As an IP/IT lawyer I am happy I started my lifelong programming hobby with the C-64 and kept at it, even when law studies, other hobbies and work made time scarce. Why? Not only do my clients (programmers or their employers) breathe a sigh of relief when they understand I might actually understand what (and how) they developed their software, but it trains the same skills a good contract writer needs: formulating use cases, functional design, good definitions, refactoring, structure and commenting. Even test-driven development works pretty well on contracts, in my experience.
The best part, though, was standing up in court in front of a non-technical judge and refuting the other side's nonsense on how fast code is written ('no way an experienced developer can write hundreds, yes hundreds of lines of code in a week') by putting my laptop in front of the judge and rapidly whipping up an nice Mac program that printed the judge's name in a window on screen, demonstrating that (with the auto-generated code) I had just written a few hundred lines of code in minutes. The judge: "I am sorry, gentlemen, but I am going to accept the technical facts of this case from this lawyer: if he can do this, then his professional programming client can probably do more: you obviously are trying to abuse my lack of hands-on coding experience with your grand statements, but now that I see how it is done and that even your expert witness cannot refute what has been demonstrated I suggest you pipe down."
So yeah, learning to play with and understand code is VERY valuable to lawyers in the tech field, if not to most people.
I could not agree more: I work in the patent field as an IP litigator and teacher (to burn off my karmic debt?: and there are way too many 'I do not need more tech than my blackberry and my fountain pen' lawyers, who assume the (technical) facts of the case really matter very little and so do not care. IP law is VERY factual, especially in the patent field. That is why I love teaching engineers about IP law and using it in alternative ways, such as open source.
A sad truth, indeed. In fact, through US media and entertainment, the very negative perception of lawyers is spreading throughout the world, changing the nature of law and its practice.
That is not how they are primarily (macro-economically and legally) intended, obviously. It is about drawing investment money and business to your country by offering incentives in the form of limited monopolies to your target audience.
Look at this: http://www.copyrighthistory.org/cgi-bin/kleioc/0010/exec/showTranslation/%22i_1474%22/start/%22yes%22 ... in my view the best and certainly shortest patent act ever: still relevant and a whole lot clearer than most modern ones!
The pitch is obvious: our State needs more clever men and tech for profit and advantage. Therefore we will lend the State's power to these men if they come to us with new tech.
I love using this statute to teach students what the system was intended to do and then showing the various big IP jurisdictions and seeing if they pass the test.
IP law: promoting innovation (for national profit) by protecting investment through exclusive, state enforced rights since 1474. :-)
Actually, and this an academic point: it is one of the mainstay mantra's of IP law that ideas cannot be protected, although specific technical functionality / embodiments can.
The difference? *throws hands in the air* OK, fine, patents in practice do get really close to protecting an 'idea' in that they broadly protect a certain way of solving a problem or offering new functionality.
The patents on new functionality are the tough ones, in my view: you thought it up and took the time, money and effort to get it protected. Now you can exclude/permit people to implement it. Another way of solving a problem may well be easier to find than the 'idea' of this functionality.
All this makes me glad that the European Patent Office has much higher requirements for such patents than the USPTO and that the European Court of Justice only this week struck down a copyright claim to software functionality. There is a more balanced way of going about all this.
I have read the article and as someone who has spent a *lot* of time studying the various video formats for patent infringement, let me assure you, it will... oh, yes, it will... :-(
I practice and teach IP law to both science and law students as well as advising some of the largest corporations in the world and I do not know of any easy, practical and/or efficient way of using all the necessary kinds of claimed bits of technological innovation that were patented somewhere in the last 20 years (the max lifespan of a patent in most countries). So, yeah, creating a new video standard: doable. Creating a new video container/management system: very doable. Doing all this without infringing some rights of others: very, very tough. His best hope: to be successful enough to get the standard made and yet unsuccessful enough not to get sued.
Maybe the author did not want to make a stronger 'rhetorical point'? Maybe the author wanted to focus on the actual facts of the news instead of entering into a debate with people whose anti-DRM zeal borders on the religious...? Just a thought, of course. ;-)
On a side note: I love the description of a technology as 'evil' and the DRM-use only case defined as "violat[ing] people's property rights". I would say that DRM-promoters have a fair counter-point when they say that DRM is designed to stop people from violating other people's intellectual property rights. You may disagree about whether or not that is something worth protecting, but property/investment protection seems a more logical reason for developing DRM at great expense then to "violate people's property rights", as you put it.
As for the 'how is DRM different from hacking your computer' approach... well, all such comparisons in the great cloud of IP-debates are skewed and - at best - only partially relevant to the actual legal/social questions at hand, IMHO.
The difference is simple, though: you yourself (yes, you!) contractually bought/agreed to something that limits what you get. Don't like it? Then don't buy it, is what I say. Oh dear... wait, that is skirting very close to what you accused the OP of... let me put it like this: DRM is something that customers don't like but a) have to put up with if they buy it anyway OR b) have the option of not buying. Sound fair enough?
Lazy examiners lying in stacks of irrelevant prior art distributing patents according to low standards of inventive step is no basis for a system of exclusive rights...? :)
I did say that and I stand by both points: I do not know what dictionary you use, but 'temporary' in my view means 'finite in time'. How long an IP right should last is certainly debatable, although I think most IP rights have pretty okay durations here in Europe.
My only criticism is for software-related patents and copyrights... 20 years and 70 years after the developers death seem excessive. Still, with the economic lifespan of most software being measured in only a few years, the point is probably moot.
BTW, I *like* the argument that patents also stimulate innovation by providing incentives to work around previous patents, but it wrecks another pro-patent argument, namely that patents' public disclosure frees up R&D resources elsewhere so that not everybody has to invent the new 'wheel' for themselves. So yeah, but no.
Well, fair point: many countries in Europe do not award damages for actual lawyer fees and instead award a set amount to cover lawyer fees. The idea is to keep the courts accessible to all.
Under the Enforcement Directive (a bundle of IP-holder friendly measures to be implemented in all Member-States) actual costs have to be awarded (so as to put the burden of civil enforcement on the infringers' shoulders.
A nice idea, but now you get this: larger parties sue or send warning letters to alleged infringers and basically say "we will outspend you, win, and then make you pay our inflated legal bills, unless you settle now". I am an expensive lawyer myself and this practice is very real (oh, and obviously it is quite effective).
In view of the 'normal system' for civil proceedings (where nobody gets their legal bills reimbursed by the losing side) many judges are very critical of this new system just for IP rights. Those judges are very active in lowering the amount awarded by referring to the phrase "full and *reasonable* costs" in the Directive.T hey have even published guideline amounts as to what they consider reasonable. A nice and wise thing in my view.
Err, is there a non-majority legislative body in the US I do not know about...? European here, so forgive me if I got that wrong, but I thought the USA were a representative democracy.
It actually is the same for all IP rights: share your creation with the rest of humanity instead of keeping it for yourself and we'll give you a temporary bonus right. After that, it is for everyone to use as they want. That is the basic deal underlying all creative IP (so that excludes trade names and trade marks, which serve a different purpose).
But having to spend any money at all because some *fellow citizen* decides your rights are not important to him, that has to kind of nuisance, don't you think?
Remember, we are not talking government costs here (except for criminal prosecution of IP-infringement: big hurrah from the thats-free-for-us-IP-holders-dept.) but actual money paid by a fellow citizen to get your wrong (yes, breaking the law is wrong) corrected. Compare: some asshole wrecks your car that you use for your work and income, because he thinks cars are 'evil environment killers'. Are you telling me that you don't see the justice in having him pay up for the cost of the lawyer you needed to get him to pay the costs of repair, as well as maybe the money you lost cause you couldn't get a rental car fast enough?
If you wish to quote Robert A. Heinlein, maybe you should consider attributing the quote? It is actually quite good, so I have taken the liberty of doing it for you... you're welcome! ;)
And yeah, so that makes ... say Charles Manson a 'free man'in your view? I suppose there is an existentialist argument to be made to that effect, but it is not really an ethical road I'd like to see society going down, do you? Pure classical anarchic philosophy is certainly idealistic: "every human being is only responsible and subject to itself". Like most idealistic views (communism, capitalism, christianity, buddhism), it tends to have the drawback that people *can* be egotistic bastards who kill, maim, (mass-)murder, rape, pillage and ... well, generally do despicable as well as wonderful things.
Anyhow, taking responsibility for your own actions is a fine thing and the basis of moral thought, so kudos to Heinlein. Just don't expect your society and neighbors not to have views on your actions.
You might even learn something: after all, to quote Heinlein: "I never learned from a man who agreed with me." ;)
The Radio Caroline history website confirms my suspicions: "Radio Nord and the owners of Radio Veronica an efficiently run Dutch offshore radio station. Radio law in the Netherlands was as restrictive as in the UK. In Holland as in Britain the law of the land only extended as far as territorial waters, three miles out from the coast. Beyond that lay international waters where there was no law other than that defined by the flag states of ships. A ship registered to Panama for example, whilst in international waters recognised Panamanian law. If the law of the flag state had no objection to international marine broadcasting then the ship could make broadcasts which were not illegal and could not be stopped. Even Veronica was using precedent created by earlier marine broadcasts made off the Danish and Swedish coasts."
So... they weren't breaking any laws, were they? They were using the law and established precedent: that's legal and just bloody clever, mate!
See my comments about economic arguments in the IP-debate above.
>> There is also no human right that says you have to get paid for something you do once again and again for the duration of your life plus 75 years. I find that morally wrong.
Correct, it is not a human right: it is only a law the majority of the population had enacted as legislation at some point in history. You can definitely change that (although international treaties have made it a little more work).
As for your opinion, I can definitely understand that you would think that, but I don't see it that way. If I write one good song/painting/book in my youth, beg, crawl and dance to finally get it published, but it only becomes a hit only many decades later, how do I profit from the book sales without IP? If you answer "by getting a profit sharing agreement in place", I swear, I *will* laugh! ;)
Oh dear, do you really want to go that route...? My studies in law school and philosophy were over-saturated with this crap. OK, I'll spot the obvious flaw there: hey, you are using another moral rule to obfuscate the point I was trying to make. Excellent court room trick, I admit. *tips hat* ;)
So, how shall I rephrase that? "every act of breaking the law lowers the moral sense of it being wrong to break the law"? There, better?
>> Unjust laws must be disobeyed.
Yeah, see... I believe that laws that prevent me from butchering someone who lays a hand on my kids are unjust. My neighbor believes *all* laws are unjust (especially tax laws, although he oddly loves all welfare laws). The nutjob across the street from my brother believes gun laws are a conspiracy against him by some nefarious otherworldly entities. "I don't like it so it ain't just" scares the crap of me, even in myself.
Maybe I'm wrong, but let's say we save the civil disobedience exception for nazi-type legislation, ok? You are not some revolutionary by breaking the law. In my humble opinion, Heroes are people who take the time and effort to do the right thing in the right way.
Well... read carefully: nowhere do I say that file-sharing, piracy, generic or even fake medicines, software theft, plagiarizing, etc. do *not* have economic effects. In fact, I am pretty sure most IP-infringement occurs precisely because it has an economic effect (ie. turns a profit for the producer).
I believe the piracy may in certain circumstances/ countries/ whatever indeed drive consumption and speed the wheels of the economy. Even a large black-market economy or arms-trading may do that. Economic arguments are certainly worth taking into consideration, but I believe the main questions hinges on how you want to reward creative and innovative minds in society, without demanding they have automatic business acumen, personal capital and social skills on top of their already impressive creative abilities.
Hmm, just curious: how would you live of the IP/royalty-proceeds of something that doesn't sell? I think the entire point is to provide successful authors with a share of the proceeds throughout their lives...
I know and even represent film-writers and directors who start off with nothing, spend half their life getting funding, the other half working their ass off and when they retire, they can supplement what meager pension they may or may not have with the aggregate royalties from their various documentaries and films. Why would you take that away?
Knowing how to code helps lawyers in many ways
As an IP/IT lawyer I am happy I started my lifelong programming hobby with the C-64 and kept at it, even when law studies, other hobbies and work made time scarce. Why? Not only do my clients (programmers or their employers) breathe a sigh of relief when they understand I might actually understand what (and how) they developed their software, but it trains the same skills a good contract writer needs: formulating use cases, functional design, good definitions, refactoring, structure and commenting. Even test-driven development works pretty well on contracts, in my experience.
The best part, though, was standing up in court in front of a non-technical judge and refuting the other side's nonsense on how fast code is written ('no way an experienced developer can write hundreds, yes hundreds of lines of code in a week') by putting my laptop in front of the judge and rapidly whipping up an nice Mac program that printed the judge's name in a window on screen, demonstrating that (with the auto-generated code) I had just written a few hundred lines of code in minutes. The judge: "I am sorry, gentlemen, but I am going to accept the technical facts of this case from this lawyer: if he can do this, then his professional programming client can probably do more: you obviously are trying to abuse my lack of hands-on coding experience with your grand statements, but now that I see how it is done and that even your expert witness cannot refute what has been demonstrated I suggest you pipe down."
So yeah, learning to play with and understand code is VERY valuable to lawyers in the tech field, if not to most people.
Re: Re: Re: Missing the point on DRM
True and true.
Re:
I could not agree more: I work in the patent field as an IP litigator and teacher (to burn off my karmic debt?: and there are way too many 'I do not need more tech than my blackberry and my fountain pen' lawyers, who assume the (technical) facts of the case really matter very little and so do not care. IP law is VERY factual, especially in the patent field. That is why I love teaching engineers about IP law and using it in alternative ways, such as open source.
Re: Re: Re: Hardliners
A sad truth, indeed. In fact, through US media and entertainment, the very negative perception of lawyers is spreading throughout the world, changing the nature of law and its practice.
Re:
That is not how they are primarily (macro-economically and legally) intended, obviously. It is about drawing investment money and business to your country by offering incentives in the form of limited monopolies to your target audience.
Look at this: http://www.copyrighthistory.org/cgi-bin/kleioc/0010/exec/showTranslation/%22i_1474%22/start/%22yes%22 ... in my view the best and certainly shortest patent act ever: still relevant and a whole lot clearer than most modern ones!
The pitch is obvious: our State needs more clever men and tech for profit and advantage. Therefore we will lend the State's power to these men if they come to us with new tech.
I love using this statute to teach students what the system was intended to do and then showing the various big IP jurisdictions and seeing if they pass the test.
IP law: promoting innovation (for national profit) by protecting investment through exclusive, state enforced rights since 1474. :-)
Re: Re: Missing the point on DRM
Actually, and this an academic point: it is one of the mainstay mantra's of IP law that ideas cannot be protected, although specific technical functionality / embodiments can.
The difference? *throws hands in the air* OK, fine, patents in practice do get really close to protecting an 'idea' in that they broadly protect a certain way of solving a problem or offering new functionality.
The patents on new functionality are the tough ones, in my view: you thought it up and took the time, money and effort to get it protected. Now you can exclude/permit people to implement it. Another way of solving a problem may well be easier to find than the 'idea' of this functionality.
All this makes me glad that the European Patent Office has much higher requirements for such patents than the USPTO and that the European Court of Justice only this week struck down a copyright claim to software functionality. There is a more balanced way of going about all this.
Re: I haven't even read this article but...
I have read the article and as someone who has spent a *lot* of time studying the various video formats for patent infringement, let me assure you, it will... oh, yes, it will... :-(
I practice and teach IP law to both science and law students as well as advising some of the largest corporations in the world and I do not know of any easy, practical and/or efficient way of using all the necessary kinds of claimed bits of technological innovation that were patented somewhere in the last 20 years (the max lifespan of a patent in most countries). So, yeah, creating a new video standard: doable. Creating a new video container/management system: very doable. Doing all this without infringing some rights of others: very, very tough. His best hope: to be successful enough to get the standard made and yet unsuccessful enough not to get sued.
Re: Missing the point on DRM
Maybe the author did not want to make a stronger 'rhetorical point'? Maybe the author wanted to focus on the actual facts of the news instead of entering into a debate with people whose anti-DRM zeal borders on the religious...? Just a thought, of course. ;-)
On a side note: I love the description of a technology as 'evil' and the DRM-use only case defined as "violat[ing] people's property rights". I would say that DRM-promoters have a fair counter-point when they say that DRM is designed to stop people from violating other people's intellectual property rights. You may disagree about whether or not that is something worth protecting, but property/investment protection seems a more logical reason for developing DRM at great expense then to "violate people's property rights", as you put it.
As for the 'how is DRM different from hacking your computer' approach... well, all such comparisons in the great cloud of IP-debates are skewed and - at best - only partially relevant to the actual legal/social questions at hand, IMHO.
The difference is simple, though: you yourself (yes, you!) contractually bought/agreed to something that limits what you get. Don't like it? Then don't buy it, is what I say. Oh dear... wait, that is skirting very close to what you accused the OP of... let me put it like this: DRM is something that customers don't like but a) have to put up with if they buy it anyway OR b) have the option of not buying. Sound fair enough?
Re: Re: Re: Re: Re: Re: Re:
Lazy examiners lying in stacks of irrelevant prior art distributing patents according to low standards of inventive step is no basis for a system of exclusive rights...? :)
Re: Re: Re: Re: Re: Almost 50 posts
I did say that and I stand by both points: I do not know what dictionary you use, but 'temporary' in my view means 'finite in time'. How long an IP right should last is certainly debatable, although I think most IP rights have pretty okay durations here in Europe.
My only criticism is for software-related patents and copyrights... 20 years and 70 years after the developers death seem excessive. Still, with the economic lifespan of most software being measured in only a few years, the point is probably moot.
BTW, I *like* the argument that patents also stimulate innovation by providing incentives to work around previous patents, but it wrecks another pro-patent argument, namely that patents' public disclosure frees up R&D resources elsewhere so that not everybody has to invent the new 'wheel' for themselves. So yeah, but no.
Re: Re: Re: Re: Re: Re: Re: Re:
Well, fair point: many countries in Europe do not award damages for actual lawyer fees and instead award a set amount to cover lawyer fees. The idea is to keep the courts accessible to all.
Under the Enforcement Directive (a bundle of IP-holder friendly measures to be implemented in all Member-States) actual costs have to be awarded (so as to put the burden of civil enforcement on the infringers' shoulders.
A nice idea, but now you get this: larger parties sue or send warning letters to alleged infringers and basically say "we will outspend you, win, and then make you pay our inflated legal bills, unless you settle now". I am an expensive lawyer myself and this practice is very real (oh, and obviously it is quite effective).
In view of the 'normal system' for civil proceedings (where nobody gets their legal bills reimbursed by the losing side) many judges are very critical of this new system just for IP rights. Those judges are very active in lowering the amount awarded by referring to the phrase "full and *reasonable* costs" in the Directive.T hey have even published guideline amounts as to what they consider reasonable. A nice and wise thing in my view.
Re: Re: Re: Re: Re:
Err, is there a non-majority legislative body in the US I do not know about...? European here, so forgive me if I got that wrong, but I thought the USA were a representative democracy.
Re: Almost 50 posts
Excellent point!
It actually is the same for all IP rights: share your creation with the rest of humanity instead of keeping it for yourself and we'll give you a temporary bonus right. After that, it is for everyone to use as they want. That is the basic deal underlying all creative IP (so that excludes trade names and trade marks, which serve a different purpose).
Re: Re: Re: Re: Re:
But having to spend any money at all because some *fellow citizen* decides your rights are not important to him, that has to kind of nuisance, don't you think?
Remember, we are not talking government costs here (except for criminal prosecution of IP-infringement: big hurrah from the thats-free-for-us-IP-holders-dept.) but actual money paid by a fellow citizen to get your wrong (yes, breaking the law is wrong) corrected. Compare: some asshole wrecks your car that you use for your work and income, because he thinks cars are 'evil environment killers'. Are you telling me that you don't see the justice in having him pay up for the cost of the lawyer you needed to get him to pay the costs of repair, as well as maybe the money you lost cause you couldn't get a rental car fast enough?
Re: Re: Let's try to keep an open mind...?
If you wish to quote Robert A. Heinlein, maybe you should consider attributing the quote? It is actually quite good, so I have taken the liberty of doing it for you... you're welcome! ;)
And yeah, so that makes ... say Charles Manson a 'free man'in your view? I suppose there is an existentialist argument to be made to that effect, but it is not really an ethical road I'd like to see society going down, do you? Pure classical anarchic philosophy is certainly idealistic: "every human being is only responsible and subject to itself". Like most idealistic views (communism, capitalism, christianity, buddhism), it tends to have the drawback that people *can* be egotistic bastards who kill, maim, (mass-)murder, rape, pillage and ... well, generally do despicable as well as wonderful things.
Anyhow, taking responsibility for your own actions is a fine thing and the basis of moral thought, so kudos to Heinlein. Just don't expect your society and neighbors not to have views on your actions.
You might even learn something: after all, to quote Heinlein: "I never learned from a man who agreed with me." ;)
Re: Re: Re:
Extra credit for a wonderful example!
The Radio Caroline history website confirms my suspicions: "Radio Nord and the owners of Radio Veronica an efficiently run Dutch offshore radio station. Radio law in the Netherlands was as restrictive as in the UK. In Holland as in Britain the law of the land only extended as far as territorial waters, three miles out from the coast. Beyond that lay international waters where there was no law other than that defined by the flag states of ships. A ship registered to Panama for example, whilst in international waters recognised Panamanian law. If the law of the flag state had no objection to international marine broadcasting then the ship could make broadcasts which were not illegal and could not be stopped. Even Veronica was using precedent created by earlier marine broadcasts made off the Danish and Swedish coasts."
So... they weren't breaking any laws, were they? They were using the law and established precedent: that's legal and just bloody clever, mate!
Re: Re: Re:
See my comments about economic arguments in the IP-debate above.
>> There is also no human right that says you have to get paid for something you do once again and again for the duration of your life plus 75 years. I find that morally wrong.
Correct, it is not a human right: it is only a law the majority of the population had enacted as legislation at some point in history. You can definitely change that (although international treaties have made it a little more work).
As for your opinion, I can definitely understand that you would think that, but I don't see it that way. If I write one good song/painting/book in my youth, beg, crawl and dance to finally get it published, but it only becomes a hit only many decades later, how do I profit from the book sales without IP? If you answer "by getting a profit sharing agreement in place", I swear, I *will* laugh! ;)
Re: Re: Re:
Oh dear, do you really want to go that route...? My studies in law school and philosophy were over-saturated with this crap. OK, I'll spot the obvious flaw there: hey, you are using another moral rule to obfuscate the point I was trying to make. Excellent court room trick, I admit. *tips hat* ;)
So, how shall I rephrase that? "every act of breaking the law lowers the moral sense of it being wrong to break the law"? There, better?
>> Unjust laws must be disobeyed.
Yeah, see... I believe that laws that prevent me from butchering someone who lays a hand on my kids are unjust. My neighbor believes *all* laws are unjust (especially tax laws, although he oddly loves all welfare laws). The nutjob across the street from my brother believes gun laws are a conspiracy against him by some nefarious otherworldly entities. "I don't like it so it ain't just" scares the crap of me, even in myself.
Maybe I'm wrong, but let's say we save the civil disobedience exception for nazi-type legislation, ok? You are not some revolutionary by breaking the law. In my humble opinion, Heroes are people who take the time and effort to do the right thing in the right way.
Re: Re: Re:
Well... read carefully: nowhere do I say that file-sharing, piracy, generic or even fake medicines, software theft, plagiarizing, etc. do *not* have economic effects. In fact, I am pretty sure most IP-infringement occurs precisely because it has an economic effect (ie. turns a profit for the producer).
I believe the piracy may in certain circumstances/ countries/ whatever indeed drive consumption and speed the wheels of the economy. Even a large black-market economy or arms-trading may do that. Economic arguments are certainly worth taking into consideration, but I believe the main questions hinges on how you want to reward creative and innovative minds in society, without demanding they have automatic business acumen, personal capital and social skills on top of their already impressive creative abilities.
Re:
Hmm, just curious: how would you live of the IP/royalty-proceeds of something that doesn't sell? I think the entire point is to provide successful authors with a share of the proceeds throughout their lives...
I know and even represent film-writers and directors who start off with nothing, spend half their life getting funding, the other half working their ass off and when they retire, they can supplement what meager pension they may or may not have with the aggregate royalties from their various documentaries and films. Why would you take that away?