IP laws are flawed today in their implementation but it is a serious mistake to say that they are what is blocking innovation in America.
It is easy to pick some extremes of flawed implementation of IP laws and to ridicule their effects. Software patents have been seriously abused to block innovation, with the prototypical troll being, in effect, the equivalent of some lawyer sitting in a back room endlessly "conceiving" ideas from which extortion-style demands can be exacted. So too with things like the RIAA-led lawsuits demanding millions in damages for the downloading of 20 songs or the Disney-inspired extensions of copyright terms to ridiculous lengths having nothing to do with protection of any conceivable right of an author. Such items can readily and rightly be mocked and cast as the absurd anti-innovative creatures that they are. Nor does it help that the beneficiaries of such legal aberrations are often large and powerful companies, lawyers and lobbyists, and others who might be characterized as the antithesis of innovation in any productive society.
That said, IP laws do not in any sense categorically block innovation and, indeed, remain essential to it.
To understand the true importance of IP laws, we need to look at fundamentals. Property is both tangible and intangible. You can touch the former and physically transfer it to someone else. It is a thing that is possessed by someone and such possession excludes or limits possession by others because it is a finite resource that can only be shared so much. In the modern age, in contrast, intangible property is capable of almost infinite replication with few, if any, incremental costs. The temptation exists, then, to say that all such property should be commonly shared because it can be so shared and because people will use it to make advancements for the betterment of themselves and society. In other words, there presumably is no cost to making all information free, legally unprotected, and infinitely shareable. Or so the thinking goes.
But this assumption is not sound.
IP laws are designed to protect all forms of intangible property having commercial value. This means patents (which protect inventions), copyrights (which protect any tangible embodiment of an original work of authorship), trademarks (which protect the distinctiveness of the origin of goods or services), and trade secrets (which protect any form of valuable confidential and proprietary information).
These laws are so built into the fabric of the startup world that we normally just take them for granted.
For example, no startup could hope to survive without laws protecting trade secrets. Without such laws, whatever information or knowledge base you have in your startup that is unique and valuable could be lifted at will by any passing person: an employee who passes through and copies such information wholesale to give it to a competitor; the janitor who comes in at night who decides to publish it on the internet; someone who breaks into your network, copies it all, and then shares it with the world or, worse, if it is a competitor, who uses it to compete against you. If you once take the legal position that all information is free and freely shareable, then all protections for your confidential business plans, for your technical innovations, for your execution strategy, for your database of key customers, personnel, marketing data, etc. evaporate and you can no longer derive any competitive advantage from any of this as long as anyone gets his hands on it and makes it public.
Founder groups would have the same problem in pre-formation situations. Say, four founders build something that they have worked on for a full year and are prepared to launch. One of them defects and says to the group, "I am going to take everything that we have worked on and take it for myself." Of course, that is outrageous. Buy why? Because laws exist that declare it illegal for someone to misappropriate what the founders have been working on. Those are IP laws. They protect the interests in intangible property. Without them, every founder would be vulnerable to such defections, without any form of legal recourse.
Copyright serves a similar function. Whenever a startup relies on proprietary code, it is copyright (along with trade secret laws) that ensures that the work product of the company can't simply be lifted at will and used in any way that the person taking the code desires.
Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
I could go on with this but, having already noted the potential for serious abuse when such laws are ill-formed, I think I have said enough to show that IP laws lie at the foundation of the startup world and are not in themselves the enemy. There are philosophical arguments to be made that all information should be freely shareable but any society based on that premise would be radically different from the one in which startups thrive today.
Startups depend heavily on IP laws. Such laws have great value in today's startup culture and ought to be recognized for that contribution. Reform them, absolutely; abolish them, don't even think about it (unless you are ready to embrace a philosophically extreme position about all forms of intangible property ownership). I don't believe most people are prepared to embrace the extreme position and, hence, one ought to be careful about castigating that which is good while condemning that which we can agree is bad.
Bottom line: IP laws do not kill innovation and, on the contrary, are vital to it. Flawed IP laws stink and need to be reformed.
For example, no startup could hope to survive without laws protecting trade secrets.
The assumptions here are that your secrets give you an advantage by being secret, that they're easier to steal than to rediscover, and that that advantage is necessary to success. These assumptions are not universally correct, and I suspect that their degree of correctness is rather strongly overestimated.
Founder groups would have the same problem in pre-formation situations. Say, four founders build something that they have worked on for a full year and are prepared to launch. One of them defects and says to the group, "I am going to take everything that we have worked on and take it for myself." Of course, that is outrageous. Buy why? Because laws exist that declare it illegal for someone to misappropriate what the founders have been working on. Those are IP laws. They protect the interests in intangible property. Without them, every founder would be vulnerable to such defections, without any form of legal recourse.
That doesn't sound like any of the standard copyright/patent/trademark/trade-secret categories, it sounds like it has something to do with (probably implied) contracts.
Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
So then Postgres, SQLite, the BSDs, clang, etc are freeware instead of open source?
Startups depend heavily on IP laws. Such laws have great value in today's startup culture and ought to be recognized for that contribution. Reform them, absolutely; abolish them, don't even think about it
I don't think that's a sound argument, we've done just fine abolishing other practices that businesses seemed to depend on. What is observed to happen when/where such laws don't exist or are generally ignored?
These laws are so built into the fabric of the startup
world that we normally just take them for granted.
You're trying to defend something without considering the opportunity cost of it. I can understand why - you don't know what the opportunity cost is. None of us do. But that doesn't make your defence valid.
If the government gave people privilege for howling at the moon, there would be a startup scene around it. That's not a defence of the policy.
For example, no startup could hope to survive without
laws protecting trade secrets
That blanket statements is false. Even if it were true, there are mechanisms that predate conceptions of IP that can be used to defend trade secrets, particularly contract.
Startups depend heavily on IP laws.
Only some do. And then there are a raft of startups that can't and don't exist as a result of IP laws.
"IP laws are designed to protect all forms of intangible property having commercial value. "
Wrong.
IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies.
I'm not saying that's good or bad. I'm just pointing out that you're a practicing lawyer lecturing others about "fundamentals" of law that you - fundamentally - don't understand.
> For example, no startup could hope to survive without laws protecting trade secrets.
Existing theft and trespassing laws already outlaw unauthorized physical access to your property. As for disgruntled or opportunistic employees, you can utilize existing contract law to ensure their doing so is illegal. What exactly do trade secret laws cover that aren't covered by more reasonable and fundamental laws?
> Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
That's why I have strong feelings that the free software movement, or at least the GPL, is insanely contradictory. Their claim is that there shouldn't be liberty restrictions placed on software, but what they really mean is there should be different liberty restrictions placed on software, specifically the ones they happen to like more. In my opinion, software isn't really free unless it's in the public domain (or, nearly equivalently, if there were no longer any intellectual property protection for software).
Most of your points are simply that removing the various forms of intellectual property protection would harm some people. The validity of your specific examples are variously debatable, but even if you're right, I don't think that's a good enough argument for keeping the laws around. I can't conceive of any legal modification that wouldn't harm someone. In my opinion, even if something might harm startups (and I'm certainly not convinced that IP laws are vital to startups), that's not a sufficient argument.
(GPL-style) Open Source only relies on copyright because of how guarantees of reciprocal freedom are currently tacked on top of it (it is a hack).
It should not be too hard to imagine 'implementing' it in a different way.
Such as through a specific law that required giving users access to the source code (and other freedoms, possibly extending to derivative works) if a certain piece of software were marked as Open Source (or for all software, as Stallman would probably prefer it).
(yes this might make Open Source software a less attractive alternative, as it would be competing against free as in a free lunch, but as the market-landscape would be changed in favor of FOSS production models as well, by this, and FOSS has certain benefits even if produced for a fee (ability to hire competing firms for implementing fixes and modifications), there are good reasons to assume FOSS would still flourish)
It keeps surprising me how otherwise intelligent/educated people don't see this option...
Peititio principii. Many argue that even the phrase "intellectual property" is disingenuous; a term invented by the entrenched stakeholders to gain support for the laws they would like passed by creating a false analogy between physical property and knowledge.
Even if one disagrees with the notion of abolishing all intellectual property laws[1], there is value to Groklaw's argument against them. An extreme point of view can serve to anchor the discussion closer to what one might consider ideal (e.g. a hypothetical "founders' copyright," with 14/28 year terms, or n-year patent terms where n is << today).
[1] I have to admit I am intensely curious what the world would look like if suddenly all IP laws were abolished. I imagine there would be a brief frenzy of copying and exploiting, but eventually a new equilibrium would be achieved and innovation would continue but under some other motivation.
It's crippling innovation before people even begin. I was chatting about encryption with some young chap, and I suggested a good way for him to learn about the practicalities of it would be to just sit down and code. He was astonished; he genuinely thought that the principles behind common encryption tools were in some way exclusive property of various companies and that he was legally forbidden from coding up his own implementation.
This is a true story and it's a belief that is on the streets right now; some people believe even mathematics is legally owned by someone and they can't use it. If people won't experiment, they can't innovate.
Note that the countries that don't give a damn about so-called IP happily copy everything they can get their hands on. It will not take them long to start innovating on top of what already exists.
I'd be willing to bet that this attitude in young people is greatly influenced by the constant hammering of media produced for young people on the point that IP violation is a crime that will get you put in prison.
Disney makes a lot of the entertainment for young people in America. They harp a lot on piracy being a crime that gets you arrested immediately, regardless of the truth - I don't watch a lot of Disney, but I can think of two instances right off the top of my head, one being an episode of iCarly, and the other being Minute Men, a made-for-TV movie my kids and I watched last night on Netflix.
"Let's take Android. It's something new and the world is loving it. So what happened once it became a hit? Patent and copyright infringement lawsuits up the kazoo. Is that going to encourage innovation? And it's not just Android. It's any successful technical product. They all have to spend millions in litigation. And it's a drain on the economy too, because when the plaintiffs win, that money isn't a win for innovation, not when the law allows patents to be owned and litigated by entities that make nothing at all but litigation.
See what I mean? When the law overprotects, it kills innovation. That's what protection means. It means protection from innovation. Let's call a spade a spade."
First, you'd have to show that innovation is being blocked in America, considering that most software innovations come from there.
While in need of some tuning, IP laws seem to be working as advertised: you can't release a product that copies 90% of another product, you actually have to innovate.
Look at Android: they had to navigate around dozens of Apple patents and they still did fine and they have come up with an impressive set of innovations.
When plagiarizing is outlawed, you have no choice but innovate.
One of the foundations of America's success in the earlier years (up to the beginning of the 20th C) was its general disregard for IP laws. British manufactures were constantly complaining about American's using their designs, manuscripts, etc without payment, as well as state to state infringement (Hollywood started in CA to get away for legal oversight).
The article is spot on: legal protection is protection from innovation.
Bingo. Cory Doctorow's take on it is informative, even if you don't agree with his conclusions, as he covers a lot of this; it heavily features our old friends, the music publishers (who became a viable business themselves, back in the day, only by taking the music that already existed and selling it on without permission).
Well worth reading, and comes under a creative commons licence.
There was not necessarily disregard of intellectual property at least when Americans were the owners. Many things like the creation of the commercial sewing machine in the mid 1800s were strongly encouraged by patent and intellectual property protection, despite the fact that patent thickets arose -- i.e. many competing individuals held patents covering individual components necessary to a good sewing machine. How these issues were resolved actually has great relevance for so-called modern issues of "patent trolls," since they existed back then too.
The answer is not quite correct. Corporate protectionism is what destroys innovation. Abuse of the patent and copyright systems is part of corporate protectionism.
Patent and copyright are great things to protect the little innovator guy that starts a new business from being sodomized by the big corporations that lobby congress for laws that benefit only themselves.
Reform is necessary. Right now, companies are patenting things that were invented by other people. Right now, little people with patents are getting their IP stolen from big corporations with lawyers who file legal action solely for the purpose of bankrupting the little guy and taking his property.
These things are not a problem with the concept of protecting innovations through IP law. They are a problem with corporate abuse of the system and a corrupt government.
Except that software patents don't even function for the little guy, because even if it was only 'little guys' using software patents, it would cost too much to check your code against every other existing patent
Patent and copyright are great things to protect the little innovator guy that starts a new business
I think you read that in a book somewhere. I bet you don't personally know a single "little innovator guy" who has successfully been protected by a patent.
Somebody invented the knife you use to eat, the pants you're wearing, the mattress you sleep on, and you are not paying a dime in royalties. You are standing on the shoulders of giants and you pretend those who come after you to pay you for your invention, even if many unlucky people invented the same thing but were just seconds late to the patent office? I have a word for you, damn parasite, fuck you.
More often than not, the other independent inventors didn't feel the idea was worth patenting, didn't have the money to spend building a meaningful patent portfolio, or didn't want to feel like human scum.
Lawyers and Bureaucrats. Pretty much every single branch of gov't save for the DOD and DOJ stifle innovation (DOJ in the grand scheme of things stifles innovation by enforcing the laws for other branches). Start by letting parents send their children to a school of their choice. Continue by making it easy for those children (when they reach adulthood) to start businesses, and continue by making the burdens of running that business as few as possible. It might be a little burdensome to file a tax return for the company you buy a computer from. (Medicare tax code changes)
Continue by allowing the free flow of information and creating transparent gov't so that the private sector may also innovate gov't.
If Obama went back to his election night speech and started governing like that I'm sure he'd find the answers quite quickly. However, a rhetorician as skilled as President Obama knows that the point is not to find the answers but to be seen asking the question.
The DOD also stifles innovation through the taxes and inflation required to keep it going, and by encouraging crony capitalism and corruption through awarding contracts to politically connected companies. Also by propping up dictators and bombing/kidnapping/torturing people and generally interfering with the democratic rule of law. Definitely wouldn't leave them out.
Yes, this is true, if you want the President of the United States to advocate for a Total War in the legislature --- one, by the way, which he will lose --- solely for the sake of clearing the way for entertainment content startups.
I think current IP laws are killing innovation and it has nothing to do with "entertainment content".
It used to be that I could sit down at a computer and innovate-up a useful program and no one could say I couldn't. Maybe even try to make a business out of it. Now it's all-but impossible to do that without incurring this large and unknown risk of litigation from holders of patents of wildly varying degrees of novelty.
The system is broken. It needs to be thrown out.
I doubt Obama is the one to do it, he seems to have his head in the status quo as much as any lawyer.
I think this is a symptom of a larger problem with American governance, namely that lobbyists for entrenched interests have too much power and the general population (innovators included) has too little.
I'd rather attack the root cause with a constitutional amendment that states "All legislators must live full-time in their home districts", and have them conduct official government business through email and videoconference. That makes lobbying impractical: a company that wanted to lobby Congress would need to station lobbyists in all 435 congressional districts, and the lobbyists would have no more pull than an ordinary citizen that the representative happened to be friends with. The reason big companies have the sort of clout that they do in American politics is that there are economies of scale to political power, and once you have scale, you can buy more of it.
Problem? The title told me it was going to be a highly-emotional appeal to an audience already primed to agree with it. And the vote score only confirmed that assumption. Time to put on the old critical thinking hat.
What a great article! It was a wonderfully-put-together rant about what is wrong with IP law. I agree with every point -- including the outrage the author felt.
The only thing I didn't agree with? The premise -- that IP laws are blocking innovation.
Yes, as the examples show, there is a great amount of innovation that is being stifled by IP laws, and something is desperately needed to fix it. But let's not get caught up in all that emotional outrage at how screwed up things are. Instead, ask a simple question: to what degree is all innovation stifled by IP laws? Because that's the claim: that every kind of innovation is being stifled by the current crappy state of IP laws.
Clearly that's not the case at all. The newspaper boy who invents a new newspaper folder isn't being stifled. The restaurant owner who comes up with a way to wait more tables with less staff isn't being stifled. The media creator who packages his product in a way to increase stickiness isn't being stifled. It's just a bunch of examples that members of this audience already know and are sympathetic with.
I could go on. And on and on. So yes, in this one area in which we are all pretty damn angry to begin with, IP laws are totally destroying innovation. But in the other thousand or so areas from which most of us have little experience, they are not.
I loved the rant. And I love a great title and this article had one. A little hyperbole is good for the soul. So while I have no faults with the article, I'd just recommend a little bit of common sense when dealing with a premise so over the top. People have a tendency to take whatever they're really angry about -- and then apply it to whatever problems the world is facing. IP law is not stifling all innovation. It isn't even coming close. But it's definitely horribly broken and needs to be fixed.
Does anyone know which places with relatively developed economies have the weakest IP laws? I would guess Hong Kong, Singapore, or China but I don't really know.
I've been working on a rather ambitious piece of software and I'm definitely worried that I'll get sued into oblivion over some minor user interface feature before I ever really make any money off it. I've lived all my life in the U.S. but would entertain the idea of leaving.
In fact if I'm going to leave my home town I feel like I might as well go someplace more exotic than Silicon Valley or New York. IP laws and other business concerns would definitely be an important criteria if I got serious about it.
Oh don't leave. For one thing, you won't be able to sell in to the US regardless of where you live. Patents allow them to block imports as well as sue your customers directly. Secondly, you're not likely to find a particularly level playing field if you, as a Westerner, are trying to compete in Asia.
If its a minor UI feature, you can just change it. And if you haven't made any money off of it then they will not get much in damages.
The big worry is if you'd made tons of money off of it or if it is a big part of your program.
And the way patent litigation typically works in the US it will be small companies suing large companies. So you can sue Google or MS for using your great idea. Rarely will they sue you. You generally need to be on their radar for this to happen, which usually means being a threat to one of their businesses.
At this point, moving anywhere over this is crazy premature.
So I have been known to make the claim that the next great re-flowering of tech will begin in 2015 and grow solidly through 2020. I base that claim on the observation that patent silliness really ramped up in 1995 and grew exponentially to 2000, those patents expire between 2015 and 2020. And while technology overwhelmed the ability of patent examiners to credibly evaluate its novelty or newness, that doesn't matter once the patent is now public domain.
This is a great article full of examples about why IP law has hampered innovation. But it fails to answer a very important question: what should be done by the government to remedy it?
The first and simplest part of lobbying is identifying the problem. The much more challenging part is following up with useful recommendations on what should be done to fix it.
In terms of software patents, should the executive branch propose a bill to forbid them? What would the outcome of that be? How should copyright law be reined in? These are the questions that the next generation of policymakers need to solve and the recommendations we need to be sending to our respective governments.
Patents are one way people can make deals with innovators that can make some innovation more likely, but its not the only way this could be done.
I think the coercive element, the idea that someone can be sued for doing something they have an inherent right to do is the problem.
It is one thing when people agree that they need something and offer to buy it exclusively from whoever creates the first viable product. It is quite another to coerce everyone to do so.
That said, we should not hand out monopolies that are not in the interest of most citizens. And what is in our interest is determined rather badly with winner-take-all elections and the power they give to lobbyists.
It's relatively easy to downsize IP laws with a single change: If they are property, tax them as property.
e.g.
Every year, a patent/copyright/trademark owner has to state the value of their "property", and pay 1% tax on its value. That entitles them to sue each defendant for said value (maybe 3 for wilful infringement, but that's it). You can make it easier by declaring the value of the "property" at any point in time during the year until 15-apr the following* year, so you can evaluate in retrospect.
Now, all of a sudden, it doesn't make sense to hoard patents or copyrights as much - If you value each song at $100K, then it costs $1K/year to maintain that copyright.
I'm sure Intel/Microsoft/Apple would actually evaluate what does and doesn't need patent protection when they have to pay millions of dollars per year to maintain it.
Furthermore, it's only reasonable - paying tax for having the state enforce your "property" rights.
The answer is probably not to get rid of all protection of IP though. I think a change to the law to prevent obvious patent trolls would be beneficial on the other hand.
Or maybe a sort of AI enhanced service that automated the 'legal hacking' involved in navigating the world of patents. Like as well as writing unit tests for your code, you write 'patent tests' which allow the search tool to determine if you're code/product is infringing any patents and if so how to avoid infringement.
[+] [-] grellas|15 years ago|reply
It is easy to pick some extremes of flawed implementation of IP laws and to ridicule their effects. Software patents have been seriously abused to block innovation, with the prototypical troll being, in effect, the equivalent of some lawyer sitting in a back room endlessly "conceiving" ideas from which extortion-style demands can be exacted. So too with things like the RIAA-led lawsuits demanding millions in damages for the downloading of 20 songs or the Disney-inspired extensions of copyright terms to ridiculous lengths having nothing to do with protection of any conceivable right of an author. Such items can readily and rightly be mocked and cast as the absurd anti-innovative creatures that they are. Nor does it help that the beneficiaries of such legal aberrations are often large and powerful companies, lawyers and lobbyists, and others who might be characterized as the antithesis of innovation in any productive society.
That said, IP laws do not in any sense categorically block innovation and, indeed, remain essential to it.
To understand the true importance of IP laws, we need to look at fundamentals. Property is both tangible and intangible. You can touch the former and physically transfer it to someone else. It is a thing that is possessed by someone and such possession excludes or limits possession by others because it is a finite resource that can only be shared so much. In the modern age, in contrast, intangible property is capable of almost infinite replication with few, if any, incremental costs. The temptation exists, then, to say that all such property should be commonly shared because it can be so shared and because people will use it to make advancements for the betterment of themselves and society. In other words, there presumably is no cost to making all information free, legally unprotected, and infinitely shareable. Or so the thinking goes.
But this assumption is not sound.
IP laws are designed to protect all forms of intangible property having commercial value. This means patents (which protect inventions), copyrights (which protect any tangible embodiment of an original work of authorship), trademarks (which protect the distinctiveness of the origin of goods or services), and trade secrets (which protect any form of valuable confidential and proprietary information).
These laws are so built into the fabric of the startup world that we normally just take them for granted.
For example, no startup could hope to survive without laws protecting trade secrets. Without such laws, whatever information or knowledge base you have in your startup that is unique and valuable could be lifted at will by any passing person: an employee who passes through and copies such information wholesale to give it to a competitor; the janitor who comes in at night who decides to publish it on the internet; someone who breaks into your network, copies it all, and then shares it with the world or, worse, if it is a competitor, who uses it to compete against you. If you once take the legal position that all information is free and freely shareable, then all protections for your confidential business plans, for your technical innovations, for your execution strategy, for your database of key customers, personnel, marketing data, etc. evaporate and you can no longer derive any competitive advantage from any of this as long as anyone gets his hands on it and makes it public.
Founder groups would have the same problem in pre-formation situations. Say, four founders build something that they have worked on for a full year and are prepared to launch. One of them defects and says to the group, "I am going to take everything that we have worked on and take it for myself." Of course, that is outrageous. Buy why? Because laws exist that declare it illegal for someone to misappropriate what the founders have been working on. Those are IP laws. They protect the interests in intangible property. Without them, every founder would be vulnerable to such defections, without any form of legal recourse.
Copyright serves a similar function. Whenever a startup relies on proprietary code, it is copyright (along with trade secret laws) that ensures that the work product of the company can't simply be lifted at will and used in any way that the person taking the code desires.
Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
I could go on with this but, having already noted the potential for serious abuse when such laws are ill-formed, I think I have said enough to show that IP laws lie at the foundation of the startup world and are not in themselves the enemy. There are philosophical arguments to be made that all information should be freely shareable but any society based on that premise would be radically different from the one in which startups thrive today.
Startups depend heavily on IP laws. Such laws have great value in today's startup culture and ought to be recognized for that contribution. Reform them, absolutely; abolish them, don't even think about it (unless you are ready to embrace a philosophically extreme position about all forms of intangible property ownership). I don't believe most people are prepared to embrace the extreme position and, hence, one ought to be careful about castigating that which is good while condemning that which we can agree is bad.
Bottom line: IP laws do not kill innovation and, on the contrary, are vital to it. Flawed IP laws stink and need to be reformed.
[+] [-] tbrownaw|15 years ago|reply
The assumptions here are that your secrets give you an advantage by being secret, that they're easier to steal than to rediscover, and that that advantage is necessary to success. These assumptions are not universally correct, and I suspect that their degree of correctness is rather strongly overestimated.
Founder groups would have the same problem in pre-formation situations. Say, four founders build something that they have worked on for a full year and are prepared to launch. One of them defects and says to the group, "I am going to take everything that we have worked on and take it for myself." Of course, that is outrageous. Buy why? Because laws exist that declare it illegal for someone to misappropriate what the founders have been working on. Those are IP laws. They protect the interests in intangible property. Without them, every founder would be vulnerable to such defections, without any form of legal recourse.
That doesn't sound like any of the standard copyright/patent/trademark/trade-secret categories, it sounds like it has something to do with (probably implied) contracts.
Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
So then Postgres, SQLite, the BSDs, clang, etc are freeware instead of open source?
Startups depend heavily on IP laws. Such laws have great value in today's startup culture and ought to be recognized for that contribution. Reform them, absolutely; abolish them, don't even think about it
I don't think that's a sound argument, we've done just fine abolishing other practices that businesses seemed to depend on. What is observed to happen when/where such laws don't exist or are generally ignored?
[+] [-] cturner|15 years ago|reply
If the government gave people privilege for howling at the moon, there would be a startup scene around it. That's not a defence of the policy.
That blanket statements is false. Even if it were true, there are mechanisms that predate conceptions of IP that can be used to defend trade secrets, particularly contract. Only some do. And then there are a raft of startups that can't and don't exist as a result of IP laws.[+] [-] alexqgb|15 years ago|reply
Wrong.
IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies.
I'm not saying that's good or bad. I'm just pointing out that you're a practicing lawyer lecturing others about "fundamentals" of law that you - fundamentally - don't understand.
[+] [-] baddox|15 years ago|reply
Existing theft and trespassing laws already outlaw unauthorized physical access to your property. As for disgruntled or opportunistic employees, you can utilize existing contract law to ensure their doing so is illegal. What exactly do trade secret laws cover that aren't covered by more reasonable and fundamental laws?
> Open source is no exception. It relies heavily on rules of copyright law and on licensing to make its system work. If everything were freely shareable without any form of restriction, one does not have open source - one has freeware.
That's why I have strong feelings that the free software movement, or at least the GPL, is insanely contradictory. Their claim is that there shouldn't be liberty restrictions placed on software, but what they really mean is there should be different liberty restrictions placed on software, specifically the ones they happen to like more. In my opinion, software isn't really free unless it's in the public domain (or, nearly equivalently, if there were no longer any intellectual property protection for software).
Most of your points are simply that removing the various forms of intellectual property protection would harm some people. The validity of your specific examples are variously debatable, but even if you're right, I don't think that's a good enough argument for keeping the laws around. I can't conceive of any legal modification that wouldn't harm someone. In my opinion, even if something might harm startups (and I'm certainly not convinced that IP laws are vital to startups), that's not a sufficient argument.
[+] [-] wybo|15 years ago|reply
It should not be too hard to imagine 'implementing' it in a different way.
Such as through a specific law that required giving users access to the source code (and other freedoms, possibly extending to derivative works) if a certain piece of software were marked as Open Source (or for all software, as Stallman would probably prefer it).
(yes this might make Open Source software a less attractive alternative, as it would be competing against free as in a free lunch, but as the market-landscape would be changed in favor of FOSS production models as well, by this, and FOSS has certain benefits even if produced for a fee (ability to hire competing firms for implementing fixes and modifications), there are good reasons to assume FOSS would still flourish)
It keeps surprising me how otherwise intelligent/educated people don't see this option...
[+] [-] jberryman|15 years ago|reply
Peititio principii. Many argue that even the phrase "intellectual property" is disingenuous; a term invented by the entrenched stakeholders to gain support for the laws they would like passed by creating a false analogy between physical property and knowledge.
[+] [-] nitrogen|15 years ago|reply
[1] I have to admit I am intensely curious what the world would look like if suddenly all IP laws were abolished. I imagine there would be a brief frenzy of copying and exploiting, but eventually a new equilibrium would be achieved and innovation would continue but under some other motivation.
[+] [-] kiba|15 years ago|reply
Nonetheless, I am experimenting to see if it is true. It's only one sample. So far, I am not suffering any ill effects.
[+] [-] MoreMoschops|15 years ago|reply
This is a true story and it's a belief that is on the streets right now; some people believe even mathematics is legally owned by someone and they can't use it. If people won't experiment, they can't innovate.
Note that the countries that don't give a damn about so-called IP happily copy everything they can get their hands on. It will not take them long to start innovating on top of what already exists.
[+] [-] Vivtek|15 years ago|reply
Disney makes a lot of the entertainment for young people in America. They harp a lot on piracy being a crime that gets you arrested immediately, regardless of the truth - I don't watch a lot of Disney, but I can think of two instances right off the top of my head, one being an episode of iCarly, and the other being Minute Men, a made-for-TV movie my kids and I watched last night on Netflix.
[+] [-] patrickaljord|15 years ago|reply
See what I mean? When the law overprotects, it kills innovation. That's what protection means. It means protection from innovation. Let's call a spade a spade."
Amen.
[+] [-] billmcneale|15 years ago|reply
While in need of some tuning, IP laws seem to be working as advertised: you can't release a product that copies 90% of another product, you actually have to innovate.
Look at Android: they had to navigate around dozens of Apple patents and they still did fine and they have come up with an impressive set of innovations.
When plagiarizing is outlawed, you have no choice but innovate.
[+] [-] ZeroGravitas|15 years ago|reply
[+] [-] jamesaguilar|15 years ago|reply
> Let's take Android
An innovation that occurred in America.
> So what happened once it became a hit? Patent and copyright infringement lawsuits up the kazoo.
Which have not been resolved, and even when they are will not cause Android to cease to exist.
> And it's a drain on the economy too, because when the plaintiffs win, that money isn't a win for innovation
The antecedent does not prove the consequent. "Losses" (smaller profits) for innovation are not inherently a drain on the economy.
> That's what protection means. It means protection from innovation.
It means protection from copying. And I don't see any evidence that the US is failing to innovate technologically.
[+] [-] zipdog|15 years ago|reply
The article is spot on: legal protection is protection from innovation.
[+] [-] MoreMoschops|15 years ago|reply
Well worth reading, and comes under a creative commons licence.
http://craphound.com/content/download/
[+] [-] travisp|15 years ago|reply
Source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354849
[+] [-] billmcneale|15 years ago|reply
Uh, you should really read up on America's early economic development. Its success has very little to do with IP laws.
And to counter your claim: look at China, which has no IP laws. How much software innovation do you see coming from there?
Yup, zero.
[+] [-] Natsu|15 years ago|reply
[+] [-] unknown|15 years ago|reply
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[+] [-] bugsy|15 years ago|reply
Patent and copyright are great things to protect the little innovator guy that starts a new business from being sodomized by the big corporations that lobby congress for laws that benefit only themselves.
Reform is necessary. Right now, companies are patenting things that were invented by other people. Right now, little people with patents are getting their IP stolen from big corporations with lawyers who file legal action solely for the purpose of bankrupting the little guy and taking his property.
These things are not a problem with the concept of protecting innovations through IP law. They are a problem with corporate abuse of the system and a corrupt government.
[+] [-] zipdog|15 years ago|reply
[+] [-] marshray|15 years ago|reply
I think you read that in a book somewhere. I bet you don't personally know a single "little innovator guy" who has successfully been protected by a patent.
[+] [-] Kilimanjaro|15 years ago|reply
[+] [-] marshray|15 years ago|reply
More often than not, the other independent inventors didn't feel the idea was worth patenting, didn't have the money to spend building a meaningful patent portfolio, or didn't want to feel like human scum.
[+] [-] fleitz|15 years ago|reply
Continue by allowing the free flow of information and creating transparent gov't so that the private sector may also innovate gov't.
If Obama went back to his election night speech and started governing like that I'm sure he'd find the answers quite quickly. However, a rhetorician as skilled as President Obama knows that the point is not to find the answers but to be seen asking the question.
[+] [-] danenania|15 years ago|reply
[+] [-] tptacek|15 years ago|reply
[+] [-] marshray|15 years ago|reply
It used to be that I could sit down at a computer and innovate-up a useful program and no one could say I couldn't. Maybe even try to make a business out of it. Now it's all-but impossible to do that without incurring this large and unknown risk of litigation from holders of patents of wildly varying degrees of novelty.
The system is broken. It needs to be thrown out.
I doubt Obama is the one to do it, he seems to have his head in the status quo as much as any lawyer.
[+] [-] Alex3917|15 years ago|reply
Do you consider Google Books, JSTOR, Wikipedia, etc. to be entertainment content startups?
[+] [-] nostrademons|15 years ago|reply
I'd rather attack the root cause with a constitutional amendment that states "All legislators must live full-time in their home districts", and have them conduct official government business through email and videoconference. That makes lobbying impractical: a company that wanted to lobby Congress would need to station lobbyists in all 435 congressional districts, and the lobbyists would have no more pull than an ordinary citizen that the representative happened to be friends with. The reason big companies have the sort of clout that they do in American politics is that there are economies of scale to political power, and once you have scale, you can buy more of it.
[+] [-] steveklabnik|15 years ago|reply
With that said, he'll never go for this and neither would the legislature, so... not getting my hopes up.
[+] [-] DanielBMarkham|15 years ago|reply
Problem? The title told me it was going to be a highly-emotional appeal to an audience already primed to agree with it. And the vote score only confirmed that assumption. Time to put on the old critical thinking hat.
What a great article! It was a wonderfully-put-together rant about what is wrong with IP law. I agree with every point -- including the outrage the author felt.
The only thing I didn't agree with? The premise -- that IP laws are blocking innovation.
Yes, as the examples show, there is a great amount of innovation that is being stifled by IP laws, and something is desperately needed to fix it. But let's not get caught up in all that emotional outrage at how screwed up things are. Instead, ask a simple question: to what degree is all innovation stifled by IP laws? Because that's the claim: that every kind of innovation is being stifled by the current crappy state of IP laws.
Clearly that's not the case at all. The newspaper boy who invents a new newspaper folder isn't being stifled. The restaurant owner who comes up with a way to wait more tables with less staff isn't being stifled. The media creator who packages his product in a way to increase stickiness isn't being stifled. It's just a bunch of examples that members of this audience already know and are sympathetic with.
I could go on. And on and on. So yes, in this one area in which we are all pretty damn angry to begin with, IP laws are totally destroying innovation. But in the other thousand or so areas from which most of us have little experience, they are not.
I loved the rant. And I love a great title and this article had one. A little hyperbole is good for the soul. So while I have no faults with the article, I'd just recommend a little bit of common sense when dealing with a premise so over the top. People have a tendency to take whatever they're really angry about -- and then apply it to whatever problems the world is facing. IP law is not stifling all innovation. It isn't even coming close. But it's definitely horribly broken and needs to be fixed.
[+] [-] pgroves|15 years ago|reply
I've been working on a rather ambitious piece of software and I'm definitely worried that I'll get sued into oblivion over some minor user interface feature before I ever really make any money off it. I've lived all my life in the U.S. but would entertain the idea of leaving.
In fact if I'm going to leave my home town I feel like I might as well go someplace more exotic than Silicon Valley or New York. IP laws and other business concerns would definitely be an important criteria if I got serious about it.
[+] [-] marshray|15 years ago|reply
[+] [-] kenjackson|15 years ago|reply
The big worry is if you'd made tons of money off of it or if it is a big part of your program.
And the way patent litigation typically works in the US it will be small companies suing large companies. So you can sue Google or MS for using your great idea. Rarely will they sue you. You generally need to be on their radar for this to happen, which usually means being a threat to one of their businesses.
At this point, moving anywhere over this is crazy premature.
[+] [-] neutronicus|15 years ago|reply
http://levine.sscnet.ucla.edu/general/intellectual/againstne...
[+] [-] ChuckMcM|15 years ago|reply
[+] [-] mryall|15 years ago|reply
The first and simplest part of lobbying is identifying the problem. The much more challenging part is following up with useful recommendations on what should be done to fix it.
In terms of software patents, should the executive branch propose a bill to forbid them? What would the outcome of that be? How should copyright law be reined in? These are the questions that the next generation of policymakers need to solve and the recommendations we need to be sending to our respective governments.
[+] [-] stretchwithme|15 years ago|reply
I think the coercive element, the idea that someone can be sued for doing something they have an inherent right to do is the problem.
It is one thing when people agree that they need something and offer to buy it exclusively from whoever creates the first viable product. It is quite another to coerce everyone to do so.
That said, we should not hand out monopolies that are not in the interest of most citizens. And what is in our interest is determined rather badly with winner-take-all elections and the power they give to lobbyists.
[+] [-] beagle3|15 years ago|reply
e.g.
Every year, a patent/copyright/trademark owner has to state the value of their "property", and pay 1% tax on its value. That entitles them to sue each defendant for said value (maybe 3 for wilful infringement, but that's it). You can make it easier by declaring the value of the "property" at any point in time during the year until 15-apr the following* year, so you can evaluate in retrospect.
Now, all of a sudden, it doesn't make sense to hoard patents or copyrights as much - If you value each song at $100K, then it costs $1K/year to maintain that copyright.
I'm sure Intel/Microsoft/Apple would actually evaluate what does and doesn't need patent protection when they have to pay millions of dollars per year to maintain it.
Furthermore, it's only reasonable - paying tax for having the state enforce your "property" rights.
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