and the clues often used photocopied or excerpted stuff, some of which was copyrighted. Good thing no one sued.
Right, copyright and patents are fine for giant corporations, but once ordinary people get involved the system is totally unworkable.
CharleyCarp's comments here are really a microcosm of everything that prevents any sort of reform in this country. Sure, this thing may make life worse for virtually everyone that encounters it, but there's a few people who benefit from it, and hoo boy will they get mad if you try to change it. And what about the poor little shareholders / venture capitalists, who invested in good faith believing that this unfair loophole could be exploited in perpetuity throughout the universe. There better be a grandfather clause covering everyone currently alive.
355 is simultaneously nasty, unfair, and stupid.
I mean, that's not what he's been saying at all.
355 is the mortgage interest deduction in one paragraph.
It may be unfair and stupid, but I don't think the nastiness is any worse than his completely dismissive attitude throughout this thread.
Well, I for one have been trying to be polite. I didn't even mock Trapnel for suggesting that we could replace the film industry with legions of amateur Star Trek nerds working for free to make crappy fanfic movies. Come to think of it, that's my worst nightmare.
People making you eat refined grains and do strict pull-ups aren't worse?
I think a lot of those nerds are vegetarians.
This thread at orgtheory is worth reading too, by the way. I don't think we have reproduction rights, so you'll have to click through.
I've been extremely polite! I didn't even specifically call out any of the people saying stupid, stupid things in this thread.
Turned my participation around right there, I did.
In an attempt to do my part in getting this thread to 1000, I'm going to actually listen to the TAL episode.
Whoa... This guy from intel seems to be claiming that the name "patent troll" is not inspired by the usual internet use of the word "troll." This seems really implausible to me.
Trip, trap, trot, who's crossing the bridge ? The Billy Goats Gruff seem like the reference.
2: Could you explain to me why this doesn't just mean that any remotely complicated business is incredibly shady? It sure seems like the main points of shell companies are regulatory arbitrage, tax dodging, and other unethical shenanigans. Are there also nice normal ethical reasons for having shell companies?
I'm perfectly willing to believe that as a layperson I don't understand how big businesses work, but if it's all on the up-and-up then presumably there's some reasons for them that even laypeople can understand a little of.
Anyway TAL, like most journalistic outfits, really wants to feel like "reporters" doing sleuthing where they track down hidden secrets. Chasing shell companies gives them a chance to do that.
260
... but the damages are based on either statutory damages, which are small ...
You think $50000 is small?
$750-$30,000 per work, or up to $150,000 for willful infringement. In the context of a regular person's individual assets, that's obviously a lot of money. In the context of a major commercial venture, it's not that much.
88
I'm actually stunned there are so many people here willing to take the side of the patent trolls.
Why the surprise. As others have noted the Upton Sinclair quote is apposite:
I used to say to our audiences: "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"
Patent law is a lawyer's dream, there are enormous sums of money at stake and the law is very unclear. It provides a good living to lots of people who are naturally reluctant to believe they are cogs in an evil (which is too say anti-social) system. And you must be aware from past discussions that unfogged is infested with intellectural property attorneys.
(And yes my name is on a few patents so I am (or was) complicit in a small way myself).
370
$750-$30,000 per work, or up to $150,000 for willful infringement. In the context of a regular person's individual assets, that's obviously a lot of money. In the context of a major commercial venture, it's not that much.
I'm sure that's a big comfort to the small time bloggers sued for copyright infringement.
59
The point of the story, though, is that assuming IV is doing something wrong (and I think it is), you don't want to fix the problem in a way that keeps Sweet Sue from getting paid. You want to tighten way, way up on issuing bullshit patents, you want aggressive fee-shifting provisions, anything like that. But you don't want to make it impossible for a real innovator to enforce her patent just because she can't bring it to market herself.
Why? In my opinion the patent system does about 100 times as much harm as good. Much simpler to abolish the whole thing than worry about a few mostly imaginary Sweet Sues (who are actually more worried about losing the family farm to death taxes anyway).
I think this thread provides a better explanation of why Obama has disappointed everyone than all the ones that are explicitly on that topic.
312
It appears that infringers and those who represent them don't much care for patent law. People who own patents, and those who represent them (at least some of the time) have a different perspective.
I am not a lawyer or an infringer and I don't much care for patent law either. Looking forward to your analysis of the people whining about the Dred Scott decision. People who owned slaves had a different perspective too. Not that the patent system is evil on quite the same scale but the incentives to rationalize complicity are similar.
Now I'm going to feel bad that I didn't read like half of it.
If it makes you all feel any better, I'm happy to call these guys evil and abusive.
371.last: Oooh. Now I'm reading your patents...
I have to say it's hard for me to tell the alleged difference between math formulas and patents.
Strangely, math patents turn out to be even harder to read than math papers.
Oh I get it. To get a patent you have to remove all the actual formulas. This explains why it's harder to read. Similarly presumably software patents don't have any pseudocode.
I suddenly have new sympathy for patent examiners.
381: Yes, you're supposed to explain what is actually being done by the formulas. Typically when a patent includes an actual formula it is presumed to be useless.
Formula 408 is useless. Formula 407 is great but it makes your balls shrink.
356
355 is simultaneously nasty, unfair, and stupid.
On the hand I thought 355 was a good comment. And I suspect CharleyCarp's abrasive responses in this thread stem from the fact that deep down inside he fears he is on side of evil.
I really shouldn't be trying to catch up on this thread instead of sleeping but this
The problem of "orphan works" is real but not overwhelmingly significant, economically or culturally.
is bullshit. Yes, I know there's an argument that the work that could be done creatively or academically or heritage preservation...uh...ly but isn't being done on orphan works is not significant either. It's bullshit too. "Overwhelmingly" significant? Probably not worth a non-metaphorical war.
Although one thing I can say for orphan works is that, if my speculation is correct, it probably played a significant role in creating google books, as they could have made a lot of money out of orphan monopolies and I guess still could if they can resurrect their dead settlement. Even if they desert the field (which could happen, based on how they seem to have given up on newspaper scanning) people will be left with some progress on digitization. Actual competent and dedicated people (in this area, that is, google is competent and dedicated in other areas) will do, and indeed already are doing, a better job with the existing public domain scans. This includes everything from basic access to researching post-1923 copyrights. With an important exception for raw full-text search (not a surprise, given what google does).
I should acknowledge that the solution in 176 (which that quote was from) sounds reasonable to my non-professional eyes.* It's not clear how we're going to get to something like that, much less how we could get there without people thinking it's significant to make the reform in the first place.
*A professional wouldn't mix the metaphor.
383 explains a lot. You're never ever going to be able to have a rational system of software patents if examiners think in that way. Anyway, just a few minutes of poking around suggests that there's a ton of patents that would be much more clearly and easily explained with more formulas.
379-381
Yes US Patent 7080112 is an example of a software patent. In my defense it actually is fairly clever (although very narrow) and was primarily obtained for defensive reasons.
Yeah, that's the one I was trying to read.
I suspect CharleyCarp's abrasive responses in this thread stem from the fact that deep down inside he fears he is on side of evil.
If you're thinking of taking up a career in mind-reading, I suggest you keep your day job.
Oh wait no, I was looking at the related one that had square roots.
355 -- You're darn right reform is hard. If you think it's made easier by name-calling and assuming the illegitimacy of those with other views (eg 13), well, it might be even harder than you think.
386 -- I'm talking about being a big deal in the grand scheme of IP law and culture; you could enact UPETGI's scheme in re copyright and it wouldn't make much of a difference to most people's lived experience. Orphan works are a big deal for librarians and museums, particularly those who want to deal with photo collections, but in the grand scheme of things outside of the academy it's not really that big a deal; the real lock up problem is in works where there's an identifiable owner. I do support a compulsory licensing scheme for orphan works, though, or perhaps a declaration of diligent search being an immunity from suit.
Also, I think that there's a real chance for reform on the orphan works issue, mostly because it's not that big a deal for rights holders. Their only real fear is that the reform would create a serious infringement defense to use of the valuable stuff that they know they own.
hah, the 'no math' thing is totally crazy. 'please remove the facts from your document, so we can understand it'
395, 396: A couple of years ago I listened to a discussion (radio or podcast radio-style) between some people talking about book digitization. I can't remember if there was someone there actually from google or just from a google partner (i.e. a library). But his argument on orphan works kept coming down to "you want compulsory licensing? we tried that and it didn't work,* also look at all those books that have been scanned! do you not want them? huh? do you?" The other person was arguing for reform via licensing. Maybe things have improved.
The photo orphan problem is an issue with any library, archives, or museum with photos, which is close to all of them. Although it does not generally hold back in-person research use, which is important. Recently, many places have been timidly putting more stuff on their websites along with explicit promises to take down anything if the rightsholder appears and asks for it.
Books are an underestimated issue too, as it's now plausible for a library to put its entire (open) holdings online for its own community to use. It's easier than photos, though, because so many libraries have the same books, so you only need to clear copyright once. And really, unless there are problems with the physical volume, you only need one copy to be digitized.
Pre-1972 sound is also a mess, but I don't think orphans are the major part of it; instead, it's the weird relationship to the public domain.
On the other hand, I know for a fact that licensing can bring in enough money for some cash-strapped archives to help cover the cost of supplies. I'm not really on the radical anti-copyright/anti-patent side here, except maybe for software, just for reforms that create more flexibility.
*I had trouble following this part; there was clearly some history there, possibly even between the discussants themselves, and the format did not lend itself to explaining the background.
My suggestion wasn't just for orphan works. I think having escalating prices for renewal would also help a lot with the academic publishing issue. There are a lot of journal articles, and it probably wouldn't be worth it to renew most of them. (I'd want it to be per article, but even at per issue it might still make a difference.)
I mean I'd rather just have everything enter the public domain after a few years. (Let's see: it was originally 14, renewable for 14 more. But everything moves faster now, so 10 years sounds about right.) But obviously we'll never win a fight with the real moneymakers, so at the very least we can get most things into the public domain in a reasonable amount of time.
There's a second cut-off for some publications in the mid-1960s, I think, where post-1923 material went into the public domain if it wasn't renewed. I remember reading somewhere that a lot of journals actually didn't renew, but until someone does exhaustive research, everyone stays on the safe side. This is obviously less helpful, if the stuff goes public domain, in the less historical disciplines, but it's still. I once went through the process of looking up a mid-1930s article in an edited collection and seeing if it had been renewed - just on my own time - and it was really frustrating and there was no way of knowing for sure - in the sense that I was prepared to defend my conclusion - that it hadn't (but it looked like it hadn't). I wish I could remember the site where I found the instructions. A lot of the copyright volumes you need to look at are online.
394
You're darn right reform is hard. If you think it's made easier by name-calling and assuming the illegitimacy of those with other views (eg 13), well, it might be even harder than you think.
Being polite to the corrupt sellouts who defend the present system and pretending to take their ridiculous arguments seriously isn't going accomplish anything. Perhaps being rude won't accomplish anything either but it is more satisfying. Not that I see what was so rude about 13.
I'm not really on the radical anti-copyright/anti-patent side here, except maybe for software, just for reforms that create more flexibility.
Me too!
399 -- I'm not totally sure I understand the issue. Elseiver is charging you for a digital version of a back article to which it holds the rights and has digitized? I'd have to think more about escalating renewal price increases but it's not inherently a bad idea.
Oh, and I'm all for shorter terms. That's what I meant by not being really on the radical side. The overall framework seems justifiable to me, but the coverage in time and extent goes too far.
Frankly, if I somehow were to write a marketable history book, it's unlikely I'd argue for it to be open access.* Especially as I'm not doing fully-funded research right now. But 75+ years? That seems too long, even if it were in my (potential) heirs' interests.
*Dissertation, yes. This can create some complications, though in history dissertations are rarely publishable, much less marketable, and you generally should never rely on just the dissertation if (big if) there's also a book covering the same ground. Usually you go to the diss because its relative lack of discipline can mean it has useful facts and cites not in the book. I just looked at something like that a couple of days ago. Cost of dissertation, without ILL? Minimum 45$ for unbound paper. Fewer than 30 libraries own it; I lucked out with ILL. I will probably shell out for a different dissertation that only one library appears to have. No book on it.
403: Yes, the publishers charge you for everything they have in whatever run they've digitized. It doesn't matter if it's pre-1923 or pre-1964 or whenever. So far as I know, everyone does it. If stuff is public domain and they have it, too bad - you just have to find it elsewhere, if it even is elsewhere. The licenses given to the libraries/subscribers also enjoin you from re-using their particular scans.
One journal I know of, not Elsevier but in that family, has been digitized fully. But of the three major academic libraries I've checked none of them have pre-mid-1990s full text access. They all have the full print runs on their shelves. I suspect that the publisher sold them the database before the whole run was digitized and wants even more money to expand the service to include the full run. This appears to be how you can get journals sold as "current" and "backfile" - two different databases, same set of journals.
The word "extortion" is really beyond the pale. Reform is difficult but surely the most important thing is that all sides treat each other with civility and respect, otherwise it's just "total bullshit."
As explained by TAL, what IV is doing is an old-fashioned mafia-style protection racket. I don't think it's beyond the pale to call it what it is.
Selections from the journal of Philip Fithian, 1773-1774, published in the American Historical Review in 1899: $14.00 on JSTOR. This is obviously not a copyright issue since it's public domain and probably available somewhere but it gives you an idea of standard practice.
The comments with links at the orgtheory thread FA mentioned earlier really are worth checking out, especially the BusinessWeek and Tim Lee posts.
I think it's interesting that JSTOR now seems to allow you to browse everything even without a subscription, which it didn't used to do. This is probably not unrelated to the fact that you can now purchase by the article, or to the fact that it's parent (non profit) org has, in their recent filing, reported over $90 million in assets, over $60 million of that net. They aren't even the worst offenders in the charge-for-old-knowledge world.
406 -- I didn't say it was the most important. I don't think it's the most important.
When I point to 13, it's not because the word extortion is used, but rather the presumption that patents held by non-practicing entities are invalid. It's a defensible presumption, I suppose, to those who think that all patents are invalid, that the whole system is hopelessly corrupt.
1
Hey, copyright related question: is there any easy way out there to look up when currently copyrighted works go public domain?
I believe very little work is currently going public domain (due to the very generous current rules). All works before some date like 1923 are public domain. A lot of works after that date are also public domain because the rightsholder failed to renew but this is (I believe) very difficult to check. My family occasionally receives some (small) payments for rights to works that are probably in the public domain.
401 -- Works published between 1923-1963 for which the copyright wasn't renewed. Actually, most 1923-1963 works weren't renewed, so the bulk of materials from the 1920s-early 1960s should be public domain.
Actually, this was the chart I think LB was looking for in 1 -- should have linked to it earlier.
405 sounds like a problem with license agreements between the libraries, the universities, and the database owners like Elseiver who digitized the work; if they're charging for pre-1923 works copyright law isn't the problem and UPETGI's scheme wouldn't do any good anyway.
In most fields there's not that much interesting work before 1923. So you wouldn't bother going to the effort of setting up a database and doing scanning just for old old articles. If everything before 2000 were in the public domain, then surely someone (well, google if no one else) would already have them all up for free.
Yeah, as I understand it, the license agreements are problems just in themselves, but copyright plays a role in who has bargaining power.
If everything before 2000 were in the public domain, then surely someone (well, google if no one else) would already have them all up for free.
The real problem is that academic institutions shouldn't be putting out their noncommercial work in a commercial format. (But the problems with the generalization goes in both directions, of course; what makes sense for noncommercial use doesn't make sense for commercial culture).
As a practical matter, though, I wonder how big a deal this is. Isn't everyone who wants to read these things in a university with access anyway? And if the academic publishers and special societies all sold out to the publishers and are now getting screwed, they have noone but their own greedy selves to blame.
417.2 -- I've wondered -- and will now ask -- about the word "stolen" in 183. How did these entities acquire their rights?
Anyhow, I do think the academic world is largely at fault here. It's ridiculous that current journals don't put more of their stuff out without using a commercial publisher. And there's no reason why the learned societies that run the journals (the American Mathematical Society or whatever) couldn't have owned and maintained the rights to their own journals going back however many years and have made them easily available to members. If you're a charitable organization designed to promote the free dissemination of knowledge, act like it.
The problem with the license agreements with Elseiver sound like they could be easily solved through the following arrangement: Elseiver gives you the older articles for free or else you stop giving them any new material. But it sounds like there's a real unwillingness to deal with these issues, probably because it's just a minor annoyance and not actually that big a deal for most academics.
I really do need to go to sleep now, but
Isn't everyone who wants to read these things in a university with access anyway?
No. Some of the subscriptions are so expensive that very few places have them. You might be a top-tier research university and still not have it. Interlibrary loan can't always overcome this.
There are also lots of people who can benefit from this research but can't get it: journalists (see discussions of this with respect to sociology/political science especially), engineers, including sometimes software engineers, people in social services, people working for non-profits, people in community colleges which almost never have extensive subscriptions, people in schools, independent researchers.
The thing is, the fact that so many people actually do or could use academic stuff shows that there actually is a market for it, and that there actually is some justification for copyright along the normal copyright justification lines. What's not clear is what pricing would look if the market weren't so full of monopolies and bundles and if copyright weren't for essentially forever. Someone is actually paying for some of those articles at exorbitant prices, but it's not clear who's doing so, or even what is selling, and more importantly, it's not clear whether this benefits the public more than an alternative system.
418: First governments changed the rules to extend these "rights" (without the approval of the original producers). Second big companies purchased smaller companies. Presumably there's an intermediate stage of small companies owned by actual people becoming publically owned. I'm having trouble finding the whole history for some particular journal.
re: copyright.
The EU has a big program to try and solve the problem of copyright ambiguity for mass digitisation programs. There's a notorious 20th century black hole. Libraries and archives mostly don't digitise them, or make them publicly available, because of fear of copyright infringement. However, a lot of it is in the public domain or copyright can be cleared as it rests with people who won't mind it being digitised and/or distributed online.
So:
http://anonym.to/?http://www.arrow-net.eu/
Basically they have the library catalogues of all the major national and research libraries, plus various books-in-print and publishers databases, and then they do a load of clever search integration and machine learning stuff to identify the oldest instance of a particular work, the nation it was from, the language it was in, and so on, and then that is used to provide a definitive answer for whether it's copyright, and also to partly automate the process of clearance. It sounds quite simple but the tech behind it is actually quite sophisticated.
This leaflet has more:
http://anonym.to/?http://www.arrow-net.eu/sites/default/files/ARROWtrifoldMAR2011.pdf
The AMS is doing fine here (they've always had their own journals, they still have them, and they charge moderate prices for them that stay in the profession). I think it's mostly a problem with European publishers.
re: 421
That's the sort of problem that Arrow is designed to solve.
'When was this article first published? Who held the rights? Who holds the rights now?'
Isn't everyone who wants to read these things in a university with access anyway?
No. Partly what FA said at 420. But also, just think for a moment about scholars and scientists in, e.g., India, China, Brazil, to say nothing of truly poor countries. If you're someone who believes access to knowledge matters, the fact that much of the world is effectively priced out is a serious problem.
If this conversation is still going on tomorrow, maybe when I'm taking a break from likely infringing on moral obligations to the past - but not copyrights or patents, it's all legally permissible - tomorrow and try to respond to 419.
But among the points UPETEGI has been making is that decades ago when you signed over your rights to a publisher, you were doing that because there really wasn't an alternative way to get your research to a large audience. Now there's essentially no way to get those rights back. (On preview, as UPETEGI points out, there have also been some huge mergers leaving the field with very few, but mostly very large, players.)
But it's true that scholarly societies can be offenders too. Some of them don't have a whole lot of money and use journal revenue for more than journal publishing needs; some of those per-article prices you see are actually the societies themselves charging for their own journal back issues. Some of them probably just like being gatekeepers, and the current system supports that.
Current research is obviously in a somewhat different situation, although I'll reiterate that permissions are a non-negligible issue in the fields I work in. The humanities are all about derivative works, even when they're being original.
First governments changed the rules to extend these "rights"
Well, in the United States, at least, by 20 years in 1998, mostly in a way that probably wouldn't have affected most things you were looking for that much (unless you were looking at a lot of papers from the late 1920s). I know everyone hates the CTEA, but that's not really the cause of your particular problem here. It's that you had rights in journals held by (presumably) small publishers who sold them to bigger ones.
What's not clear is what pricing would look if the market weren't so full of monopolies and bundles and if copyright weren't for essentially forever. Someone is actually paying for some of those articles at exorbitant prices, but it's not clear who's doing so, or even what is selling, and more importantly, it's not clear whether this benefits the public more than an alternative system.
Yes, this does sound odd. It's the monopolies and bundles that's probably driving most of it, though, not the copyright term. It just doesn't make sense if the subscription price for journal databases is so high that even top-tier universities can't purchase access.
As a solution, it would probably make the most sense for there to be some sort of joint university effort to simply buy back the rights to a lot of this stuff, but I suspect there is money changing hands between the publishers and some of the universities.
Also the first option on the AMS's standard form has thethe work to enter the public domain in 28 years. That's still too long, but it's progress.
Now there's essentially no way to get those rights back.
If I hadn't already been burned making lawyer jokes upthread, I'd respond that people should have conveyed shifting executory interests. As it is, thanks both of you for explaining the problem. Night.
427: When I say "changed the rights" I don't mostly mean term length. I mostly mean saying that the monopoly on physically printing copies extends to a monopoly on the right to put it on a webpage.
Ah yes, 430 makes sense. And 428 sounds like exactly what a charitable society should be doing. The best solution would be for university consortiums to just buy the stuff back.
Jesus fuck, James, US Patent 7080112 would be so much easier to read in code - any code. Couldn't they hire some impoverished CS graduates to evaluate these things and save people like you the hours of labour involved in turning it into pseudo-English? (Albert Einstein used to work in a patent office, it's not like there's a deep seated prejudice against employing people with the relevant skill set.)
My work system blocks ttaM's Arrow links as "advertisements and pop-ups". What's that all about?
I supppose the problem with code as a patent is that it becomes more or less indistinguishable from copyright. How do you (the PTO, someone do a patent search) tell what the actual patentable invention is (as opposed to a specific implementation) without an English language description. Of course that doesn't preclude giving code as an illustration, or including formulas in the description.
More IP law for control, not profit. Daily Show episode banned in Britain for using footage of Parliament in a comedy show. Got to love the British constitution.
re: 433
It's probably the anonymiser, which might trigger blocking. If you take that off and just use the arrow-net.eu link, it should work fine.
I don't know why I didn't just post the normal links. Vague paranoia since I'm working on some projects that sort of peripherally share staff with the Arrow people, but it's not like they are going to be following links back from their referrer logs anyway.
432
Jesus fuck, James, US Patent 7080112 would be so much easier to read in code - any code. Couldn't they hire some impoverished CS graduates to evaluate these things and save people like you the hours of labour involved in turning it into pseudo-English? (Albert Einstein used to work in a patent office, it's not like there's a deep seated prejudice against employing people with the relevant skill set.)
The patent was actually written by a lawyer. The patent system seems designed in large part to provide employment for lawyers.
434
I supppose the problem with code as a patent is that it becomes more or less indistinguishable from copyright. How do you (the PTO, someone do a patent search) tell what the actual patentable invention is (as opposed to a specific implementation) without an English language description. Of course that doesn't preclude giving code as an illustration, or including formulas in the description.
Actually in a rational system (in the context of software) you wouldn't be able to protect anything other than the specific implementation which copyright does. So you shouldn't be able to patent software at all. Anymore than you can patent the concept of a story in which a boy meets a girl.
434: If a formula was used to create the invention it will be described in the application, just not in the claims.
Patent litigations are frequently decided by a jury. It's much harder for a jury to accept that someone is infringing an equation with all those crazy symbols and numbers than a description of the equation.
183
... now own the sole legal right to post our work on the internet forever. ...
Is this really the case? I haven't kept up and don't currently have access to the releases I signed but I was under the impression that I still have (at least in most cases) the right to put my papers on a personal website. Has Congress retroactively ratified some bogus interpretation of typical release language to the contrary? In which case "stolen" seems like a reasonable characterization to me.
441: Most current agreements with journals allow you to post a version your own work on the arXiv and/or your own site. However, I don't think such agreements retroactively apply to older papers. Even if they did, you'd still have to individually track down the relevant person or heir and get them to post the paper themselves.
Come one James, don't be absurd. You can't patent the equivalent of "boy meets girl", that's an exaggeration. It's more like you can patent "boy meets girl... on a boat".
The main paper I've written so far belongs to Elsevier, but all the data and virtually all the words, verbatim, are also in my PhD thesis which belongs to me, is up on the internet for free, and is just as findable in Google Scholar, though not in Pubmed.
On "isn't everyone who needs these journals in academia?"
No, there are a lot of gov't research and service offices that don't have subscriptions (like USGS and rural extension and public health; I suspect Livermore is OK).
443: Or "a story of boy meets girl transferred from an author to a reader via a book."
444: But where is it hosted? In the short run "google scholar can find it" is ok, but in the long run if it's not hosted on a real archive maintained by someone then the webpage will eventually stop working.
No, there are a lot of gov't research and service offices that don't have subscriptions (like USGS and rural extension and public health; I suspect Livermore is OK).
Also, the press.
447: I don't know what a "real archive" is, but it's part of the archive maintained by the university I got the PhD from.
449: That's probably ok. Presumably their actual library is behind it. It's still not as good as a larger collection not attached to just one school, but it'll do (especially if your field doesn't have something good set up yet).