1. There are a lot of smart people thinking about the very obvious problems of the system, and they are trying to come up with solutions. That's a good thing, even if there are many (powerful) interests who don't want the system to change at all. You can only deny reality for so long.
2. There are also many ideas for solutions, some of which are quite clever, others of which seem like blunt force attempts to deal with symptoms rather than actual problems. Also, as was raised by some people in the comments, many of the suggestions could have significant unintended consequences that weren't readily considered. This is important -- for as much as I believe that the system needs fixing (and I have my own suggestions for solutions), thinking through the consequences of any change is an important exercise (though always keeping in mind that defenders of the status quo seem to argue any change will destroy the American economy and probably take apple pie and motherhood with it).

• There was some interest in using patent fees as a way that the patent office might be able to fix some of the worst problems without requiring a change in the law. James Bessen pointed out that bad patents are a form of pollution and, as such should be taxed as polluters. Christina Mulligan pushed back against attempts at doing the opposite, as urged by some patent system defenders, noting that "Cheaper patent applications mean more – and lower-quality! – patents. Lowering filing fees will make more people more likely to file patents. But if the marginal difference in patent fees is holding inventors back from filing applications, the patent is probably covering a low-value invention."
  
• Related to this, Brian Love presented some research and a proposal for using higher fees to decimate trolls. Part of his argument is that the data shows that trolls quite frequently become much more active as a patent is close to expiring: "Of all patent suits litigated within the final three years of the asserted patents' term of protection, trolls file more than 70%. Of all companies accused of infringing a patent within three years of its expiration, trolls accuse more than 83%." His suggestion is that shortening the term length of patents would deal with this problem, and would likely hurt only trolls or failing companies that are lashing out at more innovative competitors (he highlights Kodak and Encyclopaedia Britannica). But rather than actually go through the process of shortening patents, he argues just increasing the maintenance fees to keep a patent for the full term. He notes that many other countries already do something like this. The data here was compelling, though the risk is that it would just mean that patent trolls would become more active in earlier years...
  
• Peter Menell picked up on the point that many have raised that patents aren't at all clear in what they cover. So he thinks that we should force patents to be much clearer in what the claims cover. Specifically, he argues for a form-based system where you have a series of check boxes and pull downs in defining a claim to make it clear what you're actually trying to cover. I like the idea that patents should be much more precise over what they claim, but I'm not sure it's realistic to think that a form would (a) do this well or (b) be properly used.
  
• Arti Rai pointed out that the software crowd probably screwed up years ago, by not doing what the bioinformatics world did in claiming that you can't get a patent unless you provide the actual working algorithm. This seems like something of a no-brainer. The USPTO has regularly rejected bioinformatics claims on the basis of a lack of "definiteness" for not supplying the algorithm. There's no reason that the same couldn't be done in software. Of course, that would require the USPTO to actually notice this point...
  
• I thought John Duffy's proposal was one of the most interesting (and, in the past, I've found myself disagreeing with Duffy more often than agreeing with him) in which he argued the most "elegant" solution to the software patent problem that isn't all that far off from my own suggestion: fix the "non-obviousness" standard by noting that multiple parties simultaneously, independently inventing the same thing is a sign of obviousness and should lead to no patents being allowed. Duffy's presentation was the one that set Richard Stallman off for arguing that Stallman's solution was "kludgey" rather than a full solution. On this one, I side with Duffy. Duffy's solution here would likely be a lot more effective that Stallman's because patent lawyers could easily write around Stallman's solution of not allowing patents on "general purpose" computing.
  
• Samson Vermont highlighted that we should take into account social harm (Word doc). That is, he suggests courts should base remedies on the amount of harm on the public rather than on the harm on the patentee. "More specifically, in cases in which the defendant's infringement clearly makes the world better off, the court should deny the patentee both money damages and injunctive relief." More specifically, he argues that if the patent isn't actually being used to put a product on the market (either by the inventor or a licensee), the accused infringer is an independent inventor and is actually putting a product out there and the "costs to find the patentee's version of the invention beforehand were greater than the defendant's costs to invent it on his own" then courts should reject any awards. As he notes, when all three conditions are met, "it is very hard to come up with plausible reasons to believe that the defendant's infringement is a bad thing."

• While it probably does not change US law (with some possible exceptions, especially in the realm of patents), it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled. Supporters of ACTA continue to insist that not only does it not change US law, but that it cannot change US law, since it's an "executive agreement" rather than a treaty (more on that later). The reality, however, is that to be in compliance with this agreement, the US needs to retain certain parts of copyright law that many reformers believe should be changed. At the very least, it ties Congress' hands, if we want to be in compliance with our "international obligations."
  
  An example of this is on the question of inducement theory for copyright law. Within copyright law there is direct infringement (you did the infringement) and indirect or secondary infringement (you had a hand in making someone else infringe). In general we should be wary of secondary liability issues, because they can create chilling effects for new innovations. It's why the Supreme Court allowed the VCR to exist, despite the fact that it enabled infringement. Contributory infringement (in which you're more actively involved) has been illegal, but there has been some question about inducing infringement (i.e., leading or pushing others into infringing). There was an attempt by Congress nearly a decade ago, under the INDUCE Act, to make inducement a violation of copyright law, but it failed to go anywhere in Congress. Of course, the Supreme Court then stepped in with its Grokster decision that made up (pretty much out of thin air) a standard for "inducement" to be a violation of the law.
  
  Normally, if Congress decides the Supreme Court got something wrong, it can pass a law to clarify. However, under the terms of ACTA, countries need to consider inducement a violation of copyright law. There's no way to read this other than to tie Congress' hands on the question of inducement. That's a big issue because we're still sorting through the true impact of considering inducement as against the law. I know it's tough to believe Congress could ever push back on ever more draconian copyright law, but with the SOPA/PIPA backlash, there's at least a sliver of hope that some are aware that these issues impact innovation. Should Congress realize that greater liability through inducement is a mistake, under ACTA, their hands are mostly tied if they want to fix it. That's a problem.


• Beyond just locking in parts of copyright law, ACTA also expands it. First, it takes things that would normally be considered non-commercial file sharing (which is potentially against the law), and turns it into commercial scale criminal infringement. Similarly, it appears to broaden the definitions around inducement/secondary liability to make what had been a civil (between two private parties) issue into criminal aiding and abetting. Basically, there are parts of ACTA that effectively seek to take what would normally be civil infringements, dealt with between two private parties, and allow the entertainment industry to offload the policing to government law enforcement (paid for by tax payers) and leading to a higher likelihood of jail time.


• Copyright law is, by its very nature, a bundle of forces -- some that incentivize good behavior, and some that are bad. There should be no question that copyright has some good effects and some bad effects. The real question is in weighing the good and the bad and making sure that that the bad don't outweigh the good. Often, copyright law has used exceptions (fair use, public domain, de minimus use, first sale, etc.) to act as a "safety valve" in an attempt to make sure the bad doesn't outweigh the good.
  
  However, ACTA pretends that copyright is only good and there's no need to minimize the bad effects. That is, it only talks about the enforcement side, and completely ignores the necessary exceptions to copyright law that make it function. Basically, it exports the punishments from the US, but leaves out the safety valves. That's pretty scary. It may be (well, not really) okay in the US where fair use is clearly established, but most other countries don't have fair use at all (if they have anything, it's a much weaker system known as "fair dealing"). Exporting strict enforcement without exceptions is dangerous and will lead to unnecessary limitations on creativity and speech.


• There are serious health risks associated with ACTA, especially in the developing world. In this case, Europe pushed strongly to include patents under ACTA (something the US actually preferred to leave out). This has complicated matters for some countries. Under existing international agreements, countries can ignore pharmaceutical patents to deal with health emergencies. That is, if you have an outbreak and need a drug that pharmaceutical companies are unwilling to supply at a reasonable price, governments can break the patent and produce their own. That becomes much more difficult under ACTA, which could be a real threat to health around the globe.
  
  Similarly, there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs -- generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else. For example, say that a pharmaceutical company in India is shipping drugs to Brazil that are legal in both countries. However, those drugs violate a patent in Europe. If, during transit, those drugs pass through Europe, customs agents may seize them. That's already been happening, but the fear is that there's greater power to do so under ACTA.


• ACTA presents certain requirements for border patrol agents in determining what is and what is not infringing. This is a big issue for a variety of reasons. First, as we've seen in the US, ICE/border patrol isn't very good at figuring out what is and what is not infringing. Traditionally, there are significant questions of fact to be explored in determining if something is infringing, but under ACTA, border patrol often will be in a position to make a snap decision. Believe it or not, Homeland Security itself was worried about ACTA, because of fears that it would actually make it more difficult to be effective on intellectual property issues -- and might require them to spend more time trying to figure out if something is infringing, rather than if there's a terrorist trying to get into the country.


• Again, while ACTA supporters insist that it won't require changes to US law, there are a few parts of ACTA that are so vague that you can definitely see how they could be interpreted to require changes to US law. One key example is where certain kinds of patent infringement cases protect against either injunctions or damages... whereas ACTA would require one or the other.


• Even the signing parties don't agree on the purpose, scope and nature of ACTA. This may be the scariest part. Part of the debate in the US is over the USTR and President Obama's claim that ACTA is not a binding treaty, but rather a sole executive agreement that doesn't need Congressional approval. Many believe that this is unconstitutional, and Senator Ron Wyden has asked the President to explain what certainly appears to be a violation of the Constitution. However, over in Europe, they're insisting that it is a binding treaty. The US, on the other hand, has already said that it can ignore anything it doesn't like in ACTA. If you think that's a recipe for an international problem, you get a gold star.


• Finally, international trade agreements are a favorite tool of the copyright maximalist. You see it all the time. If they can't pass legislation they want, they resort to getting these things put into international trade agreements, which get significantly less scrutiny. This also allows for two tricks: the first is leapfrogging, where you get each country to implement the laws required by these agreements in slightly different ways, and then push other countries to match (or better yet, exceed) the rules in the other countries to stay in compliance. Then you use those agreements to demand the same thing from other countries to "harmonize" international laws. It's already been admitted that ACTA was done outside of existing structures for IP-related international agreements (like WIPO and the WTO) because a few countries wanted to negotiate it without input from Brazil, Russia, India and China... but the plan has always been to get ACTA approved, and then pressure those other countries to join.
  
  The sneaky part is that once you have some of these "international obligations," it's almost impossible to get out of them. Copyright maximalists love to shout about how we must absolutely respect our "international obligations" on these kinds of treaties, to limit the government's ability to fix copyright law.

Is PIPA worse?

PIPA features a particularly expansive definition of what constitutes a "site dedicated to infringing activities," which can include merely "enabling or facilitating" infringement. How broad this is is uncertain—is merely providing hosting to an infringer enabling infringement? What about indexing links to an infringing site? This is the sort of language that can easily reach too far—we've seen lawsuits and premised on some pretty thin ice so far.

Another huge hole in PIPA is that it allows court orders to issue against any "information location tools" as defined in the DMCA. That sounds a lot like the search engine-directed provisions in SOPA, but the DMCA defines "information location tools" very broadly—to the point where it could easily encompass a simple link. This could subject nearly the whole web to court orders issued through PIPA.

Is SOPA worse?

Even after the manager's amendment, SOPA retains a lot of excesses, pulling in a lot of other types of issues into one big bill—like also including the complexities of trade secret violations, and expanding criminal penalties for streaming (which certainly seemed to upset Justin Bieber, at least).

It also grants blanket immunity to a much wider range of entities who voluntarily decide to cut of suspected infringers. While PIPA restricts immunity to ad networks and payment processors, SOPA adds to this list any ISP, registry, registrar, search engine, bank, or even any advertiser. This puts a large number of potentially powerful intermediaries in an even more powerful position. If Comcast decides it's tired of, say, YouTube.ca taking bandwidth and audience away from cable programming, it can argue that YouTube is "dedicated to infringing activities" and not face any consequences under net neutrality or competition laws. If Google gets upset that eBay.co.uk isn't playing ball with Google Shopping and decides to delist it, it's got a plausible way to escape any lawsuits (to say nothing of unwanted attention from the FTC or the DoJ) for acting anticompetitively.

So to ask whether SOPA is better than PIPA, or vice versa, is a question without a clear answer—a comparison of rotten apples to rotten oranges. They're different enough to defy an up-or-down value comparison, though at base they are similar enough, and similarly bad.

"A patent isn't innovation. It's the right to block someone else from innovating... Patents are government-granted monopolies... We have them to reward innovation, but that’s not happening here."

This DRAFT statement reflects the conclusions reached at a meeting of over 90 academics, practitioners and public interest organizations from five continents gathered at American University Washington College of Law, June 16-18, 2010. In the days following the meeting, the statement received the individual and organizational endorsements listed below, and is still open for further endorsements at www.pijip.org

The meeting, convened by American University's Program on Information Justice and Intellectual Property, was called to analyze the official text of the Anti-Counterfeiting Trade Agreement (ACTA), released for the first time in April, 2010, after years of secretive negotiations. The text was released in the context of public criticism of the process and presumed substance of the negotiations (see Wellington Declaration, EU Resolution on Transparency and State of Play of the ACTA Negotiations). Negotiators claim that ACTA will not harm significant public interests.

We find that the terms of the agreement threaten numerous public interests, including nearly every concern specifically disclaimed by the negotiators in their announcement.

The proposed agreement is a deeply flawed product of a deeply flawed process.

What started as a proposal to coordinate customs enforcement offices has morphed into a massive new international intellectual property (IP) and internet regulation with grave consequences for the global economy and governments' ability to promote and protect public interests.

Any agreement of this scope and consequence must be based on a broad and consultative process and reflect a full range of public interest concerns. As detailed below, this text fails to meet these standards.

Recognizing that the terms of the agreement are under negotiation, a fair reading of the proposed text as a whole leads to our conclusions that ACTA:

THE INTERNET
-Encourages internet service providers to police users of the internet without adequate court oversight or due process;

-Globalizes 'anti-circumvention' provisions which threaten innovation, competition, open source business models, interoperability, copyright exceptions, and user choice;

FREE TRADE AND ACCESS TO MEDICINES
-Disrupts the free trade in legitimate generic medicines and other goods, and sacrifices the foundational principle that IP rights are territorial, by requiring customs authorities to seize goods in transit countries even when they do not violate any law of the producing and importing countries;

-Does little or nothing to address the problem of medicines with insufficient or wrong ingredients as the majority of these are not IP but regulatory system problems.

-Extends the powers of custom officials to search and seize a wide range of goods, including computers and other electronic devices, without adequate safeguards against unwarranted confiscations and privacy invasions;

-Extends 'ex officio' border search and seizures from willful, commercial scale trademark counterfeiting to a broad range of intellectual property infringements, including "confusingly similar" trademark violations, copyright infringement standards that require interpretation of "fair use" or similar user rights, and even to patent cases which frequently involve complex questions of law and fact that are difficult to adjudicate even by specialist courts after full adjudicative processes;

FUNDAMENTAL RIGHTS AND FREEDOMS
-Will curtail full enjoyment of fundamental rights and liberties, including rights to privacy and the protection of personal data, health, access to information, free expression, due process and presumptions of innocence, cultural participation, and other internationally protected human rights;

SCOPE AND NATURE OF IP LAW
-Distorts the balance fundamental to IP law between the rights and interests of proprietors and users, including by

• introducing very specific rights and remedies for rights holders without correlative requirements to provide exceptions, limitations, and due process safeguards for users;
• shifting enforcement from private civil mechanisms to public authorities and third parties, including to customs officials, criminal prosecutors and internet service providers -- in ways that are likely to be more sensitive to proprietary concerns and less sensitive to user concerns;
• omitting liability and disincentives for abuses of enforcement processes by right holders; and
• requiring the adoption of automatic damages assessments unrelated to any proven harm; 

-Alters the traditional and constitutionally mandated law making processes for IP by:

• locking in and exporting controversial aspects of US and EU enforcement practices which have already proven problematic, foreclosing future legislative improvements in response to changes in technology or policy;
• requiring substantive changes to intellectual property laws of a large number of negotiating countries.

INTERNATIONAL TRADE AND DEVELOPMENT
-Will disproportionately harm development and social welfare of the poor, particularly in developing countries, including through raising unjustifiable trade barriers to imports and exports of needed medicines and other knowledge embedded goods;

-Contains provisions inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement);

-Conflicts with the World Trade Organization Doha Declaration on TRIPS and Public Health and World Health Assembly Resolution 61.21 by limiting the ability of countries to exercise to the full flexibilities in the TRIPS agreement that can promote access to needed medicines;  

-Circumvents and undermines the commitments agreed to under the World Intellectual Property Organization development agenda, particularly recommendation 45 committing to "approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns," and "in accordance with Article 7 of the TRIPS Agreement";

INSTITUTIONAL ISSUES
-Creates a new and redundant international administration for IP issues outside of WIPO or the WTO with broad powers but limited transparency, threatening multilateralism in international IP norm setting;

-Encourages technical assistance, public awareness campaigns, and partnerships with the private sector that appear designed to promote only the interests of IP owners;

CONCLUSIONS ABOUT THE DEMOCRATIC PROCESS

The current process for considering public input into ACTA is fundamentally flawed in numerous respects. In many countries, the only consultations taking place are with select members of the public, off-the-record and without benefit of sharing the latest version of the rapidly changing text. There is little possibility that a fair and balanced agreement that protects and promotes public interests can evolve from such a distorted policy making process.

Governments, right holders and civil society should have an open and evidence-based discussion on the right strategy to confront willful commercial scale trademark counterfeiting and commercial scale copyright piracy. This discussion should take place in multilateral and national open and on-the-record forums with access to current negotiating text so that all interested stakeholders can participate.

"Institutions will try to preserve the problem to which they are the solution."

"It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"

copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright

it still allows individuals to advertise services for delivering pirated books by email, which must make it the enemy of every writer and publisher in the world. In effect it has turned copyright law on its head: instead of asking publishers for permission, it requires them to object if and when they become aware of a breach.

Google presents a far greater threat to the livelihood of individuals and the future of commercial institutions important to the community.... When the Performing Rights Society demanded more money for music videos streamed from the website, Google reacted by refusing to pay the requested 0.22p per play and took down the videos of the artists concerned.

Google is in the final analysis a parasite that creates nothing, merely offering little aggregation, lists and the ordering of information generated by people who have invested their capital, skill and time.