What's the Solution To Intellectual Property?

StealthyRoid writes "I'm an anarcho-capitalist, and a huge supporter of property rights, both physical and intellectual. At the same time, I find the current trend of increasing penalties for minor violations, criminalizing civil IP matters, anti-consumer technologies like DRM, and abuse of the legal system by the *AA's of the world really disturbing. You'd think that by now, there'd be a reasonable solution to the problem of protecting intellectual property while at the same time maintaining the rights of consumers and protecting individuals from absurd litigation, but I have yet to find one. So, I pose these questions to the Slashdot community: 1 — Do you acknowledge the legitimacy of intellectual property to begin with? That is, do you believe that intellectual property is a valid construct equivalent to physical property, or do you think it's illusory? If not, why? 2 — If so, how would you go about protecting the rights of intellectual property holders in a way that doesn't require unfair usage limitations or resort to predatory abuse of the tort system?"

Time Limits

Easy time limits to stop patent camping. For example if you apply for a patent and get you have 12 months to produce a "product" based on the IP otherwise it goes into public domain. Or another one, patents not licensed (to make a product) or used for 3 years automatically go into public domain.

Re:Time Limits

1) Company A gets the patent, licenses it to shell company B.
2) Company B does nothing with the patent license, but since A has licensed it to *someone* - it wont automatically go into public domain
3) Profit!

Re:Time Limits

Exactly! And further, even if a patent is actively making money, it should still expire in 10 years tops. Theres no reason in todays economy that a patent should last more than a decade. Ditto copyright. Life of creator is just rubbish.

Re:Time Limits

I noticed that this was tagged "usa" and it quotes the **AAs.
I'd like to point out to anyone, that this is not a US-only problem, it's a problem for the entire developed world (and affects the rest).

If a new system is to be functional, it has to do two things.

1. Ensure that the creator is compensated for his time, and the uncertainty inherent to creating a new products and works of art.
2. Ensure that the public gets to enjoy this product once the creator has been compensated.

Intellectual property is a concept aimed at balancing the need to boost creativity to the benefit of the public.

Both patronage and intellectual property ensures 1. But intellectual property is starting to fail at 2 in more than one way.
The amount of "compensation" for the creative work, is in many industries currently pushed way beyond reasonable and DRM is an attempt to ensure that 2 will never take place.

One of the interesting aspects, is that most of the music we see today, is still a combination of patronage and intellectual property.
The recording & distribution companies, pay the artist to create works, but now patronage means that the artist loses his or hers rights to the music. I don't think this was the idea envisioned in Intellectual Property.

so what's better?
How on earth would i know, I haven't studied it intensively, and neither has most!

7 years long enough

If we assume that technology and communications is improving, and the pace of progress is increasing then logically the duration of monopoly should get shorter and shorter rather than longer.

Nowadays if a movie is good it makes a profit within a few weeks of its release. If it's not good, stop making bad movies then.

It is ridiculous that there should be a monopoly for > 100 years.

Think about it, if copyright only lasted 7 years, do you think Microsoft would dare release something as crap as Vista? They'd have to make something significantly better than Windows 2000.

If Microsoft won't want to play by those rules, I'm sure Apple or some others will be happy to take over.

As for patents and people talking about drugs needing long patent terms, the AFAIK drug companies spend more money on marketing (aka bribing doctors with goodies and holidays) than R&D, and FDA approval.

The goal should be innovation

The goal should be to encourage innovation and creativity. Copyrights nowadays just last too long. This encourages hoarding because you can make tons of money by collecting essentially endless copyrights. It encourages lawsuits because the value is in the ownership and money earned over time, not improving the product and giving something people want to buy right now. It discourages derivative works because building off the original costs so much, which, for instance, seriously harms hip hop music. It also discourages new works from going commercial since you can sell a proven product much more easily than creating a new one and teaching the public about it. An individual creator deserves to make money off their work because it gives them an incentive to make more and improve our lives. The current system does the opposite so the social contract is broken. Until balance is restored, I have no problem disregarding pretty much all claims of copyright, short of selling someone's product myself. Then there's patent law...

Standard answer

That is, do you believe that intellectual property is a valid construct equivalent to physical property, or do you think it's illusory?

No. As in "neither side of the alternative is true". Copyrights and patents are valid constructs, but are not and should not be equivalent to physical property. I find them tolerable as long as it's a temporary monopoly designed as an incentive to contribute to the public knowledge space . That is why I object to calling it property.

IP = Information

Intellectual Property = information.

If you want to control intellectual property, you need to be able to control the information exchanged between people. That is a very difficult thing to do, and may give you a totalitarian society as a side effect.

no scarcity

property and intellectual property are not similar.

property rights are important b/c of the problem of scarcity; if there were enough of everything, there wouldn't be fights over who owns what.

with intellectual property, there is no scarcity of the idea or musical recording or what not; it's free (or close to it) to copy.

IP (or some of it) can be arguably justified on purely utilitarian grounds to incentivize creativity, and certain rights are granted that are similar to property rights, hence the use of the word property, but the analogy is taken too far when people think of IP as actual "property"

Re:no scarcity

I think that is a good answer to question 1.

For question 2, there are copyrights and patents to consider.

Copyright:
Eric Flint (who is an author himself) makes a pretty good case for 40 years' copyright on literary works, possibly with the addition that copyright does not run out during the lifetime of the author:
http://baens-universe.com/articles/salvos3 [baens-universe.com]
I think this argument can be extended to movies and music.

Patents:
I think those already do more harm than good. While patents help the inventor, they also can be used against anyone who made the invention independently and just was a bit slower to file for the patent. Which is compounded by patent offices handing out patents for far too vague ideas with too little explanation. That breaks the basic covenant that the inventor gives away his secret and gets a temporary monopoly in exchange.

Also, if you look at the history of important inventions, many of those pop up in different places at nearly the same time, not always patented. I take this as evidence that inventions happen when the time is "right" (the supporting technologies are there) and patents as incentive are not needed.

Overall, I think the patent system is counterproductive in most cases and needs to be abolished. With the possible exception of pharmaceuticals. In that field, the clinical studies take long enough that competitors might copy the drugs before they get on the market, so the original developer pays for the research without having a benefit.

No

1. No

Ben Franklin gave his inventions to the world, why can we not do the same? All IP is based on MINE MINE MINE and preventing people from building on your work as long as possible, under the self-interested characterization of other people as THIEVES until proven otherwise. All IP is based on rationalizations of this very selfish behavior.

We've had enough of compromise, all that has given us is unending nibbled-to-death-by-ducks as the lawyers extend and extend and extend the reach of copyright and IP and patents. Soon your great-great-grandchildren will be living off your IP which was never the intent. It always starts as "reasonable" laws passed to encourage innovation and then pass things into public domain as soon as possible.

Do people now feel OBLIGATED to send money to the heirs of the Shakespeare estate every time they quote the Bard? Do you send money to the heirs of Volta every time you use a battery? No? If you don't then you are a sanctimonious hypocrite.

Intellectual property compromises physical

Whenever a dispute arises regarding intellectual property, it is usually, though not always, rooted in physical property. For instance, disks, books, or other material holding that property. The laws surrounding intellectual property limit use of your own physical property. For instance, you can purchase a hard disk with the bits set randomly, but once you re-arrange the magnetic charges in a specific fashion, you are infringing upon someone else's rights. This goes to show that intellectual property is indeed an illusion. Shouldn't you be able to do what ever you'd like with that chunk of metal in your room?

You can also look at ideas akin to something like fire. You take a candle and light another candle, and nothing was taking from the first candle. Ideas are the same - they are not a limited resource and thus should not be analogized to physical property.

I live in China right now, and the concept of intellectual property is relatively new here. It's a more natural part of Chinese culture to take ideas from each other. Instead of innovating into uncharted territory, Chinese innovate in place, creating immense depth within a single discipline, for instance martial arts, tea drinking, and calligraphy. This is because there are no intellectual property laws retarding development of these disciplines, and people have been copying and improving upon each others' techniques for thousands of years, spreading across a huge nation.

Chinese culture's reputation for the mysterious and secretive also comes out of this. With no protection of intellectual property laws, valuable ideas are kept secret through guilds and lineages.

Anyway just a few thoughts.

LS

Re:Intellectual property compromises physical

For instance, you can purchase a hard disk with the bits set randomly, but once you re-arrange the magnetic charges in a specific fashion, you are infringing upon someone else's rights. This goes to show that intellectual property is indeed an illusion. Shouldn't you be able to do what ever you'd like with that chunk of metal in your room?

These sorts of hyper-reductionist arguments are stupid. At the end of the day a human is just a bunch of atoms. Shouldn't I be able to disrupt those atoms the same way I can disrupt the atoms in my own house if I want? And before you start on who "owns" atoms, "ownership" is just an arrangement of neuronal connections in people heads. ENOUGH!

If we accept that we're talking about things at a human level, not at an absurd reductionist level, then both ownership and copyright are meaningful terms about which we are able to have a discussion, and neither is an "illusion" as you state.

Rich.

We HAD a solution...

The system worked fine before it was repeatedly "fixed" in recent years. Increasing copyright periods to ridiculous lengths, DMCA, allowing software patents, etc.

Our system worked FINE. The Internet actually brought no new cards to the table except speed. I could go on about that one for a long time, and bring up copy protection in the context of player pianos (which court cases also involved patentability of "software"). But that would take up a lot of time and space.

In a nutshell: If it ain't broke, don't fix it. It wasn't broke. But they did it anyway, since the mid-90s, all in the name of corporate protectionism and profit. And in the process, they broke it pretty badly.

The solution is simple: put the laws back the way they were, when they actually WORKED and we had, arguably, the best-working set of "IP" laws in the world.

That was sorta what I was wondering

That was sorta what I was already wondering.

In the west we already had a concept of, basically: you bought _a_ book, you didn't buy the rights to the novel. You bought _a_ record, you didn't buy the rights to that band's album. You bought _a_ (copy of the) newspaper, you didn't buy _the_ newspaper. Etc. It worked. Most people could already wrap their mind around that.

We had a first sale doctrine that worked perfectly well with that too. Yes, you didn't buy the rights to the novel, for example, but you bought a book and you can do almost whatever you want with it. Resell it, lend it to your friend, read it to your kid at bedtime, etc.

Then came for example software and tried to handwave in the fallacy that they need completely other constructs, for something that was already solved for everything else. See, you need to _license_ software, because, OMG, otherwise you'd think you bought the rights to that program as a whole! WTH? We already had the distinction between buying a book, and buying the ownership of a novel itself. You didn't need to "license" a book, or a vinyl record, or a newspaper.

Even after the loophole of, basically, "yeah, but you need to copy the program to memory, which is making a copy, and you need a license to make copies" was closed, we got stuck with the same stupidity as a before. Nah, see, it's _licensed_, not sold, 'cause if we sold it you might think you bought the rights to Vista as a whole!

Exactly wth is the fundamental difference between buying a copy of, say, Vista, and buying a copy of Huckleberry Finn? I'll go on a limb and say that people would have had no trouble using the pre-existing concept for software too.

And then based on the license stupidity, we had increasingly stupid stuff snuck in as licensing terms, that no consumer rights law would have allowed otherwise. E.g., you can't resell it. (See the recent AutoCAD lawsuit, but also all the software where you have to use up a serial number to use it, etc.) You can resell your old book, your old vinyl records, even your old copy of The New York times if you find someone interested in that particular issue, but you can't resell your old copy of AutoCAD. 'Cause it's licensed not sold. Some presume to unilaterally decide what else you can run on that computer. (E.g., it's quite common for game copy-protections to just quit or do this and that to you, if they think you have a CD emulator running on that computer.) Or what they can do to your computer. Or what you can use it for. Etc. Everything that consumer protection laws gave you for books, records, etc, the license took away for software.

And now unsurprisingly we see the guys from the other media, essentially go, "wait, wait, you mean we wouldn't have had to give customers all those rights, if we called it a license too? Damn, we want some of that too!" All the aberrations and stupidities built on that fallacy for software, we're now seeing trickling back to, say, movies and music. They too want a DRM scheme to prevent you from reselling it. They too want to unilaterally require your DVD player to phone home and spy on you, 'cause, hey, if software can do that, they want it too. They too want a say in what you can use the DVD for, and in which devices. (See copy protected CDs which actually play a reduced bit rate MP3 instead of the uncompressed music, if you play them on a computer.) Etc.

Heck, even Sony's infamous copy protection rootkit was, essentially, just trying to get the same control over that music as they have over software. In a misguided and flawed way, to be sure, but they didn't do anything much more underhanded than their copy protection already does for games.

And methinks it's about high time to say a collective, "WTF?" Or rather, a, "No, you don't. You software guys learn to live with what already worked for everything else, instead of everyone else copying your invented loopholes. Yes, you sold a copy, not the rights to the program. We know that. That already applied to everyone who bought a copy o

Let's break it down...

Do you acknowledge the legitimacy of intellectual property to begin with?

Sometimes.

The concept has its merits, but RMS makes a good point here. Using the term "Intellectual Property" distracts from what we're really talking about: Trademarks, Copyrights, and Patents.

And, within that, it's possible to break things down even more. Math should never be patentable. English prose should pretty much always be copyrightable. And so on.

That is, do you believe that intellectual property is a valid construct equivalent to physical property, or do you think it's illusory?

Oh, it absolutely is illusory. Big fat "duh" on that point. What you're asking is whether or not we should behave as though it's equivalent to physical property.

I do believe IP -- especially copyright -- is a valuable concept. It's not equivalent to physical property. Specifically, copying something to which you do not have the right is not equivalent to physical theft -- and, more importantly, the only way to "steal" intellectual property would be to obtain legal copyright for something you shouldn't have.

And I believe we're far too early in the game to even know what the ethics around this should be.

If so, how would you go about protecting the rights of intellectual property holders in a way that doesn't require unfair usage limitations or resort to predatory abuse of the tort system?

That's a bit over my head, but if your concern is things like DRM, that's absurdly easy to deal with: Just don't. It is entirely possible to make money without DRM.

In more depth: What I would do is remove DRM from the game, drop the minimum damages (whatever that's called?) for lawsuits, and try to educate the courts a bit on technology, so that real proof is actually required.

And then, I would let the content creators figure it out for themselves.

As a content creator, I would stop seeing piracy as anything other than a competitor, and start looking at what I can do to compete. For successful examples, look at real-world systems which don't have a serious piracy problem, and also don't employ any of the tactics we despise (DRM, etc). Big, obvious examples: Radio, World of Warcraft, most books, and some indie music sites.

Everyone needs to read Boldrin & Levine

To save you 300 pages of reading "Against Intellectual Monopoly," basically patents don't spur innovation, not even the ones on concrete inventions. Case after case is presented where it is clear that the idea of spurring innovation through patents is flawed at best, and highly damaging at worst. They basically prove that steam engine development was slowed down by patents and only really began to chug when the patents expired. Inventors you thought were heroes finally come across in a more realistic light. They present lots of examples like this and you just basically see the light (at the end of the tunnel?). Now, if your goal was to slow down technological progress or science itself, then maybe patents would be a good idea.

Before reading some chapters from Boldrin & Levine I was somewhat convinced that copyright at least had some beneficial elements to it that should be respected and preserved, but they sure put the nail in that coffin too. They went through the origins of copyright as a *relaxation* to a censorship regime by the crown (IIRC), and it just went downhill from there. Now it just seems like copyright is extended to every damn little thing, and that wasn't the original purpose of it by far. While they don't prove that removing copyright would be beneficial to everyone, they take a shot at showing that it wouldn't be a total disaster to authors/artists. For everyone else, it wouldn't prevent new books from being written, new music from being produced, etc., and it would be a net gainer, by far.

If you have the time to read a 300 page book this summer, by all means at least read a few chapters of Boldrin & Levine. You will understand intellectual property much better and hopefully lose a few sacred cows in the process.

You can select what you may want to read from this landing page:
http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm [ucla.edu]

Back to the constitution.

The purpose of patents is to get inventors to disclose their inventions in exchange for a temporary monopoly. It's a deal between the inventor and everybody else: tell us how you did it, and we won't compete with you for a set amount of time. The alternative is that the inventor attempts to keep it a secret, and the idea dies with him.

-jcr

False dichotomy!

Do you acknowledge the legitimacy of intellectual property to begin with? That is, do you believe that intellectual property is a valid construct equivalent to physical property, or do you think it's illusory?

Your premise that intellectual property has to be either equivalent to physical property or illusory is mistaken. It's entirely possible, perhaps even likely, that intellectual property is a valid construct but NOT equivalent to physical property.

In fact, by its very nature it would have to not be equivalent. For example, if I infringe your intellectual property, I haven't deprived you of the use of it, as would be the case if I stole your physical property. Since the natural consequences of infringement are different, it follows that the rights should not be completely equivalent. However, that's not at all the same as saying that there shouldn't be any intellectual property rights.

artificial scarcity and capitalism

artificial scarcity: so called "intellectual property" introduces an artificial scarcity into something that could be useful to all of us without extra costs: information and knowledge. so only kind of "intellectual property" reduces the usefulness of this goods. (this is something that patents, copyright, etc.. have all in common).

so why then do we have IP at all? because capitalism can only deal with scarcity: you can not sell sand in the desert. this shows a principal problem with capitalism. and if you look a bit closer then you see that this does not only happen with intellectual goods but with almost everything that capitalism deals with: it introduces artificial scarcity:

• advertisement: to create new demand for mostly useless things where there was no demand before.
• war: the most effective way to create new demand: destroy what was there before, create insecurity and create weapons that "protect", ...
• crisis: like the bursting housing bubble...
• ....

my employer pays me to filter out spam for him. other people are being payed by there employer to send out spam. etc..etc..

the capitalist system is fundamentally broken. every year 10 million people are starving even though there would be enough food to feed them all... capitalism just does not cater to those with no money...

our so called "democracy" is becomming more of a farce every day: voters being manipulated by $$$-media... those with enough corporations behind them have more money for their election campaign... this all leeds to the fact that you can only rule if you represent the profit-interests of the big corporations...

greetings mond.

Legal hang-ups

Many Slashdotters are adamant in their assertion that intellectual property is not a valid right or concept. They often cite legal history, and technicly they are correct. However, it seems they are doing this more for rhetorical purposes, as opposed to actually caring about how the law is constructed. The argument usually goes something like, "IP theft isn't stealing, it's copyright infringement". I always like to counter this with something like, "would you rather I steal $50,000 from you or embezzle it?". It is readily apparent that the effect is the same.

Therefore, I personally DO recognize IP as a valid concept and right. If I'm the first cave-man to discover fire after rubbing sticks together for months, and you light your fire from mine without rewarding me, you do indeed take something from me. The fire-maker deservers to be fed from the next kill, lest the wheel-maker observes that the fire-maker starved, and decides to give up on his endeavor.

OTOH, when the fire-maker stomps out fires and demands a portion of the meat in perpetuity, he shouldn't be surprised when he gets clubbed on the head.

In other words--common sense.

Therefore, software patents -- get rid of 'em. They dont't incentivise. They just make software developers worry. Everybody knows it.

*AA enforcement? None on low-quality encodings that get radio airplay. Why? because you can already time-shift broadcast radio. Pulling it off digitally is really just the same thing, format-shifted. Same deal for music vids, which you could have legitimately recorded off MTV 25 years ago with your VHS (in fact, WB and some other studios are putting up their own YouTube channels with classic MTV vids, perhaps they finally are realizing it's actually good for their PR and not taking away from new sales). High-quality encodings and/or lossless recording should be more restricted. The penalty should be ordinary restitution: steal 100 CDs worth of music, pay 200 CD equivalent penalty. None of this $30,000 business for downloading one song.

IP in the music/vid business can be a *good* thing. Bits don't go to landfill. Availability of high-quality recordings in a manner that ensures payment will help that.

Abandoned works should lapse into the public domain, but registration shouldn't be required for copyright on each work. I could go on and on...

The short answer though, is common sense. Isn't it always? Unfortunately, it always seems to be in short supply. The laws are written by lawyers who are paid by businesses. Hence, all the legal hang-ups.

Ideas are not equivalent to property

Ideas are not equivalent to tangible property because (among other reasons):

1) There is no natural scarcity of ideas. Taking a thing deprives the person it is taken from of its use. If two people share an idea, both have it and neither the less. The two outcomes are diametrically opposed, ideas are the opposite of property. They are not subject to property. Dissemination of ideas increases the sum of knowledge, whether for profit or not. The purpose of patent and copyright law is to maximize the creation and dissemination of knowledge.

2) To pretend that an idea can be owned as property suggests that one owns and has the right to exercise control over another's thoughts. This is absurd and unmanageable.

3) If an idea is property, there is no basis to suggest that ownership of an idea shouldn't be permanent and heritable as other property is. This would be an economic and social disaster.

etc.

The constitution provides a simple justification for granting a monopoly to an inventor on the use of their idea: "to promote the progress of science and the useful arts." This is a noble goal, one I think generally embraced be even the opponents of the current copyright regime. This suggests a simple and obvious test for laws meant to regulate the temporary monopolies: if a given law can be proven to promote the progress of science and the useful arts, we are fairly subject to the limitations thereof so long as we (We) agree with the goal of promoting the progress of science and the useful arts. If a law regulating the free use and exchange of ideas cannot be proven to promote the progress of science and the useful arts it is wrong and unconstitutional.

Re:Not much of anarcho in your capitalsm, is there

I'd have put it a bit more nicely. Something like "parse error" would have done better.

An anarcho-capitalist who believes in IP is like a libertarian who advocates for a monarchy.

Re:no more artificial scarcity

See, this response is flawed. Monsanto does own their seeds because they invested a lot of time and money in the traits of those seeds. Nothing is being stolen from the farmers...they can use the same old seeds they have been using for thousands of years. You, person who thinks scarcity is artificial, have never lived in a world in which you must fight for your food or you must kill in order to stay alive. Business must make profit in order to enrich your life. DO not expect freedom of existence without a fight for it...you must earn it.

Now at the same time, Monsanto does not get to fly those seeds over random farms and drop them and then sue those farmers, thats bad business, so don't think I love this company, but dammit you fools, don't think some scientist in a lab didn't work their ass off to create this amazing thing. And dammit, they better make some money, otherwise all that scientist can do for a living is steal shit from you...course you live in a world in which there is no scarcity, so no one would ever steal from you.

Re: Artificial scarcity

the entire paradigm of money for ideas (..) all IP is this way

Not really... once you understand what exactly the 'property' in IP is, it makes perfect sense.

The keyword is 'exclusive', meaning only 1 person can use it at a time. If I use a car to drive from A to B, you cannot use it at the same time to drive from C to D. All physical property works that way, somehow.

Now for IP, many people think it's the patented/copyright work that is the 'property' in IP. It isn't - you can copy things anyway, so they're not really scarce. It is the right to determine who is allowed to make copies and when, that is regarded as 'property'. And this is exclusive. Only 1 person or organisation can hold the copyright on a work at any given time. This right is the (artificially) scarce item that is used/inherited/sold and so on. Once you understand this, IP makes perfect sense from a conceptual point of view. I don't like this concept, but it's perfectly in line with how people deal with physical property.

Where IP doesn't make sense, is from a practical point of view. Copyright may have served a purpose 1 or 2 hundred years ago, but times have changed. I have yet to see a convincing proof that the world as a whole has benefited from past IP laws. That technological/cultural progress would have been slower without it. In todays fast-moving society, it serves even less purpose. Countless patents fall in the 'obvious' or 'bound to happen sooner or later' category. Without IP laws, these things would have been thrown onto the world for everyone to use for free. Nor are there any objective standards used to determine IP protections. Protection periods aren't calculated or estimated for optimal effect, but lobbied by greedy corporations for maximum profit. As a result, society as a whole loses.

And then there's implementation. Take for example DRM: you hand a million customers identical 'black boxes' with identical locks, with identical content inside, then you give those customers identical keys, and you tell them: "now go open your box, but don't share what you find inside". Aliens would laugh at how silly this is. Or a company invests millions into development of a new drug, then brings it to the market, but not everyone profits because the poorest can't afford the high price. All the hard work has been done, the company wouldn't profit less if there where a group of 'freeriders' who can afford production costs but not market price, but still: millions are suffering because corporate greed is deemed more important than curing sick people.

If it where up to me, IP laws would be scrapped from the books, so that companies can have succes by innovating faster or smarter than the competition, as opposed to having a bigger pack of lawyers. In the mean while, I just try to ignore IP law as much as I can get away with (like so many people, whether they admit it or not).