Thoughts on Copyright and Patents

I write software for a living which means people basically people pay me for my ideas. I'm all in favor of compensating people for their work, but I think current laws protecting big corporations rather than providing benefits to the the general public.

Copyrights and patents were intended to encourage people to create and invent when they otherwise might not. But eventually those creations are supposed to become available to the public. Lately, the view seems to be that copyrights and patents exist for the inventor, when in fact they exist for the public. The basis of copyright and patent law comes from section 8 of the US Constitution:

The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

The term "intellectual property" has arisen in the modern world. However it's a mistake to think that ideas can be treated as property in the same way that physical things are property.
I'd like to see some balance come back into copyright and patent system.


In case you haven't heard, copyright has recently been extended another twenty years retroactively. This means that a work created in the 1930's that should have come into the public domain in the first decade of the 2000's will not become available for another twenty year. Exactly how a retroactive change "promotes the useful arts" is unclear.
Furthermore, this extension is another in a series of extension that began in 1962. Although copyright is still for a limited term legally, practically speaking it's always been extended just in time to keep new works from coming into the public domain.. Lawrence Lessig has argued that the net effect of these changes to copyright law mean nothing less than "perpetual copyright on the installment plan".
The Disney company has pushed the hardest for extensions to copyright law. Would you be surprised to find out that the first Micky Mouse cartoons would have entered the public domain in 2003 had copyright laws not been extended retroactively? Would you be surprised to hear that Disney owns the copyright for Winnie-the-Pooh, which would also have come into the public domain in the first decade of 2000?
Don't get me wrong, I've got nothing against Disney making money off of it's creative works. In fact, Disney will own copyright on new Mickey Mouse cartoons because the copyright term starts at the creation of the work. But how does a retroactive extension on copyright serve the public good? This change to copyright will not encourage Mr. Walt Disney (the creator of Mickey Mouse) to create more works — Mr. Disney has been dead for a few decades. Nor will it encourage A. A. Milne (the creatpr of Winnnie-the-Pooh) to create more works — he is dead, too.
For more information on the effects of "perpetual copyright on the installment plan", see this Arizona State University web page.


Halo1 made some comparisons between physical and software patents in a post on Slashdot:

The claims [of a patent] are not what the invention is, but indeed what the "inventor" wants a monopoly on in return for the publication of the description of how his "invention" works. As such, claims are always broader than the invention itself (the reasoning is that otherwise, someone can get around the inventor's patent by just changing one small detail of the invention).

With non-software patents (i.e., where the invention/innovation lies in a novel way of using physical forces/material), how far exactly you are allowed to abstract is mainly limited by three things:

  1. You can't abstract the claims until only the forces of nature you are harnessing remain, because those are not patentable;
  2. You can't abstract the forces of nature you harness out and remain with some generic algorithm/method that could apply to anything, because then your invention (novel way to use those forces) is no longer part of the claims;
  3. You're of course also limited by prior art (you invent a new car, but other cars already exist -> you can't claim all 4-wheeled vehicles etc) and whatever the patent office deems too general (after all, society grants you a monopoly in return for disclosure of an invention, so those two should -in theory- be proportionate).

However, if you look at software patents, then

  1. There are no unpatentable basic "forces of information";
  2. Since what you start with is already some abstract method/algorithm, no matter how much you abstract it further, you can always argue that your invention is still embodied in those claims;
  3. This one is the only thing left.

The net result is indeed that you end up with ridiculously broad claims in pretty much all cases with software patents, even if the innovation itself was not as stupid as in this case [which led to this posting]. An example is the base patent on MP3 compression, whose claims cover all iterative music compression schemes in which an entropic encoder (such as Huffman encoding) is used in the loop and whereby the loop stops when you've reached the desired bit rate.


In Against Intellectual property, Danny Yee takes on the usual arguments for Intellectual Property and shows that they "do not hold up under scrutiny".


In Software Patents Tangle the Web, Seth Shulman makes some interesting points.

Put simply, the business method patents now being granted for e-commerce seem more akin to patents on the idea of toasting bread. The problem [with these patents], critics say, is that the system is supposed to provide incentives to invent new toaster designs. But if someone owns the idea of making toast — or even the idea of making toast with electricity — the claim will clearly deter the emergence of new and varied toaster designs. Instead it will function like a needless tollbooth assessing royalty fees on everyone in an industry, or worse, like a roadblock that deters would-be competitors.

The U.S. Supreme Court ruled wisely on the matter [of the patent system] in a verdict issued more than 100 years ago. In the case, the court wrestled with the question of when a minor improvement — in this instance to a boat propeller — rose to the level of a bona fide new invention. The decision resonates with uncanny prescience throughout the current debate:

It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith.
–U.S. Supreme Court, Atlantic Works vs. Brady, 1882


Articles by Richard Stallman (I'm not quite as radical as Richard Stallman, but he has some interesting points…)

Selling Wine Without Bottles addresses how the world economy could work without copyright laws.

Reevaluating Copyright: The Public must prevail

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