After trying various solutions over the years, including electric razors, wet-dry razors, baby oil or just water, and so on, in recent years I've settled on:
1. Shave Secret, http://www.shavesecret.com/ -- LOVE this stuff. plus
2. Gillette Fusion razor with power-- a little battery in the handle makes the blade vibrate so that the razor just cuts thru whiskers like I've never seen. This combination gives me no irritation and an unltra-smooth shave. Better than anything in the past that I've ever tried.
"What part of history of laws do you get that pearl of wisdom from that "Defamation law is just a type of intellectual property"?"
I have explained this in detail elsewhere. google it. but the bottom line is defamation law assumes you have a property right in your "reputation"--this is not a physical object or scarce resource. This is why it is like patent and copyright.
As usual in such matters: the problem is not "legal bullying." It's the law that is being used to bully. And that law is defamation law (libel and slander). Defamation law is just a type of intellectual property, and is as illegitimate as is patent, copyrgiht, and trademark law. All forms of IP, including libel and slander, should be abolished. They are inherently unjust and unnecessary, and only lead to violation of individual rights, as illustrated here.
This guy's criticism is largely flawed. Let's take his four criticisms:
"As Michael Kanellos pointed out on Forbes yesterday, the agreement has holes.
For instance, Twitter's pledge doesn't apply to any company that's filed its own patent infringement suit in the last 10 years. So even if you're a real company making real products, and you filed a lawsuit to prevent somebody from blatantly ripping off your IP, Twitter reserves the right to sue you first."
So? The solution is to not be a patent aggressor. (Whether you are a troll or not is frankly irrelevant.)
"Another example: the pledge says that Twitter can use the patents offensively to "deter a patent litigation threat." So if Twitter feels threatened, it can sue."
So then don't threaten them with an offensive patent suit
"Twitter's pledge also gives employees -- the actual inventors -- an uncomfortable amount of power. Kanellos lays out a hypothetical situation in which a rip-off company clones Twitter, then bribes a key patent holder to withhold consent so Twitter can't sue."
This is a good point. As I mentioned in my other post, this is the reason that it might be better to grant the contractual right to an independent agency such as a Patent Defense Trust or League, whose core mission is to block offensive use of patents, and which would presumably be un-bribeable.
"Geekwire interviewed three IP experts who agreed that the pledge is full of loopholes. One of them called it "both dumb and disingenuous."
Among other problems: you can't use patents defensively against most trolls, because they don't make any product. By definition they can't possibly violate your patents."
Yes. This is a defect caused by the nature of patent law. Twitter cannot be blamed for this. In fact there is no way to defend against trolls.
I noted above: "Further, the more companies that adopt this approach, the more their own patents become "poisoned" for future trolls, who often just buy their patents from other companies, e.g. those that go bankrupt. The patents from Twitter-type companies would never be able to be used by trolls."
"Many years ago now, my prior venture capital firm, Flatiron Partners, invested in a company called Thinking Media. It was an early Internet company. They developed some browser based javascript tracking technology. The company ulimately failed but was sold in a fire sale including the patents. Those patents eventually made their way to an incumbent, the big marketing research company Nielsen. Fast forward ten years or so and Nielsen sued two of my portfolio companies, comScore and TACODA, and a bunch of other companies too, on the basis of the Thinking Media patents. So IP that was partially funded by our firm was used to sue other portfolio companies. It is so galling to have this kind of thing happen and it is one of the many reasons why I have come to believe that software and business method patents are an enemy of innovation in the tech sector.
If Thinking Media had the patent hack in their documents, the story I just told would not have happened. And thanks to Twitter's leadership, I hope that all future USV portfolio companies will have the patent hack in their documents and stories like that one will be a thing of the past."
I think it won't stop trolls. But with X patents, Twitter is as able to defend itself against competitors suing it (or even trolls suing it) with the X patents, with or without this agreement. So they are no worse off. And they might even get X+Y patents, i.e. extra patents disclosed by a more motivated workforce.
Further, the more companies that adopt this approach, the more their own patents become "poisoned" for future trolls, who often just buy their patents from other companies, e.g. those that go bankrupt. The patents from Twitter-type companies would never be able to be used by trolls.
Further, imagine a world where most companies do this. So then the ONLY lawsuits are those initiated BY trolls. In such a world, the injustice of the patent system would become far more visible and apparent, possibly making meaningful patent reform more viable.
I think this is a brilliant approach. It is not perfect, but here is what I think is going on. If they just issue a policy statement that they will never use them defensively, they can change their minds later (just like legislatures cannot do this-they have parliamentary or legislative sovereignty and can repeal earlier laws). They can't tie their own hands. So they have to give a right to someone else in some way. The inventor is the safest best. Short of forming some trust or other organization (which might be a better solution, but it's more complicated and not as easily replicable by other companies; this one just requires you modify your standard inventor assignment agreement).
So to tie its own hands to prevent itself from suing someone aggressively--they are doing it by contractually giving a veto right to inventors, and assuming they would not want to do this. (Note also the agreement says the inventor will not be coerced or threatened into permitting it.) That also means that it runs with the patent if someone else ever acquires the patent from twitter.
Also, I think it protects the management/board of Twitter from complaints by shareholders--otherwise they might be sued for not acting in the shareholders' best interest if they refuse to sue someone they could extort a billion dollars from, for some "principle" that some managers prefer. This way they can say "well we have no contractual right to--we gave it up previously to the employee-inventors, for purpose of attracting better talent or getting more invention disclosures, a decision protected by the business judgment rule."
In the case of a work for hire, the employer (which is usually a company) is the author, under US copyright law. What would happen in the case of automated or animal-based "creation" ... who knows.
Why should the PTO be able to keep all the fees it gets, from exercising the monopoly position the state gives it? Suppose it could charge so that it makes a trillion dollar profit each year. Should it just get to pocket the difference? Pay each employee $1M a year? the costs of the PTO have no connection to the amount of revenue it can extract from the economy. Basically it is a criminal wing of a criminal gang. THey are all extorting money from us.
"The US Congress took a couple of steps in the last 20 years that had huge consequences: 1)they reduced funding for the PTO, causing a salary freeze. Result: the better examiners left. The rest are overworked. 2)they mandated higher fees from applicants. Result: the examiners are beholden to applicants."
I don't think this is right at all. There is no reason, IMO, to think that reducing PTO funding is a cause of what is going on at all. This entire compressed analysis assumes the PTO and state agencies are legitimate, and that PTO examiner "quality" matters at all. It does not. It is completely irrelevant to the problem posed by the patent system. Even if every patent ever granted was superbly written and examined and only "truly non-obvious" patents are granted-the patent system is still a horrible statist monopolistic drag on freedom and the market. PTO competence is utterly irrelevant. Thinking that it matters is just a byproduct of state education and statist thinking.
As I wrote to Masur a while back, "I'm a patent attorney, and also a libertarian opponent of patents and copyright in general. As I noted in my post, I thought of a parallel to how the FDA tends to be risk-averse in their drug approval decisions. Not sure if it's exactly the same but I see some parallels."
This is nonsense. Why not commit to stop using DMCA and the copyright system to censor your competition? So you will only use copyright and state censorship sometimes? How generous and noble of you.
Great post, and only one quibble: you say that this is an example of how copyright is abused. But it's not abuse. This is a natural result of having state grants of monopoly privilege over ideas, and administered by various bureaucratic state agencies/procedures. It's not abuse at all. This is like SOPA: the problem is that that it goes "too far" in protecting copyright. The problem is copyright itself. SOPA, and DMCA takedowns, are just a symptom. Copyright is the disease.
Mike, you write: "Keep the rates as they are, and they're violating antitrust rules by charging too much. Cut the prices or free up some of the patents, and it's an antitrust issue for leveraging their position and "dumping" in the market."
As others have pointed out, under antitrust law, if you charge a low price, you can be charged with monopolization by predatory price cutting. If you charge the same as others, you can be charged with collusion. If you charge a high price, it's a monopoly price that you can only charge because you have achieved a monopoly position. Damned no matter what you do.
I have no obligation to add to the injury your statist system does to me, by refraining from using roads etc. If anything you statists ought to refrain from using them, as it's your fault they exist. It's sad that you are so upset by someone like me just b/c I am unwilling to commit or condone aggression against you and your family. Sad.
And Sean Gabb, a friend of mine in England is head of the Libertarian Alliance, and is quite as mad as I am, I assure you.
We don't need an FDA (federal death administrtation) at all. The reason we have patents is the people are so confused about the nature of the federal governemtn and legislation. Get rid of the FDA AND patents.
Shave Secret
After trying various solutions over the years, including electric razors, wet-dry razors, baby oil or just water, and so on, in recent years I've settled on:
1. Shave Secret, http://www.shavesecret.com/ -- LOVE this stuff. plus
2. Gillette Fusion razor with power-- a little battery in the handle makes the blade vibrate so that the razor just cuts thru whiskers like I've never seen. This combination gives me no irritation and an unltra-smooth shave. Better than anything in the past that I've ever tried.
Re: Re: IP and Defamation Law are the Problem
"What part of history of laws do you get that pearl of wisdom from that "Defamation law is just a type of intellectual property"?"
I have explained this in detail elsewhere. google it. but the bottom line is defamation law assumes you have a property right in your "reputation"--this is not a physical object or scarce resource. This is why it is like patent and copyright.
Re: Re: IP and Defamation Law are the Problem
go to www.c4sif.org/resources or www.stephankinsella.com/publications and copy whatever you see to your heart's content. Though I don't think you are serious--you are just another typical fascist smartass asshole.
IP and Defamation Law are the Problem
As usual in such matters: the problem is not "legal bullying." It's the law that is being used to bully. And that law is defamation law (libel and slander). Defamation law is just a type of intellectual property, and is as illegitimate as is patent, copyrgiht, and trademark law. All forms of IP, including libel and slander, should be abolished. They are inherently unjust and unnecessary, and only lead to violation of individual rights, as illustrated here.
Re: One rebuttal
This guy's criticism is largely flawed. Let's take his four criticisms:
"As Michael Kanellos pointed out on Forbes yesterday, the agreement has holes.
For instance, Twitter's pledge doesn't apply to any company that's filed its own patent infringement suit in the last 10 years. So even if you're a real company making real products, and you filed a lawsuit to prevent somebody from blatantly ripping off your IP, Twitter reserves the right to sue you first."
So? The solution is to not be a patent aggressor. (Whether you are a troll or not is frankly irrelevant.)
"Another example: the pledge says that Twitter can use the patents offensively to "deter a patent litigation threat." So if Twitter feels threatened, it can sue."
So then don't threaten them with an offensive patent suit
"Twitter's pledge also gives employees -- the actual inventors -- an uncomfortable amount of power. Kanellos lays out a hypothetical situation in which a rip-off company clones Twitter, then bribes a key patent holder to withhold consent so Twitter can't sue."
This is a good point. As I mentioned in my other post, this is the reason that it might be better to grant the contractual right to an independent agency such as a Patent Defense Trust or League, whose core mission is to block offensive use of patents, and which would presumably be un-bribeable.
"Geekwire interviewed three IP experts who agreed that the pledge is full of loopholes. One of them called it "both dumb and disingenuous."
Among other problems: you can't use patents defensively against most trolls, because they don't make any product. By definition they can't possibly violate your patents."
Yes. This is a defect caused by the nature of patent law. Twitter cannot be blamed for this. In fact there is no way to defend against trolls.
Re: Re: What's the point?
I noted above: "Further, the more companies that adopt this approach, the more their own patents become "poisoned" for future trolls, who often just buy their patents from other companies, e.g. those that go bankrupt. The patents from Twitter-type companies would never be able to be used by trolls."
Perfect example of this is explained in VC Fred Wilson's post The Twitter "Patent Hack":
"Many years ago now, my prior venture capital firm, Flatiron Partners, invested in a company called Thinking Media. It was an early Internet company. They developed some browser based javascript tracking technology. The company ulimately failed but was sold in a fire sale including the patents. Those patents eventually made their way to an incumbent, the big marketing research company Nielsen. Fast forward ten years or so and Nielsen sued two of my portfolio companies, comScore and TACODA, and a bunch of other companies too, on the basis of the Thinking Media patents. So IP that was partially funded by our firm was used to sue other portfolio companies. It is so galling to have this kind of thing happen and it is one of the many reasons why I have come to believe that software and business method patents are an enemy of innovation in the tech sector.
If Thinking Media had the patent hack in their documents, the story I just told would not have happened. And thanks to Twitter's leadership, I hope that all future USV portfolio companies will have the patent hack in their documents and stories like that one will be a thing of the past."
Re: Follow the money
Fair point, but often there are multiple inventors, increasing the likelihood of a single holdout.
A better solution might be to set up some kind of Patent Defense League or Trust, an agency granted a contractual right, and has its mission dedicated to opposing patent aggression. I discuss such a possibility in links here: http://c4sif.org/2012/04/twitter-heroically-promises-not-to-use-patents-offensively/
Re: What's the point?
I think it won't stop trolls. But with X patents, Twitter is as able to defend itself against competitors suing it (or even trolls suing it) with the X patents, with or without this agreement. So they are no worse off. And they might even get X+Y patents, i.e. extra patents disclosed by a more motivated workforce.
Further, the more companies that adopt this approach, the more their own patents become "poisoned" for future trolls, who often just buy their patents from other companies, e.g. those that go bankrupt. The patents from Twitter-type companies would never be able to be used by trolls.
Further, imagine a world where most companies do this. So then the ONLY lawsuits are those initiated BY trolls. In such a world, the injustice of the patent system would become far more visible and apparent, possibly making meaningful patent reform more viable.
Re: Re: Re: Re: What about existing patent law?
I think this is a brilliant approach. It is not perfect, but here is what I think is going on. If they just issue a policy statement that they will never use them defensively, they can change their minds later (just like legislatures cannot do this-they have parliamentary or legislative sovereignty and can repeal earlier laws). They can't tie their own hands. So they have to give a right to someone else in some way. The inventor is the safest best. Short of forming some trust or other organization (which might be a better solution, but it's more complicated and not as easily replicable by other companies; this one just requires you modify your standard inventor assignment agreement).
So to tie its own hands to prevent itself from suing someone aggressively--they are doing it by contractually giving a veto right to inventors, and assuming they would not want to do this. (Note also the agreement says the inventor will not be coerced or threatened into permitting it.) That also means that it runs with the patent if someone else ever acquires the patent from twitter.
Also, I think it protects the management/board of Twitter from complaints by shareholders--otherwise they might be sued for not acting in the shareholders' best interest if they refuse to sue someone they could extort a billion dollars from, for some "principle" that some managers prefer. This way they can say "well we have no contractual right to--we gave it up previously to the employee-inventors, for purpose of attracting better talent or getting more invention disclosures, a decision protected by the business judgment rule."
US law is different
In the case of a work for hire, the employer (which is usually a company) is the author, under US copyright law. What would happen in the case of automated or animal-based "creation" ... who knows.
Re: Re: blame congress again
Why should the PTO be able to keep all the fees it gets, from exercising the monopoly position the state gives it? Suppose it could charge so that it makes a trillion dollar profit each year. Should it just get to pocket the difference? Pay each employee $1M a year? the costs of the PTO have no connection to the amount of revenue it can extract from the economy. Basically it is a criminal wing of a criminal gang. THey are all extorting money from us.
Re: blame congress again
"The US Congress took a couple of steps in the last 20 years that had huge consequences: 1)they reduced funding for the PTO, causing a salary freeze. Result: the better examiners left. The rest are overworked. 2)they mandated higher fees from applicants. Result: the examiners are beholden to applicants."
I don't think this is right at all. There is no reason, IMO, to think that reducing PTO funding is a cause of what is going on at all. This entire compressed analysis assumes the PTO and state agencies are legitimate, and that PTO examiner "quality" matters at all. It does not. It is completely irrelevant to the problem posed by the patent system. Even if every patent ever granted was superbly written and examined and only "truly non-obvious" patents are granted-the patent system is still a horrible statist monopolistic drag on freedom and the market. PTO competence is utterly irrelevant. Thinking that it matters is just a byproduct of state education and statist thinking.
FDA parallels
As I wrote to Masur a while back, "I'm a patent attorney, and also a libertarian opponent of patents and copyright in general. As I noted in my post, I thought of a parallel to how the FDA tends to be risk-averse in their drug approval decisions. Not sure if it's exactly the same but I see some parallels."
Re: Re: Re: Re:
See the info collected here: http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/ . There can be little doubt that the patent system, like all state interventions, reduces overall wealth as well as innovation.
Re: Re: Re: Apology
This is nonsense. Why not commit to stop using DMCA and the copyright system to censor your competition? So you will only use copyright and state censorship sometimes? How generous and noble of you.
Re: Re: Apology
Why should this "apology" be greeted with gratitude? Such copyright holders will still gladly use the censorship power of the state against others.
But it's not "abuse"
Great post, and only one quibble: you say that this is an example of how copyright is abused. But it's not abuse. This is a natural result of having state grants of monopoly privilege over ideas, and administered by various bureaucratic state agencies/procedures. It's not abuse at all. This is like SOPA: the problem is that that it goes "too far" in protecting copyright. The problem is copyright itself. SOPA, and DMCA takedowns, are just a symptom. Copyright is the disease.
Antitrust law needs to go
Mike, you write: "Keep the rates as they are, and they're violating antitrust rules by charging too much. Cut the prices or free up some of the patents, and it's an antitrust issue for leveraging their position and "dumping" in the market."
As others have pointed out, under antitrust law, if you charge a low price, you can be charged with monopolization by predatory price cutting. If you charge the same as others, you can be charged with collusion. If you charge a high price, it's a monopoly price that you can only charge because you have achieved a monopoly position. Damned no matter what you do.
Re: Re: Re: Piracy
I have no obligation to add to the injury your statist system does to me, by refraining from using roads etc. If anything you statists ought to refrain from using them, as it's your fault they exist. It's sad that you are so upset by someone like me just b/c I am unwilling to commit or condone aggression against you and your family. Sad.
And Sean Gabb, a friend of mine in England is head of the Libertarian Alliance, and is quite as mad as I am, I assure you.
Re: Piracy
We don't need an FDA (federal death administrtation) at all. The reason we have patents is the people are so confused about the nature of the federal governemtn and legislation. Get rid of the FDA AND patents.