Summations Only

100% agreement. As I said on Facebook, the essential argument against SOPA/PIPA is that we need a free Internet more than we need copy protection for "Chipwrecked."I'm genuinely pissed that the impetus behind these efforts to restrain speech isn't politics or ideology, it's entertainment. For some reason, we place Hollywood's money ahead of speech in a way we never would for the "security of the state" or the feelings of the religious.But it seems like our voices were heard. As many as 25 Senators reversed their positions on PIPA Wednesday. People were literally shitting themselves because they couldn't access Wikipedia (and then shat themselves again because they realized they couldn't look up what to do when you shit yourself.) It was like an entire nation woke up after having one of those strokes that makes you forget the names of your kids and what street you live on.

Uh, no, KFC's not-so-secret recipe is a trade secret, not a copyrightable IP.There's no such legal thing as "intellectual property", and the Constitution specifically states that copyrights and patents are meant to be limited - not to defend "intellectual property", but to give content creators and patent-holders a time-limited monopoly to recoup the costs of investment and development in their ideas.The time limit is what disproves the entire existence of "intellectual property." What other kind of "property" exists that, after a certain time limit, belongs to the public? When you create an idea, it doesn't belong to you. That's what the Constitution says. When you create an idea it belongs to everybody, and then you are granted by the public a time-limited monopoly from which to profit from it.The notion of property, where you create something and you're able to control its disposition forever until you sell it, is one that is popular with a small number of people who have inherited the rights to profitable works, but it's not the legal reality in the US or in any other country. There's no such thing as "intellectual property" because you cannot own an idea. How on Earth could you?

I'm going to disagree with you just a little bit; I think we do benefit as a society when the people who invest in the development of new technologies are granted a limited-time monopoly from which to profit from it. The purpose of copyright and patents, as specified in the US Constitution, is to foster development in the arts and sciences.That said, ideas that require little to no expensive capital to develop - software, for instance, or business plans - shouldn't be subject to either patent or copyright. There's no justification for Amazon to be able to have patented "clicking on one button to order something on the Internet." That doesn't foster either art or science; it simply distorts the marketplace and sets up barriers to competition.The continual extension of copyright law (for instance, the Sonny Bono Act) is an absurdity, not least of which is the Supreme Court's justification for allowing it - an infinite number of finite extensions of copyright protection, supposedly, wouldn't violate Congress's requirement to only allow limited-time copyright.

Well, right, but the only way that limited-time exclusivity does promote the arts and sciences is by allowing you to capitalize on the investment of your time and money and effort to create your innovations by exercising monopoly power. So it's implicit. Except some patents are so broad they encompass any solution to the problem. I'm aware that's a misuse of patents under the law, but the Patent Office is so deluged by applications that their process is to approve all patents and simply allow patent courts to adjudicate which ones are invalid. And that simply results in a system of extortion by patent trolling. We need free access to our own culture more than we need shitty movies like Lethal Weapon 18. And the truth is that it's not even clear that Hollywood has suffered at all at the hands of pirates. I can still get a copy of any movie I want, DVD-released or still in theaters, and with the advantage that I can play it on anything, not just the devices that the MPAA was aware of at the time of release and has bothered to license the DRM to. (As XKCD says, when you pirate music, you own it for life.) But there's no indication that Hollywood has lost any money to pirates (as opposed to the downturned economy and competition from other leisure activities.) Sure, but if Louie steals a bottle of Zyrtek from Wal-Mart, Wal-Mart has one less bottle of Zyrtek to sell. They've suffered the monetary loss of a bottle of Zyrtek. But if Louie downloads music, the only "loss" that the RIAA suffers is the possible loss of one sale to Louie. They still have as many copies of the song as they did before, i.e. an infinite number. But if Louie was not actually ever going to buy the music in the first place, then they've lost nothing. And if he was going to buy it, if the album was actually worth the ten dollar price, he would have paid them ten dollars.The doctrine of "potential sales" really is a novel argument for damages, the description of this activity as "stealing" or "piracy" are provocative attempts to exaggerate the actual damages - much as Jack Valenti's description in the 80's of home taping as being as bad as raping and murdering women was an attempt to exaggerate - not accurate descriptions of the crime. Stealing is when I deprive you of some of your property, but simply making an unauthorized-by-you copy of one of your works deprives you of nothing. You have just as many copies as you did, before.We don't subject libraries to the criticism that they deprive authors of sales, despite the fact that that's exactly what they do according to the logic of the RIAA and the MPAA. And the reason that we don't is that we recognize that access to our own culture is more important than money for content rights holders. We recognize that, to the extent that libraries provide access to culture and knowledge to those who don't have the money to afford it, they're not actually "stealing" anybody's potential sales because there was never a sale there to make. Authors know that the library presents them with the benefits of notoriety and exposure, which itself drives book sales, and that people who are really fans of their work feel like they have an obligation to patronize the authors and artists that they enjoy.Certainly authors and artists deserve to be paid. But the idea that they deserve payment from each and every person who accesses their work is an absurdity. The construction of intellectual property is nothing but a legal fiction meant to turn the terms of the debate from what the public gives to artists and authors, and to what artists and authors should be allowed to extract from the public.

In the United States, my understanding is that you can patent a business plan, idea, or model; and it is under this rubric that Amazon patented "One-Click Buying", for instance. But, you're the lawyer, you tell me.

In a world without SOPA or the DMCA they're free to do so. They don't even need DRM to do it - Louis CK recently made about four million dollars releasing a comedy video on his website - no DRM, no nothing. If you wanted to copy it for free he made no effort to stop you. As it turned out, he didn't need to - enough people were fans of Louis CK that they didn't need to be legally forced with the government's gun to their heads to open their wallets and patronize him. That's clearly not the case, since an enormous number of content producers are producing popular content and getting paid for it, without resorting to draconian technical and legal efforts to restrict other people's access to their ideas, even in the face of effectively-unfettered "piracy" on the Internet and in China.There's no "problem" of piracy. Copying is and always has been a boon to content providers. We're in the amazing situation of having our rights - as Americans, in my case, and as Englishpersons, in yours - stripped away as the solution to a problem that doesn't exist.

And moreover if people have a right to eat, the government should feed them; if there's really a problem where content creators are being driven into poverty, then we should be ameliorating poverty, not rolling back our access to our own culture.A society where content creators don't have to make money or die as a result of malnutrition or disease is a society that has more content creators, not fewer. Why do you think so many Metal bands come from Sweden and Norway? For one thing, they have to do something with all those umlauts, but it's also because quitting your job to start a band is something that isn't an incredibly risky thing to do in a country where your health care is guaranteed by the government.Edited by crashfrog, : "Fewer", not "less." Sorry, Strunk and White!

That's either false or so broad as to be meaningless. One of the first US business patents was "running a lottery." If there's a "technological effect" in selling entries into a random drawing to win a portion of the fees, with a big piece kept for the business, than nearly anything can come in under that heading.Here's the abstract for Amazon's "One-Click" patent:

quote:

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A method and system for placing an order to purchase an item via the Internet. The order is placed by a purchaser at a client system and received by a server system. The server system receives purchaser information including identification of the purchaser, payment information, and shipment information from the client system. The server system then assigns a client identifier to the client system and associates the assigned client identifier with the received purchaser information. The server system sends to the client system the assigned client identifier and an HTML document identifying the item and including an order button. The client system receives and stores the assigned client identifier and receives and displays the HTML document. In response to the selection of the order button, the client system sends to the server system a request to purchase the identified item. The server system receives the request and combines the purchaser information associated with the client identifier of the client system to generate an order to purchase the item in accordance with the billing and shipment information whereby the purchaser effects the ordering of the product by selection of the order button.

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I don't see the "technological effect." But you're the lawyer, maybe you can explain it to me. The parts about "the client system receives an HTML document" is surely ridiculous, given that any web-based system would have to operate this way. According to Amazon's patent there's no possible way to have a "One-click purchase" button on an e-commerce site that doesn't infringe.

Come on. That's stupid. The notion that the Framers conceived of copyright as a way of setting up innovation-stimulating obstacles so that people would be challenged by having to find workarounds to legal impediments is risible. Is that what they're teaching in law school these days? Then sorry, but you don't have the expertise that you claim to: [quote]We might expect that anyone considering applying for a patent would be fairly certain of the merits of their case for one. And yet, of the patents granted by the U.S. Patent and Trademark Office (PTO) that are subsequently litigated, 40% are declared invalid in court... [S]eeking even dubious patents is a gamble worth taking. The PTO receives over 520,000 patent applications a year. That’s about 1,425 applications a day. The agency’s approximately 6,500 patent examiners are overburdened; on average each patent gets only about 16 hours of review. Virtually all experts agree that this is nowhere near enough time to properly assess a patent. More fundamentally, patent examiners are rewarded for processing applications — and the easiest way to clear a file is to approve a patent. The PTO’s examiners don’t get paid to say no. They’re incentivized to approve.Any patent the PTO grants enjoys a legal presumption of validity. To overturn this presumption, defendants in a patent infringement case must prove the patent’s invalidity by a high standard of clear and convincing evidence. It takes a lot of lawyer fees to do that. And the result is that defendants often pay rather than fight, even when they think they could ultimately have the patent invalidated. More than 97% of patent infringement suits are settled before trial.[/quote]http://www.freakonomics.com/...ent-trolling-taxes-innovationI'm sorry but this absolutely describes a system where the PTO, for the most part, rubber-stamps patents with the expectation that invalid patents will be discovered in the court system. The PTO collects a larger fee for an approved patent than for a disqualified one. The result of this is a PTO that - regardless of validity - grants patents like 5,443,036: Method of Exercising a Cat (with a laser pointer.) Because volume, space, are limited. Someone pitching a tent on my property deprives me of a portion of its use. Yet someone who copies my song deprives me of nothing that was actually mine in the first place; at best, the deprive me of something I wanted to have, but who cares? If wishes were horses we all would ride. If I want to see Lethal Weapon 18, but I don't have the money to afford the ticket - or believe that the film has merit, but not so much as to justify a 9 dollar ticket; or own a copy of the film for my DVD player, but wish to view it instead on my laptop or iPhone; or own a digital copy of the film downloaded from iTunes, but wish to view it on my TV via my Xbox instead of via Apple's AppleTV device; or believe the film is of major cultural importance and wish to illustrate that in my film class with representative samples of the work - then who is MGM or Miramax or 20th Century Fox to tell me that I can't do any of those things?If, indeed, the free market has determined that the appropriate price of admission for Lethal Weapon 18 is zero dollars then its not clear why MGM/Miramax/Fox should be able to use the government's guns to enforce artificial scarcity of copies of the film. Right, and the reason for opposing those laws is that the people's interest in those materials outweigh the interests of content holders to impose an artificial scarcity out of a desire for profit. The amazing and shameful thing is that many are eager to overturn the public's right to information all in order to protect entertainment. As a matter of fact, it's exactly illegal to lend out your movies. Like they say on the back:It's illegal to view it in hospitals, hotels and oil rigs; unauthorized copying and lending is specifically forbidden. Unless you wrote to and received written permission from the publishers of your DVD's to lend them to your friends, you violated the rights of the copyright holders and, in doing so, violated the DMCA. I take issue with the word "exempt." All should be exempt in the sense that you should not be required to pay the author of a work simply because you experienced it. And no one should pay save those who wish to patronize. If artists can't eat under such a system, the problem is with a government that does not feed its citizens. The solution shouldn't be to empower content creators to say "oops, your buddy acted out a scene from the movie he saw last night; now you owe me nine dollars."

Right. Necessarily, any system of commerce via a web page is going to require "information flow between a server and a system to generate a result." If that system requires only a single mouse-click, it by definition infringes Amazon's patent. Then it doesn't infringe Amazon's patent. That's the workaround that Barnes and Noble had to use, ultimately - two clicks to buy something on B&N.com. On iTunes, which has its own internal web browser to display the iTunes Store, the One-Click patent was actually licensed so that users could click one button to purchase and download a song. There's no way to have a single "purchase" button in iTunes that doesn't infringe Amazon's patent, because the patent is so broad it encompasses every possible way to have one button on a web page where you click it and, in doing so, a purchase is made.Amazon didn't "invest" or "research" or do anything else to merit the "One-Click" patent; they just realized that they were the first to file for a patent on it. There's no redeeming public interest in Amazon's government-granted monopoly of "Buy Me Now" buttons on e-commerce webpages and there's no "workaround" because the patent encompasses any and all methods to achieve the same result. It's basically the Amazon tax on their competitors and its a symptom of an "intellectual property" culture run amok.

They are unnecessary. But what constituency exists to advocate for their repeal? On the other hand, what constituencies continue to lobby for the monopoly power granted to them by these laws? And how much money are they prepared to spend on politicians who favor their views?It's a classic example of how politics is shaped by the difference in preference intensity. Your life is not extremely affected by government-granted content monopolies. I mean, once a year maybe you'll be frustrated by the way your carious consumer electronics are legally barred from working with each other. (For me it's during Christmas, when I'd like to play some classical music from my iTunes library on something with decent speakers, like my television, via my Xbox. Impossible, unless the music was "stolen.") It's sometimes a bit of a hassle but nothing worth taking to the streets or even writing a letter about.But if you're one of JRR Tolkein's heirs, copyright and content monopolies suddenly matter a great deal because your sole significant source of income are royalties from licensed Lord of the Rings derivatives and suing people who invent fantasy worlds with short, hungry people in them. And if Congress does its Constitutional duty and allows Lord of the Rings to expire into the public domain, suddenly that stream of sweet, sweet monopoly money is going to dry right on up.Well, fuck those guys. Why should Bubba Tolkein Jr. get to live off his great-granddaddy's genius for his entire life? I mean, almost all of the big-ticket IP's are long since past the point where its their actual creators who are collecting the checks.

I just want to be clear, I'm neither opposed to patents nor to copyright protection. But they both need to be reformed to meet the original Constitutional intent - limited time monopolies meant to allow innovators to recoup the costs of development and research. The system we have now - where the trivial can be patented, where outcomes and not just processes can be patented, where you can get a patent on a gene and therefore hold monopoly control over any technologies that can be used to detect it (not just the ones you yourself developed), where copyrights extend into all perpetuity - is not a system that rewards innovation and creativity, it's one where those activities come with a hefty tax extracted by a small cartel of wealthy copyright owners.

Right, exactly. It's all about extortion and restraining your competitors.Edited by crashfrog, : No reason given.

Then you're being no less stupid. When Apple figures out a way to cheaply manufacture capacitive touch screens, that's an innovation of the arts and sciences that, eventually, makes smartphones usable enough and cheap enough to be put in the hands of a lot more people. We (for varying definitions of "we") all benefit.But when lawyers "innovate" ways to obfuscate the fact that they're patenting the trivial, or when lawyers "innovate" baroque new legal theories to help them avoid patent extortion, the only people that helps are the lawyers. The cause of the arts and sciences is not advanced in any way. The billion or so dollars a year Apple and Google and Microsoft all have to spend hiring better lawyers than their competitors is a Red Queen's Race that drives up the cost of technology. All those billions of dollars they spend to make sure they're not out-lawyered by the other guys are billions they can't spend on improving the technology they produce. It's deadweight loss, a massive transfer of wealth from electronics consumers to the "legal class."I get it - you're exactly the kind of lawyer I'm talking about, so you naturally don't want to believe that when you go to work every day you're making the world a worse place. But you are. And you have to know that your self-serving notion that you somehow challenge the innovators by putting up meaningless legal obstacles and participating in patent extortion sounds really, really fucking stupid. Maybe that's why it was only for a year.Sorry but I'm not impressed by your anecdata. Somebody at the PTO is approving these invalid patents and its almost certainly because we've arranged the financial interests of the PTO in order to produce that outcome. No, they're being asked to do their job. And they clearly are not. How could they, with only 16 hours on average to judge the legitimacy of a patent application? No, because he submitted that patent to demonstrate the absurdity of the US patent system. Point made, I think. You apparently have even more examples but somehow, you don't think that indicates a broken system that needs to be reformed. Amazing. The shop owner who will be materially deprived of the bread, the bologna, and the beer if I take them. But making a copy of a movie I never intend to purchase deprives nobody of anything they were ever going to get. Again, that's why it's not stealing - if I take your loaf of bread, you have one less loaf of bread. You're made poorer by the value of exactly one loaf of bread which you no longer have.But my copy of Lethal Weapon 18 doesn't deprive MGM/Miramax/Fox of anything. They still have just as many copies to sell as they did before. There is no "copyright holder right to be paid for a copy." MGM has no right to force people to buy copies of their movies. They can only try to convince people in the marketplace that Lethal Weapon 18 on DVD is worth 18 dollars. They have no right to demand that everybody else agree that it is. And the stores that stock Lethal Weapon 18 on DVD certainly have a right to prevent people from walking in and shoplifting them, because someone who takes a DVD deprives them of one DVD to sell. But no store has a right to sue its customers because they decide to shop somewhere else with a lower price. Nobody is entitled to a sale. Specifically in the case of a DVD, when you loan it to a friend who then plays it on their DVD player, the process of which naturally necessitates that the DVD be decoded, you're violating the DMCA's anti-circumvention provisions because you're circumventing copy protection in order to violate copyright. Fair use is a positive defense: you violate copyright, but under circumstances that the government has determined can't be the basis of a copyright suit against you. But there's no DMCA provision that allows you to circumvent copy protection to violate copyright for fair use purposes.You can certainly lend your DVD to your friend without fear of reprisal from MGM, but as soon as he watches it, you've both violated the law. You'd think a lawyer would know that.

That patents should not be awarded to extremely trivial inventions, or be issued so broadly that a single patent covers all possible solutions to the same problem. The One-Click patent is an example of both, and the fact that it has survived almost all challenge is further evidence of a patent system in need of reform.