On The Constitutional Reasons Behind Copyright And Patents

from the might-as-well... dept

Last week, when I wrote about Microsoft being the latest in a long line of companies or industry lobbying groups to try to put together a one-sided educational campaign, to try to convince young people that intellectual property was sacred, I suggested that it was about time that someone put together a contrasting "educational" campaign that wasn't biased by the companies providing it. A couple folks asked me to put together just such a campaign -- which, unfortunately, I don't have the time or resources to do. However, I figured that I could at least use the blog to cover some of the key points that any such educational campaign should contain. With that in mind, I'll be running a short series of posts, like my earlier series on economics, that will look at some topics having to do with what, today, is called "intellectual property."

To kick it off, I wanted to discuss the very rationale for intellectual property rights in the US. While many people assume that there's always been strong support for things like copyright and patents in the US, that's not the case at all. Thomas Jefferson and James Madison, who were the main players involved, were actually quite skeptical of the concept. Both talked at length about the subject, but a brief quote from each should give you a sense of their feelings. Thomas Jefferson's eloquent statement read thusly:
"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
He then goes on to note that there can be cases where society chooses to create monopolies "as an encouragement to men to pursue ideas which may produce utility," but also that "other nations have thought that these monopolies produce more embarrassment than advantage to society." Clearly, he saw both the good and bad that such monopolies provide, and knew he was treading a fine line. James Madison felt equally so:
"But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good."
Yet, after discussing it back and forth in a series of letters, the two agreed to include the following in the Constitution, in Article 1, Section 8:
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;
And with that, the basis of copyright and patents was born in the US. However, it was clearly done with ambivalence, and the recognition that such "exclusive" rights could have more downsides than advantages. Note, also, that they were clear in their language, that the sole purpose of granting these exclusive rights was "To promote the Progress of Science and useful Arts." From that reading, it should be clear that any use of these types of monopolies in ways that do not promote the progress of science and useful arts is not covered by the Constitution at all.

These days, this language has been twisted. Supporters of stronger copyright and patent laws often point to this clause in the Constitution, claiming that it means that all of these types of monopolies, by their nature, "promote the progress." Yet, given Jefferson and Madison's own words, it is clear that this was not the intention at all -- and both were quite worried about how these rules could be twisted. For years, Jefferson was able to prevent that by managing the patent system himself. Yet, it didn't take all that long for problems to occur once he no longer was there to watch over the system.

Next up, I'll take a look at the "big three" categories that are often called "intellectual property": copyright, patents and trademarks.
Links to other posts in the series:


Reader Comments (rss)

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    Ed Kless, Feb 21st, 2008 @ 12:51pm

    Hope you will address...

    Mike, I am thrilled you are going to write this series - great stuff. I was hoping you might address the issue of drug development and its relation to patents. It is the one area of concern I have.

     

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      Monarch, Feb 21st, 2008 @ 3:37pm

      Re: Hope you will address...

      Do I detect Sarcasm? Because I haven't a clue how drug development has anything to do on TechDirt. You must be a moronic shill then.

       

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        Ed Kless, Feb 21st, 2008 @ 9:01pm

        Re: Re: Hope you will address...

        Not at all, no sarcasm. Drug development and patent protection is a huge issue. I am curious as to Mike's thoughts on this element of law. I am hoping he can weave in an example or two in his coming articles.

         

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      Mike (profile), Feb 21st, 2008 @ 9:51pm

      Re: Hope you will address...

      Mike, I am thrilled you are going to write this series - great stuff. I was hoping you might address the issue of drug development and its relation to patents. It is the one area of concern I have.

      Hi Ed. I've actually been doing a lot of research in that area. I'm not sure I'll include it in this series, but it may become a future series.

       

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    pinakidion, Feb 21st, 2008 @ 1:00pm

    Yay!

    I was wondering when you'd get around to this. It's been coming for some time. I've always been interested in the distinction between the 'big three' (copyright, patents and trademarks) and how the distinctions between the three are being eroded. For example, the name of the only American Football game played on Feb 3, 2008 has a trademark that is being enforced like copyright.

     

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    Ajax 4Hire, Feb 21st, 2008 @ 1:35pm

    I love the US Constitution,

    It is arguable the most important group of ideas put to paper ever.

    If I were to believe the large corporations, every idea written or documented should get exclusive rights.

    I am glad the authors of the US Constitution put the document into the pubic domain. Otherwise, I might have to pay royalities, stipend or allowance to all of the authors estates.

     

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    ttrygve, Feb 21st, 2008 @ 1:37pm

    Founding Father and ... Open Source?

    it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

    Sounds like Jefferson just paraphrased the concept of "information wants to be free", that's really cool!

    it is clear that this was not the intention at all

    I wholeheartedly agree, but it's worth noting, of course, that intention doesn't matter when interpreting the letter of the law. If a judge agrees with the idea that all such monopolies "promote the Progress of Science and useful Arts", then that is how the law will be enforced.

     

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      Anonymous Coward, Feb 22nd, 2008 @ 5:59am

      Re: Founding Father and ... Open Source?

      Actually, I think "information wants to be free" would be a paraphrase of Jefferson...

       

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      jim sadler, Mar 7th, 2008 @ 10:07am

      Re: Founding Father and ... Open Source?

      In a way Jefferson is defining privacy. A thing is private in the best sense when it is kept totally within the mind of one person. The moment it is communicated it is public. And that communication could even be to a wife. It need not be an open broadcast to the entire world to make it public.
      Obviously most people would find the notion of being forced to be the only one to possess a piece of knowledge to qualify it as private would seem oppressive to most people. But the situation simply is what it is. Any information known by two people is truly a public affair.

       

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    ttrygve, Feb 21st, 2008 @ 1:38pm

    source?

    Also, what was the source for that Jefferson quote?

     

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    Anonymous Coward, Feb 21st, 2008 @ 1:41pm

    Based on previous articles, I get that you don't think patents and copyright should not even exist. What line do you straddle?

     

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      angry dude, Feb 21st, 2008 @ 1:47pm

      Re:

      The line of a loser who cannot create anything new but feels entitled to use other people's creations for free...

       

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        Monarch, Feb 21st, 2008 @ 3:41pm

        Re: Re:

        Ah, the Angry Dude Shill speaks.
        For the average American, as I'm sure Mike is. The line is that the monopoly power of IP should be lessened, not strengthened.
        The IP should be there for a very limited amount of time. But as software goes, it should only be able to be copyrighted and not patented, as Patents should only be for inventions and not IDEAS!
        Angry Dude just has his head stuffed so far up his rear end, it's appearing back out the other side.

         

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        Anonymous Coward, Feb 21st, 2008 @ 5:41pm

        Re: Re:

        The line of a loser who cannot create anything new but feels entitled to use other people's creations for free...

        Hey Angry Dude,

        Didn't I fire you earlier today?

         

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    Steve R. (profile), Feb 21st, 2008 @ 1:47pm

    Shifting Landscape

    Good post. One trend in the copyright/patent debate has been the aggrandizement of rights by the copyright/patent holder. They have successfully hid behind the mantra that they need to protect their rights. What has not be adequately discussed is that the consumers rights to use their legally acquired content is being eroded. They are being stripped of their property rights. Or to put it another way, the copyright/patent holders are stealing (theft) from the consumer.

    I hope that you will provide a historical look at this trend.

     

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    We need another Thomas Jefferson, Feb 21st, 2008 @ 1:58pm

    off subject

    When you read the teachings of America's founding fathers you begin to appreciate their collective brilliance. We could use a statesman like Thomas Jefferson today.

    I especially like " as he who lights his taper at mine, receives light without darkening me. "

    It truly captures the convenience of an idea from one person to another does not diminish the originator.

     

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    Anthony, Feb 21st, 2008 @ 2:36pm

    You can't be serious...

    From the tone of this article, it sounds like you (author) are implying that the benefit of Copyrights and Patents are outweighed by the drawbacks. I'm sorry, but that is simply a preposterous statement. Not many pundits would argue that the U.S. IP legal system (or any other system for that matter) is flawless, myself included. However, the notion that we are better off without it is plainly ignorant. Without the patent system, here is what the United States would be:
    1. Still creeping out of the industrial revolution
    2. Suffering from a horribly diminished economic status due to the fact that, without little things like "infringement," low-wage countries and their corporations would utterly dominate us
    3. We probably would have lost WWII
    4. I sure as heck wouldn't be using my laptop to browse the internet right now, because there would be no "computers" or "internet".

    Copyrights... probably not so severe of a drop in creativity if you take away exclusivity, but it's doubtful that our entertainment industry (movies, tv, music, books, magazines, etc.) would be much today without some monetary incentive for producing great work.

    Problems exist, for sure. Patent litigation is borderline ridiculous at this point, and the USPTO is not properly governing the system. I won't even mention DMCA, which is clearly overbearing in some regards. Still, I really hope this "series" of yours doesn't mislead uneducated, impressionable people into actually believing that the IP protection is a bad thing.

     

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      Fentex, Feb 21st, 2008 @ 3:05pm

      Re: You can't be serious...

      [Referring to Anthonys argument that IP law has been useful to the U.S]

      It doesn't require you to be wrong in your claims (that U.S IP law helped it become a powerful industrial nation) for it to still be true that changes occuring recently are a mistake.

      This article hasn't made any argument that you are refuting but it is clear that the author believes modern expansion of IP law is danerous. That can be true, and your idea that in the past IP law helped the US might be true, without contradicting each other.

      I think you're wrong, I think much weaker or even absence of IP law would have not have lessened the U.S's opportunities to advance but that isn't a point that needs to be proved in an argument about how IP law is changing today.

      Even if copyrights (the ignoring of European ones which enriched many U.S citizens) patents (again the ignoring of which has made many people rich - an excellent example being the rise of Swiss chemical industries) and trademarks helped make the U.S as a whole wealthy that doesn't mean changes occurring will continue to do so.

      A system that once worked can be broken.

       

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      Anonymous Coward, Feb 21st, 2008 @ 3:30pm

      Re: You can't be serious...

      You clearly did not read Against Intellectual Monopoly.

      Come back when you finished reading it. Than we can have real debate about the merit of the so called "intellectual property" system that we have today.

       

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      Mark Murphy, Feb 21st, 2008 @ 4:24pm

      Re: You can't be serious...

      "However, the notion that we are better off without it is plainly ignorant"

      One could equally argue that it is partly due to the US's unilateral ignoring of international copyright law that the US emerged as a world power come World War I.

      The Copyright Act of 1790, which established the US system of copyright, only applied to US authors. Publishers were welcome to reprint foreign authors as much as they wanted, with no repercussions. Since there were few domestic authors to speak of, most of the literature distributed in the first several decades of our nation's existence did so without respecting copyright from most of the affected authors.

      Notably, there were no reports of hell freezing over.

      Even after foreign authors were granted some measure of protection in 1891, it was a half-hearted measure at best. It wasn't until after WWII before the US started getting serious about complying with international copyright agreements. Of course, by then, the US was a serious exporter of copyrightable material and, as such, had a bunch of businesses with vested interests in protecting their own material.

      For an excellent series of blog posts about the history of copyright, visit this site and choose the "copyright history" category.

       

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      Vincent Clement, Feb 21st, 2008 @ 4:55pm

      Re: You can't be serious...

      but it's doubtful that our entertainment industry...would be much today without some monetary incentive for producing great work.

      Really? One of the reasons the movie industry moved to California was to make it difficult for Thomas Edison to collect royalties on his patents.

       

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        Anthony, Feb 21st, 2008 @ 5:22pm

        Re: Re: You can't be serious...

        What are you talking about? I'm referring to the financial incentive given by a copyright for the effort put into writing a great script or song or book... what the heck do Thomas Edison's patents have anything to do with that statement?

         

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        Anonymous Coward, Feb 21st, 2008 @ 5:47pm

        Re: Re: You can't be serious...

        Really? One of the reasons the movie industry moved to California was to make it difficult for Thomas Edison to collect royalties on his patents.

        Ah. Rabbi would be proud. Hold on a second, I just got a call from Walt Disney.

        ...He says he's still rolling in his grave.

         

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      DanC, Feb 21st, 2008 @ 9:22pm

      Re: You can't be serious...

      Concerning your numbered points, do you have any actual evidence of this, or is it simply unfounded conjecture on your part? Purporting to "know" the events of an alternate history where the patent system does not exist is simply pointless.

      Assuming the US would still be "creeping out" of the industrial revolution when the US essentially infringed on foreign intellectual property in order to enter the industrial revolution seems particularly ludicrous.

      IP protection as a concept isn't necessarily a bad thing, but unfortunately it is extremely simple to corrupt it in practice. The current system in the US has become bloated and incapable of dealing with its responsibilities, and the allowance of business method patents has helped make it a joke. The USTPO is overworked and unable to efficiently process patents in a timely manner, and relies too much on lawsuits to weed out bad patents. The system is broken.

       

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      Mike (profile), Feb 21st, 2008 @ 10:02pm

      Re: You can't be serious...

      From the tone of this article, it sounds like you (author) are implying that the benefit of Copyrights and Patents are outweighed by the drawbacks

      In many, many cases they do. Just as the Founding Fathers feared. The deeper you look at the details the more you realize how much the downsides outweigh the upsides.

      I'm sorry, but that is simply a preposterous statement.

      Again, that's not true once you look at the evidence.

      However, the notion that we are better off without it is plainly ignorant.

      I've seen the research. I've done plenty of research myself. I'm not sure how you can say 10 years of studying this topic makes me ignorant.

      Without the patent system, here is what the United States would be:
      1. Still creeping out of the industrial revolution


      This is clearly wrong. Look at the research of Eric Schiff. He showed how the Netherlands and Switzerland both *sped up* their industrialization by purposely avoiding a patent system (the Netherlands got rid of theirs completely for a while, Switzerland delayed putting one in place, and when they did put it in place, it covered very little). in both cases, it helped the countries industrialize faster. So, the statement that it hurts industrialization is factually and historically incorrect.

      I'd also suggest you look at the research of Petra Moser, who found that countries without patent systems show just as much innovation as those that have them.

      Then there's the research of David Levine and Michele Boldrin, who showed how a lack of pharmaceutical patents in Italy helped that country have a large and highly competitive pharma industry.

      Basically, you make some claims that simply aren't backed up by the research.

      2. Suffering from a horribly diminished economic status due to the fact that, without little things like "infringement," low-wage countries and their corporations would utterly dominate us

      Again, that's simply untrue. I point you to the same research above. Eric Schiff's in particular. In both the Netherlands and Switzerland, the lack of patents helped them build up very strong industries, allowing them to dominate other countries, even those that had lower wage labor.

      3. We probably would have lost WWII

      Huh?!?

      4. I sure as heck wouldn't be using my laptop to browse the internet right now, because there would be no "computers" or "internet".

      Uh. I doubt that as well. The core technologies behind both were gov't funded research, not covered by patents. It's true that more recent inventions have been patented, but it's fallacious to assume that without patents the same advances wouldn't have been made.

      Copyrights... probably not so severe of a drop in creativity if you take away exclusivity, but it's doubtful that our entertainment industry (movies, tv, music, books, magazines, etc.) would be much today without some monetary incentive for producing great work.

      Again, if you look at the evidence, you'd realize that copyright actually holds back the industry by limiting efficiencies.

      Still, I really hope this "series" of yours doesn't mislead uneducated, impressionable people into actually believing that the IP protection is a bad thing.

      If you can point out something misleading or uneducated, I would appreciate it. I certainly wouldn't plan on misleading anyone. I will back up all my statements. If you think I got something wrong in the post itself, please do point it out.

       

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        Wesley Parish, Mar 7th, 2008 @ 1:08am

        Re: Re: You [must] be [facetious]...

        I'd also suggest you look at the research of Petra Moser, who found that countries without patent systems show just as much innovation as those that have them.

        I can vouch for that. "Innovation" is the work of individuals and small groups, not companies per se. In the Aerospace field, small companies are responsible for as much new development as the larger ones, or more - the VariEze and all its follow-ons being one particularly interesting example. And now the guy has developed a sub-orbital space ship ...

        People experiment and develop new things or new developments of older things out of need or interest. In much the same way writers write and musicians play and programmers program and mathematicians play with maths - because of need and love of what they do.

        This attempt to force an "intellectual monopoly" constriction on the world doesn't serve inventors and innovators, because it's not geared to their psychology; it's geared to creating and rewarding monopolies, and that is just a long suicide note for the West.

         

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      Etch, Mar 24th, 2008 @ 11:39am

      Re: You can't be serious...

      hahahahaha...

      "Without the patent system:"
      "3. We probably would have lost WWII"

      Yeah buddy, sure thing! lol

       

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      JC, Aug 20th, 2009 @ 10:49pm

      Re: You can't be serious...

      Ya gotta be jokin! "We probably would have lost WWII"? Like the Germans or Japanese would even worry about copyright or patent law - heck, we stole plenty of ideas and inventions too.

       

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    Steve R. (profile), Feb 21st, 2008 @ 3:02pm

    Basis of Proof

     

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    Nick (profile), Feb 21st, 2008 @ 3:03pm

    Believing that monopolies and protection of IP guarantees capitalism is like believing you can keep a volcano from erupting by throwing a virgin into it. Some commenter here are so afraid that it wont work that they think the ideas are "preposterous."

    IP protection is a religious faith, and just as dangerous! When you tell a Christian there is no God, and failure to follow God means that you will go to hell, they will come up with all kinds of arguments, but not a shred of proof. Of course, some of the faithful will profit on the believe by using this social control. Techdirt provides the proof that IP monopolies are not worth the trouble.

    We are at a point now where information flows so freely that we no longer need IP monopolies. When you argue against the elimination of IP, you have or think you have something to gain from it. Only the fittest deserve to survive (and hopefully the fittest are not the ones who argue successfully for more and stronger IP monopolies).

    IP monopoly makes the rich richer and the poor poorer!

     

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    AC, Feb 21st, 2008 @ 5:19pm

    File ‘sharing’ or ‘stealing’?

    Third paragraph...

    "File ‘sharing’ or ‘stealing’?" see here:
    http://www.latimes.com/news/opinion/la-oew-healey18feb18,0,5092348.story

     

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    Anthony, Feb 21st, 2008 @ 5:19pm

    Re: Nick
    You didn't write a single point worth reading. Your analogies to volcanoes and jesus would only catch the attention of a moron... which I guess makes me a moron because I'm wasting my time writing about them.

    Re: Fentex
    I realize that what the author said and what I said can co-exist. This is why I specifically noted the tone of his writing and expressed concern at the direction this series will likely take via future postings. Nor do I disagree with you that IP is changing (has changed) the world - but that isn't the argument I was making either.

    Re: Anonymous Coward
    Go for it - debate away. I don't need to read another person's thoughts to have some of my own. And why do you refer to it as the "so-called Intellectual Property system"? Last time I checked, the United States has the global model and everyone else is trying to play catch up.

    Re: Mike Murphy
    I do admit that my argument is far more suited to the patent system than copyrights. However, how on earth are you asserting that the U.S. gained world prominence as a result of international copyright infringement? Since when did not paying royalties to a French novelist win any wars or bolster innovation?

    And please don't try and make it seem like (a) the U.S. was any worse than any other country during the 19th Century, and (b) the U.S. isn't one of the world leaders in international copyright laws in the modern era. In the modern era (an era when international Copyright protection could actually influence the global economy), no nation has been more protective of copyrights (not just domestically owned) than the United States. Look at nations with widespread piracy and lax IP laws - China, Korea, India, Brazil, Malaysia, Russia - go ahead, defend those countries.

     

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      Anonymous Coward, Feb 21st, 2008 @ 7:03pm

      Re:

      You are not the only one who hold this position over the history of techdirt. This topic has been discussed to death.

      I am simply giving you a book to read so you can avoid making the same mistakes that many pundits before made.


      Plus this book is not merely an opinion, it is an opinion by economists who done extensive researches into intellectual property.

      If you going to argue with abolitionists, it will be better for you and everyone to know the stuff beforehand so the debate can proceed to higher level of discussion.


      If you don't read, you're going to repeat the same flawed argument. That's not good for debates when one side cam
      t debate well.

       

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    Matt Fen, Feb 21st, 2008 @ 5:46pm

    Be nice everyone

    Patents and IP are a good thing for the country and individuals. I have a patent. I am looking at starting a business around it. That business will take much capital. If I am going to pour my money or someone else's into the endeavor it clearly matters that I have exclusive control over the idea. If not, where is the incentive to risk treasure? This is fundamental to the success of Capitalism, and why other systems that may look good on paper fail. I am not a big corporation, but perhaps a good idea and 20 years of growing the idea leads to many jobs and in my products case, better health for consumers.
    The idea of a Patent system has been proved to be exceptionally positive on the whole for the US. Though some recent decisions have questionable merit. The recent Millennium Copy right act was a travesty to Americans passed by a congress in big business's pocket. That story is outrageous and not at all what the spirit of the law was about.

     

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      Mike (profile), Feb 21st, 2008 @ 10:08pm

      Re: Be nice everyone

      Patents and IP are a good thing for the country and individuals. I have a patent. I am looking at starting a business around it. That business will take much capital. If I am going to pour my money or someone else's into the endeavor it clearly matters that I have exclusive control over the idea. If not, where is the incentive to risk treasure?

      What's wrong with actually competing on how well you execute in business?

      James Watt had a patent on the steam engine, and because of it, the US slowed down the industrial revolution by nearly 20 years, as no real improvements were made until the patents expired. But after that, once real competition occurred, the industry expanded.

      The incentive to risk is the MARKET beating a path to your door for your product. If you can't deliver a product the MARKET wants, then that's a different issue.

      This is fundamental to the success of Capitalism, and why other systems that may look good on paper fail.

      I fail to see how a gov't granted monopoly is consistent with capitalism.

       

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        Matt Fen, Feb 22nd, 2008 @ 8:02am

        Re: Re: Be nice everyone

        Mike,
        I agree about the patent slowing down the spread of a technology. Just look what happened to telecoms when Ma Bell lost it's monopoly. But it is an absolute reality that investors are looking for barriers to entry for would-be competitors. This is the reality of venture capital, and can not be understated.
        My point regarding the failure of other systems is it is, or should be clear that people are motivated by "what's in it for me". The Patent system is a mechanism that creates an incentive to take an idea and commercialize it, and thus create a gain. That does not happen easily, which is back to my first point.
        Cheers

         

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          Anonymous Coward, Feb 22nd, 2008 @ 8:12am

          Re: Re: Re: Be nice everyone

          I submit that "what's in it for me" isn't always monetary. Look at Open Source software for an example of people doing innovative things without monetary incentives.

          I posit that even if patent does create a necessary incentive, the term is way, way too long. Twenty years is most of a career; having a monopoly for most of a career can't be in the public's best interest. A term of three to five years would be enough to build a business, and after that competition drives innovation.

          When you say it "can't be understated," do you mean it is always less than it's stated as, or that it shouldn't be understated?

           

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            Matt Fen, Feb 22nd, 2008 @ 9:11am

            Re: Re: Re: Re: Be nice everyone

            AC,
            I mean this is how it really is dealing VC's.
            Your comment about open source is interesting and valid to a point. I would say it is hard to get VC's to invest in open source projects; Red Hat maybe the exception. Not really sure.
            In software terms 20 years is an eternity, but with many products it fits nicely on a bell curve.
            Cheers

             

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              Mike (profile), Feb 22nd, 2008 @ 9:45am

              Re: Re: Re: Re: Re: Be nice everyone

              I would say it is hard to get VC's to invest in open source projects

              Really?

              http://vcastocks.com/index.php/2006/04/11/zimbra-raises-14500000/
              http://ven turebeat.com/2008/02/07/sugarcrm-raises-20m-more-for-open-source-crm/
              http://sanjose.bizjournals.co m/sanjose/stories/2006/02/13/daily23.html

              We're seeing more and more VCs realize that patents are a bad thing:

              http://www.techdirt.com/articles/20060414/0120234.shtml

              So, the idea that VCs need to see patents and won't fund companies without them is pretty clearly a myth.

               

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                Matt Fen, Feb 22nd, 2008 @ 2:16pm

                Re: Re: Re: Re: Re: Re: Be nice everyone

                Mike,
                So their business model uses open source. You got me there.
                Here is a passage from an email from a Angel group Centennial Investors to me yesterday.
                "Also, do you think you would be able to secure any IP relating to location based information services or something along those lines? Most angels like to see some type of IP or serious competitive advantage that would make the barrier to entry significant. The basic concept is ‘what will prevent someone else from copying what you have done and do the same thing?’, especially if it is a big player with significantly more money. I just wanted to address those things because it is likely something other potential investors will ask."
                I guess writing about it and living it are a bit different.
                Cheers

                 

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                  Mike (profile), Feb 22nd, 2008 @ 3:17pm

                  Re: Re: Re: Re: Re: Re: Re: Be nice everyone

                  Here is a passage from an email from a Angel group Centennial Investors to me yesterday.

                  I don't deny that there are investors who want IP in order to invest. But you claimed that investors as a group won't invest without them. That's simply wrong. There are some who do and some who don't. Claiming that you NEED patents to gain investment is wrong. You only need them to get investment from certain investors, and I'd argue the ones who demand IP are not good investors long term.

                  I guess writing about it and living it are a bit different.

                  You do realize I work for a funded company, right? That I've gone through the process of raising money? And that I did so without worrying about IP rights? So, yes, I'm living it as well as writing about it.

                   

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              Anonymous Coward, Feb 22nd, 2008 @ 10:08am

              Re: Re: Re: Re: Re: Be nice everyone

              I challenge you to present a scenario where a 20 year monopoly "fits nicely" but a 5 year monopoly wouldn't serve the public interests better. 20 years without competition is GREAT for the company in question, but bad for customers and bad for progress.

               

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                Matt Fen, Feb 22nd, 2008 @ 2:57pm

                Re: Be nice everyone

                AC,
                If a company can't make money at something, they are not going to do it in the public interest. I'm sure you can find examples where that is not the case, but that is not business. A business wants all the competitive advantage it can get, people, ideas etc. It is in the public's interest for business to succeed. That is why the founders made a system. It is in the public interest for the government to create an environment where business can succeed ie patents. Most businesses are not Microsoft or Exxon, they are small to mid size. We create most of the jobs, and we innovate better then anyone else on the planet. Don't confuse big businesses abuse of the legal system, justice system, and political system with what it takes for the real innovators to build businesses, which is again where the majority of jobs and innovations come from.

                 

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                  Mike (profile), Feb 22nd, 2008 @ 3:21pm

                  Re: Re: Be nice everyone

                  If a company can't make money at something, they are not going to do it in the public interest. I'm sure you can find examples where that is not the case, but that is not business.

                  Indeed, but why do you assume that a patent is necessary to profit? It is not.

                  A business wants all the competitive advantage it can get

                  Yes, I'm sure businesses would love for gov't to grant them a total monopoly on their business. That's an advantage. Yet is it good for the rest of society and industry? History has emphatically shown no, it is not.

                  It is in the public interest for the government to create an environment where business can succeed ie patents.

                  Whoa there nelly. You made a big jump. Yes, it is in the public interest for the gov't to create an environment where business can succeed, but that doesn't necessarily mean patents are good. Especially when it can be shown that patents tend to HOLD BACK many businesses, then the patent system would do the opposite of what you claim.

                  You again seem to be focusing on this from the view of a single company, as if protecting that single company is better for the overall economy. However, if you look at it from a macroeconomic view, where you want an industry to succeed, then you may be better off without protectionism, and encouraging competition instead.

                   

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      Alimas, Feb 22nd, 2008 @ 7:27am

      Re: Be nice everyone

      I'm not as well-informed on patent law as some others here, but it seems to me...
      ...your scared you couldn't effectively market and make wealth off your product unless you had a patent. That implies that your product won't be of very strong value to anybody. If it was, a good marketing campaign would make it sell well. You want an advantage which takes you away from legitimate competition. Doesn't sound like capitalism to me.
      Now, if you developed that product with no patent and it was a good idea with genuine usefulness to the public - it would sell and undoubtedly, someone would copy your idea. What do you do now? Do you go out of business? Do you shrivel up and die? No, you improve your product. Then he'll improve his and the cycle goes and we call it innovation.
      Innovation is stagnated by patents as no one can use the idea again and must build something completely different from the ground up in order to compete in your market. Until they get cross that same 20 years of development you did, you will lead the pack.
      In fact, the more I think about it, the less it makes sense that a patent should last anymore than say 3 or 4 years.
      Hmmmm...

       

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        Matt Fen, Feb 22nd, 2008 @ 8:46am

        Re: Re: Be nice everyone

        Alimas,
        It's a long road to get to the marketing of a product. My idea is simply copied and though I agree about competition can make one become more efficient, unless your an established deep pockets company, your chances are slim to none of making it to market.
        I have a business around an innovative product for the real estate market but no IP. I have a patent on something different. I need to raise money to market my existing business's products. No one wants to loan me the money or invest without there being barriers to competition. They pat me on the back, say they see it's potential, give me awards, but no money. That is how the world really works. Now when I floated my patented idea in front of the same investors they see a greater potential for their investment. Part of that is based on the patent. It will cost millions of dollars to build a business around the idea. I don't have it, so if they are going to invest, they want time to make it work, grow the business and get a return on their investment. You can talk theory all you want, but this the reality I have found.
        Cheers

         

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    Nick (profile), Feb 21st, 2008 @ 5:59pm

    Anthony is wrong unless is is a monopolist himself

    Anthony,

    Still creeping out of the industrial revolution? You think the lack of competition (competition: something that I know you know is the driver of innovation in something such as software, fashion, business models) created by monopolies granted trough patents of methods in the design of machinery helped to decrease the span of the industrial era? You are sorely mistaken. Competition, and the borrowing of ideas and methods to use against your competitors drives innovations, and shortens the life cycles of technologies. Imagine if there was only one company that was able to use ICs or disc drives? Sure, you could have licensing schemes, but what about the poor innovator with the bright idea? Without such innovators contributions, we are all worse off. Please counter this argument.

    The countries you mention all have emergent economies that will pass the US becuase they ignore some IP. We try to keep them down with IP, but it is a battle not worth fighting. Yeah, our accusations on China that they are "infringers" is really putting a damper on their economy for the advancement of western economies, isn't it? Please explain how the failure to make other people play our game benefits us. Low wages is more of a human rights issue, and in the west, we are more progressive in this area becuase we have freedom of speech.

    IP means we would not have won WWII? I am guessing you think we one becuase we had superior technology that the enemy could not use becuase they respected our IP. If this is your reasoning, it is ridiculous. Do you think anyone gives a damn for the respect the enemy's IP? Hell, the enemies in WWII were using and paying for the technology of IBM. The west profited from this and still won.

    The reason the internet exists is becuase of free and open standards, not IP. The internet is one big copy machine, made to withstand a nuclear attack. This same invincibility makes it impossible to win a war against certain types of uses that IP law enforced business models will eventually bed destroyed by unless they change.

    And my single point in my last comment was that Mike makes a convincing argument that IP monopoly no longer "promote the Progress of Science and useful Arts," it promotes the rich at the expense of the poor. We are to assume that Progress of Science means improving the lives of the poor, not continuing to line the pockets of filthy rich. How do you define the Progress of Science? Tell me if you think the Progress of Science mean creating more debt for the poor.

    Regarding a "global model that the rest of the world is trying to catch up to," tell me non-geeks on countries in countries in South America took to the streets in protest to support for open source software? Tell me why the people of countries that are resiting joining WIPO becuase of the enforcement of monopolistic laws in their country? The poor of NO country wants their government to have more restrictive IP laws.

     

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    KD, Feb 21st, 2008 @ 6:45pm

    Patents are just a tool large companies use to bash each other and stomp out small companies. If they ever served the original purpose of promoting progress, that has long since ceased to be true. They now are inhibitors of progress. There may be an occasional case where a lone inventor or small company successfully uses a patent to defend itself while building up a new, unique business. But those cases are far too few to make up for the damage done to society by the misuse of patents. Jefferson and Madison were quite correct in their fears that this would happen. Man, those guys were smart.

    Large companies have enough other ways to bash other large companies and stomp out small ones. The patent tool should be removed from their hands. Either abolish patents outright or severely restrict their issuance and use. Abolishment is probably the better choice, because I really believe the system is unfixable given the influence/control that the large corporations have over the governments (plural -- I don't mean just the U.S.). And by "abolish" I mean revoke all existing patents and stop issuing new ones.

    Copyrights may have fewer problems, but they don't get off free, especially with the crazy excesses of recent years. The completely unjustified extension of the length of time a copyright covers a work is one of the biggest problems. The despicable DMCA is another. At a minimum both of those should be abolished. The term of a copyright should be much shorter -- somewhere in the range of 5 to 10 years. I'm not sure whether we should prohibit copy protection schemes entirely, or put in place policies that greatly discourage it (perhaps emphasis on preserving fair-use rights would be enough to kill it).

    As with patents, the control big money has over our governments is the biggest barrier to correcting the problem. Solve THAT problem and the others will be much easier to solve. Unfortunately, I have no idea how to solve that one.

    Concerning Anthony's claim: "Last time I checked, the United States has the global model and everyone else is trying to play catch up." That's grossly incorrect. The U.S. is bludgeoning other countries into adopting laws such as ours under threat of trade penalties, other countries are not adopting them because they see it as a desirable model.

    I've seen some people referring to "intellectual property" as "imaginary property". I think that is a great way to attack the mistaken notion that patents and copyrights are property. I don't know whether establishing the term "intellectual property" was a brilliant move on the part of big companies to change the frame of discussion about the topics, or was just the result of laziness of lawyers wanting to use the short term "IP" instead of "patents, copyrights, and trademarks". Whichever it was, it is time we reframe things by promoting the term "imaginary property", taking every opportunity to ridicule the notion that ideas can be owned. If we can get people to laugh at the very notion of "intellectual property", that would be a good start to abolishing it.

     

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      Anonymous Coward, Feb 21st, 2008 @ 6:54pm

      Re:

      A term I especially favors: intellectual monopoly

      It describes what these IP really are. They are essentially monopolies over specific ideas.

      I don't like imaginary property because it only describe what it is not. Intellectual monopoly describe what IP really is.

       

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    Henry, Feb 21st, 2008 @ 7:05pm

    For those of you debating whether or not patent and IP law is a good or bad force in promoting business and competition take a look at this earlier post: http://techdirt.com/articles/20080215/135455266.shtml

    it brings up an interesting point that may give you something to think about.

     

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    Anonymous Coward, Feb 21st, 2008 @ 8:39pm

    If you don't read, you're going to repeat the same flawed argument. That's not good for debates when one side cam
    t debate well.

    So you think that economists don't disagree on things? You site one book by an expert, and claim victory? Someone else sites something else written by an expert and then what?

    Here is another thing to keep in mind when bringing up our founding fathers. Thomas Jefferson wrote that a black man is only 3/4ths the value of a white man (or was it 1/2?) He owned slaves. I believe that he also banged his slaves. How does that sit today?

    Thomas Jefferson did support patent and copyright laws, although he wanted them limited. Patents are limited to 20 years, which I believe he would agree with. Copyright is a different matter that I think has gone too far.

     

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      DanC, Feb 21st, 2008 @ 9:37pm

      Re:

      History correction time:

      The three-fifths compromise to the US Constitution was proposed by James Wilson and Roger Sherman, and was essentially a carry-over from a proposed amendment to the Articles of Confederation by James Madison.

      Jefferson was not responsible for it's inclusion, although he may have supported it.

       

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      Anonymous Coward, Feb 22nd, 2008 @ 6:22am

      Re:

      "Someone else sites something else written by an expert and then what?"

      Well, if anyone else WOULD we might find out.

       

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    Benjamin Franklin, Feb 21st, 2008 @ 11:45pm

    Inventions

    ``As we enjoy great Advantages from the Inventions of others, we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously.''

    ---Benjamin Franklin, quoted in Benjamin Franklin by Edmund S. Morgan.

     

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    SteveD, Feb 22nd, 2008 @ 3:35am

    The British comparison

    A great piece Mike, and I look forward to the rest of the series.

    I'd love to get into the origins of patent law in the UK and see if they were formed around similar purposes.

    One point though; James Watt was a Scottish engineer rather then American. I cant remember if I first read the story on TechDirt or in some of Matt Masons work, but he's normally credited with delaying the British industrial revolution rather then the American one. I belive it was the first major enforcemen of patents in this country.

     

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    Guy @ EPO, Feb 22nd, 2008 @ 4:05am

    The arguments presented in one document

    I recommens reading http://www.epo.org/topics/patent-system/scenarios-for-the-future/download.html - it's a free download and can be downloaded in bits. The Executive Summary may give the quickest insight.

    You'll find there the very basic arguments, in a neutral voice, as witnessed by the book's sub-title "What global legitimacy might such [IP] regimes have [in 2025]?".
    The book - and the project which inspired it - looked at patenting and put the arguments both pro and anti in terms of future scenarios. What if business dominates (grey)? What if society or ethical voices dominate (green)? What if technology dictates the future (blue)? Or what if geo-politics dominates (red)?

     

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    Jerry in Detroit, Feb 22nd, 2008 @ 7:21am

    Intellectual Property

    If "Intellectual Property" is so valuable why aren't copyright/patent holders paying more to defend their "valuable" property. I foresee an intellectual property tax. This is "fair" We pay property taxes. Why not an intellectual property tax.

     

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    Anonymous Coward, Feb 22nd, 2008 @ 7:35am

    "Information wants to be free?"

    I don't agree with the overly general "information wants to be free" mantra.

    Vin Cerf, 1999

     

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    Anonymous Coward, Feb 22nd, 2008 @ 7:49am

    Alimas, so how does someone recover the cost of research if things can just be easily copied? In the end, marketing wins the day, not innovation (I don't believe that marketing is innovation.)

    I believe that a company must do one of two things to be sustainable over the long haul. One is innovation, the other is marketing. Both is not required.

    I believe the question is does a patent promote profit for the inventor? If not, then why would anyone want a patent? If so, then does a patent discourage others from inventing other things and does that outweigh the original value from the initial patent?

    A patent lasts 20 years, for some industries, this is a long time, for others, it is not very long.

     

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      Alimas, Feb 22nd, 2008 @ 9:50am

      Re:

      "Alimas, so how does someone recover the cost of research if things can just be easily copied? In the end, marketing wins the day, not innovation (I don't believe that marketing is innovation.)" Not everything is easily copied. Most physical goods would require significant effort to recreate just one (for the average Joe), even if the research doesn't have to be done over again. In most environments most people would prefer to simply purchase the product made by the other individual until finally one person decided to go through the effort to reproduce the item for him to sell himself. The original researcher has the edge cause he came first and penetrated the market first, hopefully he can have ideas for improving his initial product on the table before the copier has even managed to start some sort of mass production. "I believe that a company must do one of two things to be sustainable over the long haul. One is innovation, the other is marketing. Both is not required." With a patent system in place that holds for such a long time, your right, innovation might not be necessary to stay sustained - which is exactly my point. If the company doesn't need to innovate to continue to bring in profit - why should it until it needs to? Thats exactly the problem we're discussing. How important marketing is depends on the product and target market. In either situation that would be heavily varied. "I believe the question is does a patent promote profit for the inventor? If not, then why would anyone want a patent? If so, then does a patent discourage others from inventing other things and does that outweigh the original value from the initial patent?" Well, of course it promotes profit for the inventor. No one else can produce it, hes the sole source, the only profiteer. Unless someone comes up with a way to fulfill the same need he is in a completely different way, he owns that market. I could see the argument that forcing people to have to come up with a whole new way to do it as a means to create innovation, but the problem with that is your forcing anyone that wants to compete to have to start all the way at the beginning and trudge through the original inventor's steps to do it. As it was a lot of work for the original gentlemen, it is a lot of work for anyone else, as a result very few people actually try to jump into the market. However, if people can copy it, the original man will be forced to innovate to maintain his company, in addition to anyone that has serious attitudes about getting a long term market share. I'm not saying the patent system destroys innovation, just that it stifles it in its current form. I think about two years would be good for a patent. Allow the first company to really get rolling with his product, get it out there and get people ready to jump in create competition to fuel the innovation. "A patent lasts 20 years, for some industries, this is a long time, for others, it is not very long." How fast technology would develop and flip would depend largely on the type of industry, as well as other factors, yes. Long time till your products next big change? Time to inject some marketing.

       

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        Alimas, Feb 22nd, 2008 @ 9:54am

        Re: Re:

        Wow. Whoops. Let me redo that with some paragraph breaks, eh?



        "Alimas, so how does someone recover the cost of research if things can just be easily copied? In the end, marketing wins the day, not innovation (I don't believe that marketing is innovation.)"

        Not everything is easily copied. Most physical goods would require significant effort to recreate just one (for the average Joe), even if the research doesn't have to be done over again. In most environments most people would prefer to simply purchase the product made by the other individual until finally one person decided to go through the effort to reproduce the item for him to sell himself. The original researcher has the edge cause he came first and penetrated the market first, hopefully he can have ideas for improving his initial product on the table before the copier has even managed to start some sort of mass production.



        "I believe that a company must do one of two things to be sustainable over the long haul. One is innovation, the other is marketing. Both is not required."

        With a patent system in place that holds for such a long time, your right, innovation might not be necessary to stay sustained - which is exactly my point. If the company doesn't need to innovate to continue to bring in profit - why should it until it needs to? Thats exactly the problem we're discussing. How important marketing is depends on the product and target market. In either situation that would be heavily varied.



        "I believe the question is does a patent promote profit for the inventor? If not, then why would anyone want a patent? If so, then does a patent discourage others from inventing other things and does that outweigh the original value from the initial patent?"

        Well, of course it promotes profit for the inventor. No one else can produce it, hes the sole source, the only profiteer. Unless someone comes up with a way to fulfill the same need he is in a completely different way, he owns that market. I could see the argument that forcing people to have to come up with a whole new way to do it as a means to create innovation, but the problem with that is your forcing anyone that wants to compete to have to start all the way at the beginning and trudge through the original inventor's steps to do it. As it was a lot of work for the original gentlemen, it is a lot of work for anyone else, as a result very few people actually try to jump into the market. However, if people can copy it, the original man will be forced to innovate to maintain his company, in addition to anyone that has serious attitudes about getting a long term market share. I'm not saying the patent system destroys innovation, just that it stifles it in its current form. I think about two years would be good for a patent. Allow the first company to really get rolling with his product, get it out there and get people ready to jump in create competition to fuel the innovation.



        "A patent lasts 20 years, for some industries, this is a long time, for others, it is not very long."

        How fast technology would develop and flip would depend largely on the type of industry, as well as other factors, yes. Long time till your products next big change? Time to inject some marketing.

         

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    Michael Martin, Feb 22nd, 2008 @ 8:14am

    Historical note

    You're playing a little fast and loose with the history here. Jefferson was part of the first panel of patent examiners, but it would be incorrect to say that he kept the system running smoothly. In fact, he was overwhelmed by the number of applications, and ended up allowing a registration system to go into effect -- i.e., no examination of applications. Applications weren't examined again until 1836.

    Jefferson was great with the turn of words. But his actions often say as much about what he really believed.

     

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    Anonymous Coward, Feb 22nd, 2008 @ 9:26am

    Of course it isn't always for monitary gains, Jonas Salk refused to patent the Polio Vaccine because he believed that it belonged to everyone.

    Of course, things like that can be done today, but not everyone is motivated like that.

     

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    mjr1007, Feb 22nd, 2008 @ 10:01am

    Not so thrilled

    Mike as usual you posting are superficial and intellectually dishonest. Somehow you completely ignored Intel being sued by WARF

    http://www.warf.org/news/news.jsp?news_id=221

    Here is just the latest case of a non patent troll trying "and failing to receive some benefit from it's work.

    Remember the intermittent windshield wiper?

    http://en.wikipedia.org/wiki/Robert_Kearns

    It's intellectually dishonest to rail against patent trolls and not tell the other side!

    Having an argument of whether a monopoly on ideas and for how long is an incredibly superficial take on patents.

    You missed one of Jefferson's contemporaries quotes

    "Monopoly is a great enemy to good management."

    A. Smith, "A Wealth of Nations".

    Having a patent system which grants monopolies is a bad idea. It would be ridiculous to then say all possible patent systems are bad.

    The historical context is that the total number of patents and the number need to produce a product were much low then today. Which is why such a bad idea didn't destroy the industrial revolution.

    Today the whole monopoly idea is just unworkable. A better idea would be to allow any manufacturer to license any and all patents for a percentage of the cost of the product, say 10% as an example.

    Let an arbitration board decide which patents get what percentages, so the manufacturers don't get held up.

    Simple clean and effective. Of course not a single word about this or any other type of alternative.

    Mike if you've been studying this for ten years and you are still on the monopoly or no patent issue it's really sad!

    The key here is what will encourage the "promotion of progress of science and useful arts".

    It certainly isn't what gives companies the most prophet or even what give consumers the most products.

    Of course many of you loyal readers are no better, like you they have an ax to grind and substitute opinion for facts.

    Anthony of "You can't be serious" fame writes

    "From the tone of this article, it sounds like you (author) are implying that the benefit of Copyrights and Patents are outweighed by the drawbacks. I'm sorry, but that is simply a preposterous statement. Not many pundits would argue that the U.S. IP legal system (or any other system for that matter) is flawless, myself included. However, the notion that we are better off without it is plainly ignorant. Without the patent system, here is what the United States would be:
    1. Still creeping out of the industrial revolution"

    Anthony the only thing that can be said here is that you have a high degree of freedom from reality.

    Have you ever heard of Samuel Slater?

    http://en.wikipedia.org/wiki/Samuel_Slater

    The early US was what today would be called a pirate nation. If it wasn't for piracy in the US we would still be getting all of our textiles from Britain8-). It is hard to imagine how someone could be so uninfluenced by the facts.

    Matt Fen of "Be nice everyone" fame wrote

    "Patents and IP are a good thing for the country and individuals. I have a patent. I am looking at starting a business around it. That business will take much capital. If I am going to pour my money or someone else's into the endeavor it clearly matters that I have exclusive control over the idea. If not, where is the incentive to risk treasure? This is fundamental to the success of Capitalism, and why other systems that may look good on paper fail. I am not a big corporation, but perhaps a good idea and 20 years of growing the idea leads to many jobs and in my products case, better health for consumers."

    If this were true for all people, not just you, then there would be no generic drug industry.

     

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      Matt Fen, Feb 22nd, 2008 @ 10:40am

      Re: Not so thrilled

      If this were true for all people, not just you, then there would be no generic drug industry.

      Actually this a good example of how the system works well for all. The generic drug makers come in after the patent has expired. The original patent holder had x amount of years to recoup their R&D and make a profit which is often substantial(both).
      Recently the drug lobby has been pressuring for extensions. With B Frist and the Republicans out of control, this abuse is less likely.
      It does bring up the question of patents and profit on life saving drugs like for aids. If the public funded research for more drugs and left them in the public domain that would help many more people. But that is not a free market answer, so many won't go for it.
      Besides many Americans have a religiously based prejudice on things associated with science and research.

       

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        mjr1007, Feb 22nd, 2008 @ 11:02am

        Re: Re: Not so thrilled

        Matt Fen responded

        mjr1007 wrote
        "If this were true for all people, not just you, then there would be no generic drug industry."

        Actually this a good example of how the system works well for all. The generic drug makers come in after the patent has expired. The original patent holder had x amount of years to recoup their R&D and make a profit which is often substantial(both).

        mjr1007 responded
        Whether or not generic drugs are a good example of how well the industry works is de-bait-able. What it does show is that clearly there are sectors of the economy which will work with out patents.

        As far as the behavior of the patent holders it's not really clear how many more lifestyle drugs we need to be under patent.

         

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      Anonymous Coward, Feb 22nd, 2008 @ 11:13am

      Re: Not so thrilled

      Well, MJR1007, I think you successfully attacked *everyone* on here: Mike, his loyal readers, and his main detractors. So I'm not really sure what point it is you're trying to make. One thing you do seem to say is that patents don't have to be monopolies, and this I would like to dispute.

      Webster.com (for lack of any better source) gives four definitions of a monopoly: (1) exclusive ownership through legal privilege, command of supply, or concerted action, (2) exclusive possession or control, (3) a commodity controlled by one party, (4) one that has a monopoly. Now, (3) and (4) would refer to the patented item and the patent holder respectively, but I think it's fairly clear that a patent grants exclusive ownership through legal priviledge. I imagine further demonstration that patent is, by definition, monopoly.

      Now, Mike ISN'T saying toss the whole thing; that's one solution, a solution he seems to like, but he's also noted that simple making the TERM of the patent more reasonable (5 years instead of 20) would go a LONG way toward fixing things. The system you present, where a board manages to patents, collects fees, and distributes proceeds at whim, seems like a sort of corporate socialism, not to mention ripe for corruption. In any case, it goes against the notion of a Free Market.

       

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        mjr1007, Feb 22nd, 2008 @ 11:50am

        Re: Re: Not so thrilled

        an AC wrote:

        Well, MJR1007, I think you successfully attacked *everyone* on here: Mike, his loyal readers, and his main detractors. So I'm not really sure what point it is you're trying to make.

        mjr1007 responded
        Just trying to shine sum much needed light on a subject that is critical to our future. If you think the criticism is wrong then by all means point out the flaws, preferably by citing sources rather then just stating your opinion as fact.

        an AC wrote:

        I think it's fairly clear that a patent grants exclusive ownership through legal privilege.

        That is of course how patents are defined today. Hopefully you are not so shortsighted as to believe it is the only possible patent system.

        Which is why I through out my favorite suggest, but certainly not the only possible system.

        An AC further wrote:
        The system you present, where a board manages to patents, collects fees, and distributes proceeds at whim, seems like a sort of corporate socialism, not to mention ripe for corruption. In any case, it goes against the notion of a Free Market.

        mjr1007 responded
        Please explain the corporate socialism comment. Are you assume patents are only held by corporations or that somehow by allowing them to produce goods and services without being sued is socialism.

        Monopolies are the antithesis of the free market by eliminating them it strengthens the free market.

         

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    Anonymous Coward, Feb 22nd, 2008 @ 10:29am

    You say that there isn't competition to products with a 20 year patent, but that isn't true. Pfizer sells Lipitor and has a patent on it, but it still faces competition. From other drugs, other ways to treat the condition. I am sure the iPhone is covered under patent, would you say that there is no competition to it?

    Products that require long research times would be hurt by a 5 year patent, because the patent would expire before the product hit the market.

    By talking about the benefits of a 5 year patent would be greater, I think you ignore the fact that the 20 year patent is what can generate and ignite the process to begin with. If someone chooses not to bring something to market because of real perceived competitions that would happen without a patent, then there is a loss. Can that be measured? Nope. We don't know what could have or should have happened, but we can't know.

    It is easy to look at the past and say "well, this period didn't have patents and look at everything that was created, but we don't know what didn't get created because of the lack of patents. We also can not know what isn't being created today because of patents. We can gry to guess, but that is pretty much all it is, a guess.

     

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      Anonymous Coward, Feb 22nd, 2008 @ 11:21am

      Re:

      Twenty years ago it was 1988. Tell me, what was being developed then that's just now hitting the maket? Or, to be concervative, 15 years ago it was 1993; what was being developed then that is just hitting the market now?

      Now, 5 years ago it was 2003. I think it's at least reasonable to imagine that some things that are on the market now were only just being developed then; I'm at a lack for any examples, myself.

      Patents should be incentive for you to create, but they ought not be guarantees for you to succeed.

       

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    Anthony, Feb 22nd, 2008 @ 11:44am

    Mike -

    The research you point out is as biased as the people on this blog. There is plenty of research that wholly contradicts your citations (I'm sorry I don't have any footnotes handy). You cannot compare the U.S. to Switzerland or the Netherlands - you just can't use base those countries' economies as a model for ours. The U.S. has 50 states, with 50 different sets of laws (state, not federal, obviously) that effect business, wealth, and everything in between. The U.S. is involved in 1000x as much global commerce as those countries, and as a whole, has produced so many more technical innovations it's impossible to count.

    I'd also like to point out that there isn't a single reader of your blog that would spent countless hours, maybe years, and thousands, maybe millions of dollars developing groundbreaking technology, and NOT want the benefit of a patent. Hypocrisy is looming large on this post to say the least. (and please, leave your "open-source" arguments at home).

    All of that said, I don't think that thus far you've been misleading or unfair - I just hope that you don't go down that road throughout this series of posts. Obviously your "fan base" is just a tad biased, and I'd venture a guess that most of them haven't received any legal training or been exposed to counter-arguments in favor of our system.

    Other notes:
    Someone countered my foreign infringement/piracy argument by pointing out that those economies are booming due to the fact that widespread piracy exists. There are at least two reasons why this argument is flawed. First, real socio-economic progress comes from innovation, not just commerce. Those nations are not innovating; those nations are allowing other people/corporations to spend millions on R&D and then taking the technology without an iota of effort or any real socio-economic progress. That doesn't benefit anyone; in fact, it makes things worse and creates more poverty and unemployment. Second, ALL of those countries have a Patent Office and laws prohibiting infringement and piracy! The problem is that those countries don't enforce anything. Honestly, would you trade our economy for theirs? The poverty rate in those countries is disgusting.

    "Mike makes a convincing argument that IP monopoly no longer "promote the Progress of Science and useful Arts," it promotes the rich at the expense of the poor. We are to assume that Progress of Science means improving the lives of the poor, not continuing to line the pockets of filthy rich. How do you define the Progress of Science? Tell me if you think the Progress of Science mean creating more debt for the poor."

    This argument is bogus. Promoting the progress of science in this nation (through the patent system) has produced one of the highest standard-of-living rates in the world. The gap between rich and poor is hundreds of times greater in every "infringing nation" than in the U.S. Honestly, how many poor people do you know are affected by the patent system?

    Lastly - why do people keep brining up the United States' infringement of foreign patents? Perhaps the readers of this blog don't realize that patent protection is limited by national jurisdiction. How many of those patents that the U.S. supposedly infringed were registered with the USPTO? Right, none.

    We could argue whether the USPTO should have ever been created until we're blue in the face. The fact is, however, it does exist, and if it were to cease to exist (or be reduced in a significant fashion) our economy would crumble, unemployment would skyrocket to unimaginable levels (due primarily to foreign labor and corporate bankruptcy), and yes, innovation amongst our citizens would certainly reach an all time low. No American wins if you eliminate the patent system; not the rich, poor, or anyone in between.

     

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      Anonymous Coward, Feb 22nd, 2008 @ 11:55am

      Re:

      I don't think anyone here is trying to argue that creators don't want monopoly protection. The point, though, is that what the creators want, what's good for the economy, and what's fair to consumers aren't always the same thing. As noted elsewhere, patents and copyrights should be incentives to innovate, but they ought not be guarantees of success.

      It's also telling that, as Mike points out above, Venture Capitalists seem to be tending away from patents, or at least toward unpatented ventures.

      And, since you're quick to accuse Techdirt readers of not having legal training, I'm curious as to what your own credentials are.

       

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      DanC, Feb 22nd, 2008 @ 12:23pm

      Re:

      "Lastly - why do people keep brining up the United States' infringement of foreign patents?"

      They were brought up to counter your unfounded and ridiculous hypothetical history argument. You stated that our advancement to a world power would have been severely hampered without IP protection, when it was the infringement of foreign IP that aided the US to advance in the first place.

      "There is plenty of research that wholly contradicts your citations (I'm sorry I don't have any footnotes handy)"

      Funny how often that happens... The "I know you're wrong, but I've misplaced the evidence" counterpoint doesn't work, so why bother making it? You can argue what you 'know' all day long but it doesn't mean anything if you can't back it up.

      "if it were to cease to exist (or be reduced in a significant fashion) our economy would crumble, ..."

      The sky would fall, the earth would open, and civilization would be swallowed whole. I have studied this thoroughly and would present my volumes of evidence, relevant scientific studies, and a homeless guy named Larry that agrees with me, but instead I'll rely on absolutely nothing and hope you go along with it.[end sarcasm]

      Seriously, you are calling arguments that have quite a bit more thought behind them than yours "flawed", while presenting nothing to back up your "doom and gloom" economic prophecies.

      "Hypocrisy is looming large on this post to say the least."

      I'd like to point out that attacking other's arguments as weak and flawed while making baseless predictions with no proof is just a tad hypocritical itself.

      "Obviously your "fan base" is just a tad biased, and I'd venture a guess that most of them haven't received any legal training or been exposed to counter-arguments in favor of our system."

      If these are your counter-arguments, I'd venture that you don't have the legal training either. Personally, I'm biased against unfounded claims and poor arguments, which is one of the reasons Mike's points usually make sense. He actually provides some evidence and rational thought in his arguments, as opposed to more than a few of the counter-arguments that typically wind up being "you're wrong" rants.

       

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      Mike (profile), Feb 22nd, 2008 @ 1:49pm

      Re:


      The research you point out is as biased as the people on this blog


      The research I pointed to was all peer reviewed research by respected economists. I'm curious as to why you would claim it was biased? Do you have any evidence for that? I'd actually note that most of it is very straightforward, factually presented evidence, not supporting one position or another. That's certainly true of Eric Schiff's work. He doesn't take a stand on what's better. He just presents the evidence (which clearly contradicted your unsourced claim).

      You cannot compare the U.S. to Switzerland or the Netherlands - you just can't use base those countries' economies as a model for ours.

      Why not? You claimed that without patents innovation would dry up. There are significant datapoints suggesting that's not true at all. In fact, I haven't yet seen evidence of someplace where removing patents hurt innovation.

      The U.S. has 50 states, with 50 different sets of laws (state, not federal, obviously) that effect business, wealth, and everything in between.

      I'm not sure what that has to do with anything. If you're saying that there are extenuating circumstances, that would seem to undermine your own argument that removing patents would have hurt the US, as you seem to be saying there are many different factors.

      The U.S. is involved in 1000x as much global commerce as those countries, and as a whole, has produced so many more technical innovations it's impossible to count.


      Again, I'm not sure what that has to do with anything. Yes, there is plenty of innovation in the US. So what? You seem to be confusing correlation with causation. Yet, when you look at the actual peer-reviewed, economic research, there is very little that shows a patent system increases innovation. There have been time-studies in places that had no patent system and implemented one, that showed no noticeable increase in innovation. There have been cross-country studies that compared places at the same time that had different patent systems or no patents vs. patents -- and again, there is no evidence that the patent system encourages innovation. It may help influence what *type* of innovation occurs, but that's a different issue.

      So, please, do not confuse correlation with causation.

      There were many wealthy merchants in the Mercantilist era as well. That didn't mean that mercantilism was the best, most efficient economic system.

      I'd also like to point out that there isn't a single reader of your blog that would spent countless hours, maybe years, and thousands, maybe millions of dollars developing groundbreaking technology, and NOT want the benefit of a patent.

      First of all, that's somewhat meaningless. Again, the mercantilists loved mercantilism. But it was a bad system. And finally getting rid of mercantilism expanded the economic pie GREATLY and allowed many more people to make much bigger profits.

      Besides, we've built some very innovative technology here and purposely chosen not to patent it, so I'm curious as to your claim that "not a single" person here would do that. It's provably false.

      I'd venture a guess that most of them haven't received any legal training or been exposed to counter-arguments in favor of our system

      I'm curious why you would think legal training is the most important thing here. I'd argue that economic training is much more important. Legal training may help you understand the laws, but not necessarily if they're good or bad for the economy.

      First, real socio-economic progress comes from innovation, not just commerce. Those nations are not innovating; those nations are allowing other people/corporations to spend millions on R&D and then taking the technology without an iota of effort or any real socio-economic progress.

      Really? That's a myth. Have you looked at some of the innovations coming out of those economies? I think you'd be surprised.

      That doesn't benefit anyone; in fact, it makes things worse and creates more poverty and unemployment.

      Would you care to provide some evidence of that? I've already pointed to the Levine/Boldrin research that actually showed the opposite. In industries where patent protection did not exist, there tended to be greater employment among a greater number of firms.

      Honestly, would you trade our economy for theirs? The poverty rate in those countries is disgusting.

      Again with the confusion of correlation and causation. Many of the economies you discuss are now growing *much* faster than our own. Watch the trend lines. Yes, they're starting out from a position of poverty, but they're growing and innovating and not getting bogged down in IP wars to do so.

      Lastly - why do people keep brining up the United States' infringement of foreign patents?

      Because it shows how ignoring patents can help BUILD up economic greatness, which is what you claimed could not happen.

      We could argue whether the USPTO should have ever been created until we're blue in the face. The fact is, however, it does exist, and if it were to cease to exist (or be reduced in a significant fashion) our economy would crumble, unemployment would skyrocket to unimaginable levels (due primarily to foreign labor and corporate bankruptcy), and yes, innovation amongst our citizens would certainly reach an all time low. No American wins if you eliminate the patent system; not the rich, poor, or anyone in between.

      Again you make this conjecture with absolutely zero to back it up other than your own confusion about correlation and causation. I have pointed you to an awful lot of evidence which suggests none of these thing would likely happen, as they haven't happened in other nations. So on what do you base your claims?

       

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    Anonymous Coward, Feb 22nd, 2008 @ 12:23pm

    How is a patent a guarantee of success? A patent (or copyright) on crap won't get you much, just the opportunity. Some will say that the opportunity that a patent provides is what drives innovation, what drives creation.

    If someone can just copy what I create quickly, then I have no first mover advantage (or very little) so then it all comes down to marketing (and hey, I am a marketing guy, so I don't mind.) If this happens time and time again, do I keep it up or do I just go do something else? Do I invest my resources elsewhere? I think so.

    Hell, in some areas, its not even about patents. Cancer researchers don't share information with each other as much as they should because they want to be the first one published. They are not worried about patents, they are worried about recognition. How do you get around that? Obviously by not sharing, the whole doesn't advance as quickly, but that is what is happening.

     

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      DanC, Feb 22nd, 2008 @ 12:34pm

      Re:

      "They are not worried about patents, they are worried about recognition."

      Actually more than a few of them are worried about patents due to the tremendous amount of money to be made off the drugs that treat cancer. Recognition is important, sure, but the main impetus is money.

       

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    Anonymous Coward, Feb 22nd, 2008 @ 12:40pm

    DanC, JAMA in 2002 wrote that the biggest reason for not working with others was the desire to protect the ability of junior scientists or themselves to publish, although the intent to commercialize the work, and industry agreements that prohibit giving materials to a third party were also issues.

     

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      DanC, Feb 22nd, 2008 @ 1:26pm

      Re:

      Fair enough, I may be wrong concerning the main concern of the researchers (may, because the study had quite a few limitations on it). I just wanted to point out that there are commercial interests involved in the research, so there is in fact concern over patents in the industry.

      Here's a link to the JAMA study if anyone cares.

       

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    Anonymous Coward, Feb 22nd, 2008 @ 1:32pm

    Dan, I agree, patents do play a part, but getting rid of patents wouldn't solve the problem either.

     

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      DanC, Feb 22nd, 2008 @ 1:49pm

      Re:

      "but getting rid of patents wouldn't solve the problem either."

      In that case, the problem isn't patents but a desire for recognition and publishing rights. Taking the studies results as a given, removing patents from the equation would not solve the problem. However, the real question is whether or not removing patent concerns would help alleviate the problem. Based on the analysis in the study, it seems to me it would lead to an increase of data sharing.

       

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    Nick (profile), Feb 22nd, 2008 @ 2:14pm

    How the developing US violated IP to become a powe

    As mentioned in the comments earlier, Hollywood was born of the film maker William Fox (now known as Fox, the 4th TV network) not wanting to pay royalties on the camera/film process invented by Thomas Edison (source).

    Benjamin Franklin pirated Charles Dickens without licensing or payment of royalties (source) and others in the US probably also re-published books without compensation of the authors until the Bern Convention.

    Cable TV was born by the unauthorized re-transmitting antenna signals (source).

    Read Free Culture's chapter on Piracy for more info. These are just a few examples. There are more out there. Feel free to add them in these comments.

     

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    Nick (profile), Feb 22nd, 2008 @ 3:26pm

    how IP monopoly makes the poor poorer

    Promoting the progress of science in this nation (through the patent system) has produced one of the highest standard-of-living rates in the world.

    Yes, for the US (and other super powers) and at the expense of other countries who's governments agreed making payments to US rights holders via WIPO.

    The gap between rich and poor is hundreds of times greater in every "infringing nation" than in the U.S. Honestly, how many poor people do you know are affected by the patent system?

    All the more reason for them too keep infringing, for their own survival, so they are not indebted to any colonialists.

    I don't know any personally being a well-off person living in the US, but I know that Brazilians took to the streets in support of open source software since it is free, and will not drain their financial resources needlessly to someone like Microsoft (for the powering of computers for government infrastructures).

    Also in South America, water rights were corporateized (in the same spirit as a patent: monopoly), making it illegal for people to collect rain water.

    Right here in the US, Monsanto has sued poor farmers using the decentest of seeds that had patented.

    In countries that ignore IP, the poor have the opportunity to save enough money to by a computer, and internet connection, and a CD/DVD recorder or a printer to sell pirated CDs, DVDs and books on the streets. Do you think the poor give a f*** about IP of a super power when they just want something to eat?

    There is even a Creative Commons licenses that allows for this legally, call the Developing Nations License that will allow my IP to help poor people in impoverished countries by selling physical copies of my digital, infinitely available IP.

     

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      mjr1007, Feb 22nd, 2008 @ 4:30pm

      Re: how IP monopoly makes the poor poorer

      This seems like a really bizarre post. Aside from some AIDS drug issues it seems that there is little that poor people in poorer countries would consider a necessity that is still under patent.

      All they have to do is live as we in the West did 17 years ago. I suspect they might even be able to buy some of the equipment used to manufacture some of the older tech.

      There is some competition for a low cost mobile handset but this is hardly a necessity.

      So this just seems like a red herring.

       

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    Nick (profile), Feb 22nd, 2008 @ 5:18pm

    I can see nothing more important than sustainability via your own means to obtain food and water without having to deal with laws meant to capitalize on ones exclusively means of self-reliance.

     

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      mjr100, Feb 23rd, 2008 @ 9:14am

      Re:

       

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      mjr1007, Feb 23rd, 2008 @ 9:15am

      Re:

      Nick,

      You would have to give some examples for this to be a credible argument

       

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        Nick (profile), Feb 23rd, 2008 @ 1:19pm

        re: mjr1007, give some examples

        When people are given the choice of convenience or sustainability, they chose convenience. Mercantilists/monopolists have figured out how subvert Maslow's Hierarchy of Needs (physiological needs are the most basic on the pyramid, at the bottom). This is a dangerous prospect. If you don't believe me, look at the state of the world today. The powerful have sold that idea to us that it is better to buy a all of our fish than to learn to catch some fish, buy others Or perhaps the ability to choose has just been stolen out from under people by the powerful.

        While monopolistsic capitalism has benefits for the few, laissez-faire capitalism would balance out the marketplace of ideas.

        Ideas are worthless and one should not be able to own them. You have to demonstrate that you can or to actually execute on them (make something, make something happen), and that makes you worth something to someone somewhere.

        Maybe this set of values has a name already. If it does, let me know what it is.

         

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          mjr1007, Feb 24th, 2008 @ 6:35pm

          Re: re: mjr1007, give some examples

          Wow, this is really off topic, which is how the patent system hurts the poor.

          The point you raised here is "does the division of labor hurt almost everyone, both rich and poor"?

          Personally I make a damn poor farmer but a pretty good computer geek. Since the whole computer geek thing pays well my time is best spent there. Besides I had plenty of digging in the dirt as a kid, would not be looking to do it again.

          Not everyone needs to fish for themselves, I'm allergic to fish anyway 8-).

          There are some interesting trends with the whole fab@home movement where it is possible that some day manufacturing may no longer be a viable job but it seems like it's still a few years off.

          Now as far as the problems with monopolistic capitalism being corrected by laissez-faire capitalism, I think that's just completely naive. Without regulations in the market laissez-faire capitalism becomes monopolistic capitalism through consolidation and collusion.

          Just look at Oil (OPEC, Standard Oil trust ...) diamonds (Central Selling Organization, CSO) and others.

          There is certainly a lot wrong with the world that needs to be fixed but before running off at the keyboard, you might want to actually look at history to see what has happened in the past before charging off and repeating the same mistakes again.

           

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    pp, Feb 23rd, 2008 @ 8:05pm

    the centre never seems to hold

    Matt Fen on Feb 21st, 2008 @ 5:46pm
    "I have a patent. I am looking at starting a business around it. That business will take much capital. If I am going to pour my money or someone else's into the endeavor it clearly matters that I have exclusive control over the idea. "

    Add if you try and start that business only to be hit by a hugely expensive patent violation suit from an existing wealthy corporation, on the basis of a very dodgy patent that vaguely relates to your idea, they once took out with a view to supressing competitors, a patent that probably isn't valid but which you can't afford to fight, would you still think patents were always a good thing?

    I don't know what the author believes (unlike the earler poster who seems to be able to mind-read and prefers to argue with positions nobody has actually espoused) but to me the point is that while some intellectual property law is a good thing, the difficulty is that it appears to have a demonic tendency to grow out of control, beyond its original purpose.

     

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      DanC, Feb 24th, 2008 @ 1:18pm

      Re: the centre never seems to hold

      "Add if you try and start that business only to be hit by a hugely expensive patent violation suit from an existing wealthy corporation,"

      Actually, they don't usually hit you at the start. They wait until you have a customer base and/or are making money, and then they sue.

      The hope is that you'll be financially screwed so that you're open to a buy out, and then they can inherit your customer base. This way they can potentially get money from the lawsuit, save themselves development time, and have a pre-existing pool of customers.

      That's why I'm kind of surprised that we didn't hear anything about a buyout when Vonage was sued by Verizon and every other telco under the sun with a generic patent on voip.

       

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      Wesley Parish, Mar 7th, 2008 @ 2:25am

      Re: the centre never seems to hold

      Add if you try and start that business only to be hit by a hugely expensive patent violation suit from an existing wealthy corporation, on the basis of a very dodgy patent that vaguely relates to your idea, they once took out with a view to supressing competitors, a patent that probably isn't valid but which you can't afford to fight, would you still think patents were always a good thing?

      I had an idea once in 1992-93, for a unique style of guitar pickup, using individual pickup elements for each string and a six-by-six array of the pickup elements, controlled by a CMOS chip. Some friends told me to get a patent for it, so I took a look at the whole patenting business.

      Point One: It's expensive. Hugely expensive for someone just considering starting out.

      Point Two: It's protection, of a sort, but maintaining that protection, by the taking on of all comers, is hugely expensive.

      Point Three: Potential competitors are usually well-established, and usually well-heeled as well. There is an established procedure amongst certain styles of company, whereby they take an item already patented by their competitor, change a few minor details, and patent that "innovation". Patent attorneys are thereby made ecstatic, and progress on the topic in hand is reduced to petty infighting over whether or not the new patent infringes the old patent, and how many angels can dance on the patent-office pinhead who granted said patent/s.

      Point Four: I concluded that the entire patent issue was permanently biased against the individual wishing to develop anything, in favour of the huge companies who didn't wish to develop anything, but who wished to develop and maintain monopolies. Consequently I never made any progress on developing my invention; consequently there are some tonal colours you'll never get to hear from your average guitarist.

      I'll leave it up to people to decide whether or not that is a good thing - I would like to think Jimmi Hendrix would have gladly put up money for the sort of tonal control I knew I could develop.

       

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    examiner#6k (profile), Feb 24th, 2008 @ 2:03pm

    "Honestly, how many poor people do you know are affected by the patent system?"

    All of them. Are you a poor person? Then you too. Can anyone in the US, poor, or rich, make anything I grant a patent for? No.

    "Aside from some AIDS drug issues it seems that there is little that poor people in poorer countries would consider a necessity that is still under patent."

    Is that right? Maybe processes to make everything you have in your mansion? Maybe all of the things you have in your mansion?


    On a related note, just why do you pro patent folks believe that poor folk (or middle class folk) ARE POOR? Is it because they went out and did an honest days work for that last billion they made? Of course not, they keep making themselves richer based on legal systems of property, of which, one form is the patent system in the US. Legal systems of property are the only way that I can even think of at the moment that would allow someone to be as wealthy as the real rich are.

    BTW Mike, good going with your postings, I can't wait to see the rest. I'm sure there's plenty of arguments for and against, but it's a hard sell to me that the "for"s have it by a healthy majority.

    Examiner#6k

     

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    M. Slonecker, Feb 25th, 2008 @ 7:26pm

    The letter you quote was written by Jefferson to Isaac McPherson on August 13, 1813...24 years after enactment of the Constitution. Thus, it can hardly be said that it represents an exchange of views between he and Madison leading to the crafting of Article 1, Section 8, Clause 8.

     

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      Mike (profile), Feb 25th, 2008 @ 7:31pm

      Re:

      The letter you quote was written by Jefferson to Isaac McPherson on August 13, 1813...24 years after enactment of the Constitution. Thus, it can hardly be said that it represents an exchange of views between he and Madison leading to the crafting of Article 1, Section 8, Clause 8.

      Indeed. I never said the quote was from their discussion. I just said it represented his views on the subject.

      The fact that Madison and Jefferson discussed the matter separately was a different issue. It is a historical fact that Jefferson and Madison debated the clause quite a bit. Are you suggesting they did not?

       

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    M. Slonecker, Feb 25th, 2008 @ 8:14pm

    I am sure that the two of them, as well as all other delegates to the Constitutional Convention, spoke among themselves on the issue. However, a quote from Jefferson in 1813 and one from Madison circa 1820 are interesting, but do not necessarily reflect that of all the "Founding Fathers".

    For a comprehensive treatment of the issue it is instructive to read the published works of Professor Adam Mossoff. He is one of the very few in legal academia who have actually researched the historical record.

     

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      Mike (profile), Feb 26th, 2008 @ 6:04pm

      Re:

      I am sure that the two of them, as well as all other delegates to the Constitutional Convention, spoke among themselves on the issue.

      It's pretty much established that Madison and Jefferson were the two main authors of this part...

      However, a quote from Jefferson in 1813 and one from Madison circa 1820 are interesting, but do not necessarily reflect that of all the "Founding Fathers".

      Would you rather the direct discussion they had at the time?

      http://onlinebooks.library.upenn.edu/webbin/bparchive?year=1999&post=1999-02-11$2

      Th at includes such quotes as Jefferson saying he'd rather do without IP altogether:

      "the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression."

       

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    Al Black, Feb 27th, 2008 @ 7:37am

    Patents and copyrights

    Twenty years or so ago I read a wonderful little fantasy short story (I am looking for a copy of the book) where the author postulated a time where no new music and literature was being created because all the melodies, rhythms and basic ideas had been exhausted and through research and computers everything could be linked to some copyright. Essentially allowing creativity to be legally shut down. Thought was being legally squelched and controlled by big business & lawyers.

    For thousands of years institutions of learning were about disseminating knowledge and encouraging thought (exceptions exist - Inquisition, etc...), but in general knowlege and learning was shared - not hoarded. Now we have universities with large research foundations that have taken on lives of their own and control and profit from research in the billions if not trillions of dollars.

    Their concern is not about education and dissemination of knowledge; rather they want control and money and now they are joining with large corporations to expand each other's control thought and knowlege.

    It is unethical at best and criminal in some parts of the world to allow this. The cost of products and procedures are inflated beyond the reach of most of the world's people simply so the top 2 or 3 percent may buy vacation homes on artificial islands of Dubai.

    Being paid for hard work, initiative and inovation is what the present economic system is supposedly promoting; however, what has Bill Gates done to be worth billions and to increase his wealth by millions each week. No logical argument can justify this. The facts are that the gap between the top 2-3% and the bottom 20% is increasing and the suffering and world-wide disruption is more evident.

    The legal sequestering of the world's gifts and riches must be reversed not increased. There are only so many Dubai's and gated communities. If we, as supposedly a civil humane society, do not stop, reflect, consult and enact voluntary change a revolution or collapse of greater proportions then already exists will be engendered.

    I am not a communist or a capitalist; I am just a logical and fairminded human being that believes that you may whipped your pack animal only so long before it will no longer serve you and may even strike back.

    We must create, nay demand a world economic system that serves humanity not money. We must end a system that worships and serves the concepts profits, dividends and stock indexes & which nutures the extremes of rich and poor.

    Al Black, Indianapolis, IN

    "The world's equilibrium has been upset..." Baha'u'llah

     

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    Aki Korhonen, Mar 6th, 2008 @ 5:17pm

    Well said

    I have been in the computer software business for effectively my entire life, and intellectual property is close to my heart (so to say), both from the perspective of ownership and freedom of it. Having a level playing field for everyone, including small companies and individuals is very important in order to maintain the steady stream of innovations that we take for granted, and to avoid the emergence of another Bell company that stifles an entire industry for generations.

    For example, there would be no PC industry if the bar for "ownership" of "ideas" is too high. If the "idea" behind the PC, i.e. the particular combination of features had somehow been considered intellectual property, then it would never have been "cloned" and the IBM PC would just be a distant memory, sort of like the PS/2 is today.

    Similarly if the particular combination of features behind the CP/M operating system had been somehow protected, then we might still be using some sort of CP/M derivative for an OS on our Apple XII's, for which a small Seattle-based software company would offer what they call Microsoft Basic.

    It's ironic that the company that arguably benefited most from the relative freedom of ideas and innovations in the digital age seems to be so keen to slam the door shut behind itself. Perhaps it's a reflection of them knowing what their success was based on, and their desire to avoid someone else doing the same to them.

     

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    Eduardas Tamošauskas, Mar 6th, 2008 @ 11:42pm

    parallel -> linear

    To my eyes, there is certain problem in patenting of trying to turn natural parallel and mutual development of minds, their capabilities into linear run to be first to register. Thus, unnatural issues become most important of "who was really first", "what exactly was it, he came with", "what is the justification for mutual exclusion in development".

    It is seen from article, that Writing and Discovery were thought worth being protected. Not derived things. If one claims, he discovered, or he wrote - he should be set back by appropriate proofs. What should be not protected - rent seeking by privatisation of piece of natural development of mankind (be it within bounds of nation).

     

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    Link, Mar 7th, 2008 @ 1:06am

    much shorter terms better

    With the alleged increased pace of progress one would have thought that the monopoly durations should get _shorter_ but not longer.

    If copyrights only lasted 7 years, Microsoft would have needed to make Windows Vista significantly better than Windows 2000. If Microsoft didn't want to play by that rules, I'm sure Apple and others wouldn't have minded.

    Long duration copyrights and patents reward people with only one good idea/work in their lifetime, and keep them in that field. Or the companies that enslave them.

    In my opinion, if you can only come up with one good idea/work in a particular field, you should be holding a job in some other field, rather than rely on that one good idea/work to feed you for the rest of your life.

    Trademarks are what should be protected. You should not be able to pretend you are Coca Cola or Microsoft or Intel and release a copy of their product and make it look like it came from them. That's lying.

    Plagiarism should be prevented- you should not be able to claim that you were the original creator of something when you aren't. That's lying too.

     

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    Chris Coles, Mar 7th, 2008 @ 1:24am

    The lost role of capital in intellectual property

    I come out strongly against the original theme of the article. I am an inventor, no, not some multi millionaire, but a very poor one. The reason why this debate has arisen is that most of you would never get anywhere near any sort of ownership of IP for the simple reason, it makes no sense today as you cannot get at the capital needed to develop your ideas. So, instead of correcting the problem of the lack of capital, you turn on the system and try and break it. A sort of "they won't let me develop my ideas, so the IP system is wrong".

    We need to bring a little reality to bear. How many of you, who so decry the IP system, are named and listed in your own nation's Science Reference Library as an owner of any form of patent? Again, how many of you are listed in your nations National Library as a writer of a book? And even better, how many of you are similarly named in at least one other nations science Reference Library as an inventor or author with a named and numbered issued patent or an ISBN number to your name? I will assume that most if not all the respondents to this debate have at the least some form of degree from some sort of an educational establishment. Now go and count, yes, an easy job, how many of you are so listed. You will discover that compared to the numbers that have received a degree, there are very few named listed inventors that are completely independent to big business or academia. I am one of them.

    I am British and have in the past been granted patents in the UK. I currently own three US patents and one Japanese patent. I have never once received any capital input to any one of those patents. The capital is simply not available.

    The problem is not the IP system, it is that the large company and government owners of IP have between them created a system for capitalisation of the new patents which very effectively eliminates the competitor through restriction to access to the capital we need to develop our ideas.

    With the greatest of respects, the problem is not IP, it is a lack of access to the capital to develop the competitors to the existing large corporations. I will bet my bottom dollar that, given access to capital to compete, most of the respondents would shut up and go out to compete. And, the moment they did that, they would be discovered filing for a patent or an ISBN number.

     

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      Mike (profile), Mar 7th, 2008 @ 1:31am

      Re: The lost role of capital in intellectual prope

      The reason why this debate has arisen is that most of you would never get anywhere near any sort of ownership of IP for the simple reason, it makes no sense today as you cannot get at the capital needed to develop your ideas.

      Say what? You do realize that I, as the original writer of the piece, run a company that has raised capital. The capital markets today are much more efficient than ever before in the past. It is much easier to raise sufficient capital to build a business today than at any time in the past -- and it has nothing to do with IP rights.

      In fact, we're seeing more and more venture capitalist shying away from IP rights, recognizing that it's often more of a distraction from innovating towards the market than an aid.

      With the greatest of respects, the problem is not IP, it is a lack of access to the capital to develop the competitors to the existing large corporations. I will bet my bottom dollar that, given access to capital to compete, most of the respondents would shut up and go out to compete. And, the moment they did that, they would be discovered filing for a patent or an ISBN number.

      You are wrong. I have raised plenty of capital. I am competing with much larger firms. And despite the urgings of our lawyers, I have chosen not to file any patents, because it is not necessary. I will compete on the basis of our product, not by holding back the market from innovating. If someone else can take our ideas and build a better version of our mousetrap, then that just gives us more reason to keep innovating and do something even better.

       

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    Charles Carter, Mar 7th, 2008 @ 7:06am

    Commercial advantage

    Ideas are, and should be, free, but that's not the answer to the question of IP.

    The question is, how do we protect an individual's time and effort in developing something useful to society?

    If I spend X hours and Y money developing an invention, why should someone who has spent 0 hours and 0 money derive the benefit? If I am paid for my labor, as an employee for example, I have been compensated. However, if I derive my livelihood from development and someone takes the commercial advantage, he has robbed me just as surely as he robbed me at gunpoint.

    If I am a composer and I write music for a living, am I not entitled to the fruits of my labor? If I am an author, shouldn't I get a royalty in return for my efforts? One reason that we have 'starving artists' is because their work simply isn't marketable. We shouldn't add to this that others diminish the market value of their work by giving it away for free. I say this (full disclosure) as a writer who discovered that photocopies of my work were being sold on eBay and that the proceeds were being kept by the photocopier. This is illegal, immoral, and simply wrong.

    Yes, there needs to be a balance, and one factor in the balance should be the fair compensation of those who create value by their labor.

     

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    Michael Mischnick, Mar 7th, 2008 @ 9:40am

    Mischaracterization of Jefferson's Quote

    While I generally agree with your description of the historical foundation of patent protection in America, you slightly mischaracterized Jefferson's position on patents with your quote. Jefferson was a strong proponent of patent protection (he felt they would "encourage men to pursue ideas which may produce utility" by granting an "exclusive right to the profits arising from them."), but the quote you provided shows that he was not in favor of the owning of ideas.

    But, patents do not give anyone ownership of ideas. They merely give the owner a very limited monopoly over a very specific, and often quite limited, application of an idea. In exchange for that, the owner must disclose the idea to the public, so that the public may learn of it, and attempt to improve upon it (or better yet, design around it).

     

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      Mike (profile), Mar 7th, 2008 @ 1:14pm

      Re: Mischaracterization of Jefferson's Quote

      While I generally agree with your description of the historical foundation of patent protection in America, you slightly mischaracterized Jefferson's position on patents with your quote. Jefferson was a strong proponent of patent protection (he felt they would "encourage men to pursue ideas which may produce utility" by granting an "exclusive right to the profits arising from them."), but the quote you provided shows that he was not in favor of the owning of ideas.

      Read Jefferson's writings. He was hardly a "strong proponent." He was quite ambivalent about it, though he did eventually believe the benefits outweighted the downsides.

      But, patents do not give anyone ownership of ideas. They merely give the owner a very limited monopoly over a very specific, and often quite limited, application of an idea. In exchange for that, the owner must disclose the idea to the public, so that the public may learn of it, and attempt to improve upon it (or better yet, design around it).

      Ah, yes, the disclosure myth. That was the original intent, but it is no longer. These days, patent attorneys are taught to write patents as vaguely and broadly as possible. The number of patents you can now use to learn from is small and dwindling. It has become a system for giving ownership to ideas.

      Besides, the whole concept of patents being about disclosure is easily disproved by a simple thought process:

      (1) If you could make more money keeping a product secret, why would you disclose it for a patent? You would keep it a trade secret.

      (2) The only reason why you would disclose it in exchange for a patent is if you knew that the concept was likely to be figured out by others prior to the expiration of the patent.

      In other words, a patent blocks others from coming up with the similar idea -- and any really good idea is kept as a trade secret. Disclosure is no reason to support a patent system.

       

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    BoB, May 9th, 2008 @ 8:02am

    The Caveman what's his Wheel back

    The wheel. There is no patent, no copyright, nothing to protect the money making power the wheel has, YET THE WHEEL SELLS. TIRES sell, what hostages would we be if one entity held the restrictions on producing the wheel.

    Without patent/copyright protections anyone can make the wheel, anyone can sell the wheel, anyone can add to the wheel, and yes even the person who came up with the idea of the wheel.

    When someone can explain to me how placing restrictions such as patent/copyright protections on the wheel could have ever progressed the development of the wheel any faster please attempt to explain.

    Inventions will always happen - the mind of an inventor is not the same mind as a business man. A good inventor invents to invent. I would like to bring to the argument LINUX, Linux is a free OS for computers - in many ways far superior than windows and MAC os's. Most distros were INVENTED for by people without pay or monetary gains. In fact possibility is high it cost them considerable time and money to accomplish. Most linux distros can be modified in anyway. The reward to an inventor is not money it is seeing your idea being used and liked by many, the satisfaction that must bring knowing you had an idea that so many people use in their daily life. The guy who had the light bulb turn on and created the wheel had a grin on his face watching everybody use his wheel – that my friends is a reality.

    It is hard to see the argument and not laugh that patent/copyright laws are tools used to progress the study of science and knowledge. With or without patent/copyright laws knowledge will progress, but the hording of money around the ideas will not exist.

    You know who i'm going to buy a wheel from. The person who makes the best quality wheel in the price range I can afford - who pats me on my back and says pleasure doing business with you.

    Why is the world so head strong on economic progression? progression has to aspects the more apples collect by one the less apples are to be had by all.

     

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    punk, Sep 4th, 2008 @ 3:03pm

    You people need to make a website that is about presidents but is fun helpful and interesting to kids from the fifth grade and up

     

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    Leona May, Jan 28th, 2009 @ 5:29am

    Just Asking

    I'm doing a short oral report on the subject of copyrights, and I would just like to question and clarify: Are there 3 main sides to the copyright conflict, or only 2?

     

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    N, Dec 26th, 2011 @ 2:55pm

    Mike, how much are Intel, GE, IBM, MICRON, Microsoft and the Financial Services Round Table paying you?

    Mike, how much are Intel, GE, IBM, MICRON and Microsoft and the Financial Services Round Table paying you to write this crap?

    First of all, your statement, "copyright and patents was born in the US," I believe this is incorrect.

    http://en.wikipedia.org/wiki/History_of_patent_law

    You might want to 'fact check' before writing stuff.

    Mike and these corporations are obviously a bunch of free loaders interested in living off the innovation, hard work and ingenuity of creative individuals. They would have no problem reaping the benefits of the work of Edison, Bell, and Wright who would then get nothing for their efforts.

    Their thinking will only increase the power of the mega-corporations, encourage trade secrets and send innovation to China and India, further destroying the American economy and way of life.

    Be careful what you wish for...you might just get it.

    Wake up you fools.

    N

     

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    Anonymous Coward, May 3rd, 2012 @ 2:37am

    Would someone please provide links to the sources of the quotes from Jefferson and Madison? Not only is it poor form not to provide them, but it makes it difficult for those doing academic work who would like to refer to materials but need a firm source to site. Thank you.

     

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    April Brown, May 9th, 2012 @ 10:38am

    Innocent Infringers

    I am an Innocent Infringer. I'm being pursued by the Author Linda Ellis of the Dash poem. This viral poem was sent to me in an email by a client. I posted the poem on my website. I was notified it was copyrighted and immediately took the poem down. I am being harassed on almost a daily basis by Linda Ellis demanding payment from me. I refuse to pay. Because I refuse to pay, this woman has called me a liar, thief, and criminal in writing simply because I shared this poem in my blog. She claims her damages for infringement are worth $150,000 per infringement. Yesterday, Linda Ellis bought a google ad with the search for my business name April Brown Char. Auction (April Brown Charity Auction World). The click through goes to comments disparaging me personally and professionally. I've put up a blog with content supplied by dozens of Innocent Infringers. We have decided to challenge the law. You and your followers are invited to submit content and opinions. We need the support as we move forward. http://www.aprilbrown.com/copyright-infringement-the-das/

     

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    Anonymous Coward, Dec 7th, 2012 @ 7:35am

    Who patented the pyramid first?

     

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