Which Causes More Harm: Copyright Or Patents?

from the hard-to-choose dept

One of the recurrent themes on Techdirt is the harm caused by intellectual monopolies ? copyright and patents ? to the economy in particular, and to society in general. Stephan Kinsella has raised an interesting question: which of them is worse?

There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding. The worst two by far are patent and copyright. Some say the patent system is worse than copyright, because most innovations are inevitable anyway and there is no independent inventor defense, whereas it?s unlikely someone else would independently write Romeo and Juliet (of course, Shakespeare had no copyright and he borrowed freely from previous stories, but let?s not let facts get in the way of the romanticized notion of copyright). This argument overlooks the fact that copyright prohibits not only literal copying but non-literal copying of ?similar? aspects of the copyrighted work and also the making of derivative works.

Others think copyright is worse because it lasts longer, for example.

In the end, he plumps for copyright, and gives three main reasons.

Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).

It’s interesting that there hasn’t been the same push to lengthen the patent term in the same way as for copyright. Is that just because it needed companies like Disney with skilful lobbyists to push through legislation extending copyright, or is there some reason that people feel that the heirs of artists have a greater “right” to this protracted monopoly than the heirs of inventors?

Trends. Copyright law keeps getting worse, while patent law has been basically the same for a while now, and in fact has slightly improved?in recent years it?s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law ? ever.

Again, is that simply a function of corporate greed being more prevalent in the copyright industries? Or maybe it’s because there is a greater concentration of power in the world of music or films, say, that makes it easier for a few corporations to exert pressure on politicians. There is no equivalent concentration in the patent world. In fact, there is a very clear tension between different sectors ? the pharmaceutical industries just can’t get enough patent power, whereas the computer industry is far less enthusiastic.

Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition. So it basically acts like a tax. It?s bad, it impoverishes us, it slows things down. But it?s just another tax.

The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind?s greatest anti-state weapon. Taxes are bad, but killing or restricting the Internet is just horrible.

The Internet works by copying files multiple times as they are transmitted across the network. Everything we look at online is a copy. So there is a fundamental dissonance between copyright, a monopoly that seeks to stop people from copying, and the Internet, which is built on it.

This explains why previous laws to stamp out online copyright infringement have failed: it’s inherent in the system. It also helps us understand why the latest iteration of those laws ? E-PARASITE/SOPA ? is about destroying the Internet as we know it. Turning the clock back really is the only way of preserving copyright’s 18th century approach to controlling copies.

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Comments on “Which Causes More Harm: Copyright Or Patents?”

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IronM@sk (profile) says:

Re: Who does society more good: content producers or pirates?

…society will NEVER get anything from pirates.

Society got rapid, cheap and efficient dissemination of content while traditional gatekeepers tried to make a fist full of sand and restrict and extort customers with physical world prices and gates for abundant products. Just saying.

Anonymous Coward says:

Re: Who does society more good: content producers or pirates?

While I hate to agree with your generalizations here, what has your comment got to do with the question:
Which causes more harm Copyright or Pirates?

I feel that copyright, which was initially a reasonable thing, is no longer reasonable and due to it’s length of enforcement, hurts innovation and as such society.

The sooner I can use your widget to make my thingy without the additional cost of copyright, allows me to charge less for my product. I’ve seen us all agree on TD that nothing is created out of thin air, except maybe the original idea.

Do Pirates cause harm. Yes, I think so. Because of pirate activity, DRM was invented, harming the honest consumer that paid for that product. Also, some perceived loss in sales (I’m no expert on this so I cannot debate on how much “harm” is caused by “lost” sales.

Anyway, to keep it brief, I hate to admit I agree with your generalizations, but I think in your haste to add a emotional comment, you missed the point of the question.

Anonymous Coward says:

I would say that your supposition that copyright law keeps getting worse ignores pretty much half of what has happened in the last 30 years or so.

Massive extension of fair use, and the arrival of DMCA and the “no fault infringement” 512 C, which pretty much spawed web 2.0 are two good examples where copyright didn’t get “worse”, at least if you are on that side of the game.

Extension at the end is comparatively meaningless when weighed against what has happened in the DMCA world alone.

John Doe says:

Re: Re:

Extension at the end is comparatively meaningless when weighed against what has happened in the DMCA world alone.

Says you. Extending copyright beyond the life of the creator goes completely against the idea behind copyright. Dead men don’t testify and they don’t create new content. Well, unless you count fertilizer as content.

Anonymous Coward says:

Re: Re: Re:

We are talking harm here. Is the “long tail” end of a copyright that significant, when compares to a patent? Is adding 10 years (or 10% on the end of a copyright) the same as granting a patent extension on meds with a slight modification granting them another term (100% increase)?

Considering that we are all as likely dead as the authors of current material when it comes out of copyright, does 95 years or 90 years or 75 years truly make a difference for us?

John Doe says:

Re: Re: Re: Re:

Yes, extension is a problem when you consider it use to be 28 years and you had to register to get it. Then you could add another 28 years if you re-registered. So that means material that came out up until I was 16 years old could now be public domain. Heck, a lot of material may have always been public domain because it wasn’t registered in the first place. So yes, extension of copyright is a big problem.

Anonymous Coward says:

Re: Re: Re:2 Re:

John, without looking hard, without looking it up, can you (a) name any of that content, and (b) indicate your last use of it.

My feeling is that I doubt you can answer (a) without consulting Google or other, and (b) will almost certainly be “I can’t remember, it’s been a long time”.

So please once again explain to me the actual harm, not the theoretical.

Atkray (profile) says:

Re: Re: Re:3 Re:

I’ll name one, I read an awesome story in Omni magazine when I was growing up. a few months ago I went looking for it. No luck.
It may or may not be available behind a paywall and it appears that it is included in a compilation of the author’s short stories that sells for $20 + 10 shipping.

Consequence… I didn’t reread it or pass it on to my kids and I got mad enough about it that I won’t even mention the name of it here.

Stephan Kinsella (profile) says:

Re: Re:

“Massive extension of fair use, and the arrival of DMCA and the “no fault infringement” 512 C, which pretty much spawed web 2.0 are two good examples where copyright didn’t get “worse”, at least if you are on that side of the game.”

Massive extension of fair use? Where was that? IT’s still a narrow muddle. ANd the DMCA ADDED offenses, e.g. prohibitions agianst possession of anti-circumvention technology (i.e. “computers”).

“Extension at the end is comparatively meaningless”

no offense, hundreds of thousands of orphaned works.

Anonymous Coward says:

Re: Re: Re:

The Betamax / VCR decision by itself alone was one of the largest extensions and legalizations of actions that were not previously clearly “fair use”, and that does include in some ways the ability to take your recorded tape and play it at a friends house.

That one extension of fair use trickles down and shows itself as the TiVo / DVR thing, which is a significant part of the way many people now watch TV.

That by itself is such a huge thing, that a 10 year extension of copyright pales next to it.

Anonymous Coward says:

Re: Re:

“Massive extension of fair use”

Yes, make things up why don’t you.

“Massive extension of fair use, and the arrival of DMCA and the “no fault infringement” 512 C, which pretty much spawed web 2.0 are two good examples where copyright didn’t get “worse”, at least if you are on that side of the game.”

As has already been said, the DMCA didn’t make copy protection laws any better than what they were before. It only made them worse by expanding their scope and it included some exemptions against the expansions that it adds. That’s not an example of making previous law better.

The DMCA was passed because the MPAA/RIAA/etc… wanted it passed, and they wanted it passed for the same reason that they want/lobbied for copy protection lengths to last so long, because it makes the laws worse. The safe harbors were included to limit the DMCA’s expansion and they were included because the tech industry wanted them included.

hytre64 (profile) says:

Re: Re: Copyright Or Patents?

Patents do NOT hold back medical technology. They actually encourage private investment in developing new technology. What company would be willing to invest $100M in developing and getting FDA approval for the technology to quickly and efficiently screen for HIV, if another company can simply buy your machine, reverse engineer it, and bring a knock-off to market for only $1M? By allowing the companies a limited time monopoly (typically 7 years by the time they get all of the development, testing, and manufacturing facility approval), they are allowed to recoup their costs, and make enough profit so that they can invest in developing more technology.

John Fenderson (profile) says:

Re: Re: Re: Copyright Or Patents?

Patents in their original form seem likely to encourage such development as you say. Patents as they are now restrict development. The only businesses in their right minds that will enter certain fields are ones with huge warchests developing things that are surefire hits, because there are broad swaths of technological fields that if you develop anything in, you will get sued.

Innovation involves taking risks on things that might not pay off. In a world where you better be sure you have a winner, there is no true innovation.

Jay (profile) says:

Re: Re: Re: Copyright Or Patents?

Patents DO harm medical technology. There are countless tales of companies that have used patent law to restrict pharmaceutical sales in the US, Canada, Brazil and even India.

You actually have people dying because of the high costs to the market for this patent research, which isn’t all that expensive. The ones that do most of the research are mainly smaller businesses which account for %40 of their budget, whereas most of the larger brands have 40% accounted towards marketing a product, not research. No where does a large company, such as Pfizer for example, have an incentive to allow a smaller company enter the market and drive the cost of a drug to the marginal cost. If a drug is getting cheaper, more people are able to afford it and make it available in a near infinite supply. That’s not creating more technology, that’s stifling others from making better or more efficient medicines.

hytre64 (profile) says:

Re: Re: Re:2 Copyright Or Patents?

Interesting article… Two guys go to two different sources, One says Pharma spends $33B on Marketing, the other says they spend $27B – So obviously, both numbers are wrong and Pharma must spend $60B – the sum of the other two estimates.

Even IF, and I do not concede the point, Pharma spends more on marketing than on research, that does not negate the cost of research that needs to be recouped. Marketing is the means by which they make known to Doctors, Pharmacists, Hospitals,etc. that these drugs are available, effective, what they can be used for, and what possible side effects can be.

Without marketing, these drugs are useless, as the persons at the end of the supply chain won’t know about them, won’t prescribe them, and the patient does not get the benefit.

Jay (profile) says:

Re: Re: Re:3 Copyright Or Patents?

The evidence is against you in this endeavor.

The marketing isn’t what helps the people. In fact, that keeps the prices higher. Patents on medicines is costing innovation as evidenced by David Levine:

Some of the giants spend as much as four times on marketing as they do on research and development. How do these companies market their products? Most of the money goes to “scientifically convincing” the medical profession to prescribe patented products. How? Well, for example, by inviting doctors and their families to week-long conferences in exclusive resorts, where two hours are for a marketing presentation (the “medical symposium”) and the rest for (all-included) leisure. A spectacular – but hardly unique – example of the level of corruption is the conviction of Pfizer for encouraging doctors to bill the government for drugs they were provided for free. These practices not only raise the cost of drugs, but corrode trust in the medical profession.

Let’s also question why the established makers of a drug can pay off competitors to keep the price artificially high.

When even the GAO has said that newer drugs are being stifled, you have to question those motives. Somehow, the marketing angle doesn’t seem quite that expensive if unnecessary lobbying expenditures could be taken away.

6 says:

“The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition. “

MMMMMmmmmm, idk brosky. There are some practicioners in the useful arts that still are pushing things forwards and not just filing patents on ephemeral ideas. These are the people that make your next computer etc. and it is pretty hard to say with a straight face that giving them a right to exclude others for a few years after they invented it (especially with an injunction being hard to get) is really holding back progress or what have you. Indeed, most big manufacturers are notoriously known for trampling right over top of IP. So it can’t be as bad as your qq indicates.

Now, in various arenas outside the useful arts, such as software the story might be a bit different…

PrometheeFeu (profile) says:

I vote patents. While it is true that copyright is painful, it is relatively easy to steer clear of it. Just don’t copy anything. On the other hand, you can infringe on patents without ever knowing. Furthermore, there is plenty of free culture to go around and so giving up on the consumption of much of copyrighted content is very much feasible. But patents kill people by denying them access to medicine. They destroy companies which infringe on patents without knowing so. Overall, I would say the evils of patents are much worst than the already horrible list of copyright’s evils.

Anonymous Coward says:

Re: Re: Re:

and service providers can also include restaurants and other venues that want to host independent performers.

Copy protection laws enable collection societies to either force them to pay ridiculous fees, under the pretext that someone ‘might’ infringe, and those costs will get passed back down onto consumers, or it will deter them from hosting independent performers, which is bad for content creators and performers, it’s bad for employment, it’s bad for consumers, and it’s bad for the economy.

Anonymous Coward says:

Patents do far more harm in 17 years than copyright does in 100. Yeah, it means copyrighted works are locked up in 100 years but copyrights cover very specific works. There have been attempts to claim copyright infringement because two works have shared similar elements but they’ve been struck down. There are also a ton of fair use exceptions, the biggest being parody works. As an example, JK Rowling can copyright everything to do with Harry Potter and fight tooth-and-nail against infringements of those copyrights but she can’t sue someone simply for making another series about teenage wizards because she doesn’t own those ideas, just the specific execution of it.

On the other hand, patent laws do far more damage because inventions build up on each other in a way where it’s next to impossible to make something meaningful without infringing on a patent that someone else has filed for. Thanks to the US patent system, independent inventions, prior art and fair use do not realistically exist. So unlike with copyrights, you can definitely patent broad ideas and sue the pants off of anyone who infringes. If you want to invent something you have to licenses the patents for anything your invention might do, and due to the nature of invention, this is compounded over and over again. Have an idea for a new type of touch interface? Five thousand patents to license. Someone likes your interface idea and wants to adapt it for an interactive game? They have to not only license from you but from everyone you licensed from. The costs multiply. The 17-year period doesn’t benefit anyone because of how much innovation happens over 17 years. Look at the state of modern technology in 1994 and compare it to today.

So no, copyright doesn’t do more harm simply because it lasts longer because the harm done by patents is much, much worse in the shorter period it has.

Anonymous Coward says:

Re: Re:

You must live in a strange binary world where everything is either black or white. Right or wrong. True or false.

Get this: saying “This is causing harm. We should analyse it and fix it” does not equal “We should destroy this” or “I’m against this”. There is a middle ground position, of those that think that things are broken but can still be fixed (although, I, personally, see no value in patents, even though I am a software developer/engineer).

Comboman (profile) says:

Why patent terms haven't been extended

I suspect the reason patent terms haven’t been extended while copyright terms have is simply that they have a shorter useful lifespan. A painting or novel or song from 100 years ago is still valuable today in it’s original form. A patent from 17 years ago (that’s 1994, think MS-DOS and VCRs) is useless in it’s original form (though it might become the basis for some new technology to build upon once the patent expires).

TimothyAWiseman (profile) says:

Re: Why patent terms haven't been extended

That is reasonable, but I do not think the facts support it.

Looking at copyright, while some creative works like paintings retain their value a hundred years later, the vast majority don’t. The vast majority will see all of their commercial value depleted in the first few years, and part of that value is generally freshness, which fades fast.

As for patents, many (especially those that are extremely broad) would still remain valuable today. While new bells and whistles kept being added, the core workings of the land-line telephone remained the same since the first commercial telephone to now. We finally have things like cellphones which are truly supplanting them, but even then a lot of traditional telephones still use those basic principles.

For that matter, John Barber received a patent on turbinesin 1791. While they have certainly evolved since then, they still use many of the same principles even now, and much of their evolution really was evolution based on older designs. If that patent was still in force (and in force in American since that was granted in Britain), it would be likely that the Hoover Dam would be infringing.

Aliasundercover says:

Patents Are Broken

Patent law is broken to its very core because it preempts independent work. The guiding principle which allows people to share the Earth in peace is live and let live. My success and happiness does not depend on pushing you down.

Were patent infringement to depend on showing knowledge of the invention actually derived from the inventor’s patent they could pass this test. In that case we could pay the inventor to use their invention or go on our merry way none the poorer. Instead what we have is a government enforced monopoly to all actions resembling the patent.

The most profitable patents are the ones which everyone who cares invents on their own. It is rare for patent licenses to come with technical assistance practicing the patent. Look at all the lawsuits and see how rare actual copying is. The big money and power comes from patents on things which everyone does because everyone who wanted to solve that problem found similar solutions. They found similar solutions because the world works the way it works and once people got to work on the problem they found the same answers.

Actual invention through history shows most of the big breakthroughs came at the same time from multiple people. It happened this way because advances all depend having the starting tools and starting knowledge to approach the problem at all. Once those are available many people find the answers. All who do should be able to use their knowledge. We should be able to get practical knowledge from anyone who found it, not just the first to the patent office.

I am all for giving a limited monopoly if the reason we know how to do something comes from the inventor and we would not be able to do it if they had not showed us. All it takes for patent law to be reasonable and ethical is require showing that as part of proving infringement.

TimothyAWiseman (profile) says:

I think this essay goes too far

I have only read the portions quoted here, but I think this essay may go too far. I see a value in copyrights and patents where this essay seems to see none and gives no consideration to the possibility they have any.

Now of course, my comment should not be taken too far. I think copyrights and patents in their current incarnation largely cause more problems for society than they solve. Copyright terms are far too long, fair use ought to be much stronger, and it is far too easy to get patents which are ridiculously broad and do not actually disclose the innovation (which was the main point of the original British Statute of Monopolies). I think our copyright and patent systems both need to be dramatically reformed in favor of more openness.

Yet, this article seems to say that because their current incarnation is burdensome and unworkable that it should be abolished entirely. I think that may be going a bit too far personally, even if I am sympathetic to the specific claims of the harm done by our current system.

splork says:

Patent extension.

“It’s interesting that there hasn’t been the same push to lengthen the patent term in the same way as for copyright.”

Actually, AFAIK it’s underway in developing countries like malaysia – the USA has been quietly leaning on them to e.g. get them to allow a second 20-year span of patent monopoly after the first on already-patented stuff in bilateral “free” trade agreements (patent monopolies being the exact opposite of free trade, scumbag americans…). If they get that through in the obscure countries, then watch out for the “international harmonization” to the lengthened 40-year term. Then lather, rinse, repeat, like copyright monopolies.


Darryl says:

There are many Types of Intellectual Property, and all of them are bad

There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding.

So ‘what you know’ is “bad”, and more and more people are knowing more, knowledge is expanding !!!! go figure.

“There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding.”

Is a statement that is an expression of the authors Intellectual Property.

How can what you know be either good or bad ? or how is it possible that “what you DO NOT KNOW” can be either good or bad ??

Knowledge in itself is not either “good” or “bad” it is what it is, it might be the knowledge of the formula for Coca-cola.

It’s not either good or bad, the IP is not good or bad.

Knowledge is neither good or bad, it is what you KNOW, you might know about murders, you know the murders are “bad” but the knowledge of them is neither good or bad in itself.

So if you start with an incorrect and false premise then you will end up with an equally false conclusion.

Anonymous Coward says:

There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding. The worst two by far are patent and copyright.

Patents and copyright are not Intellectual Property as such, but patents and copyright are a FRAMEWORK for which forms of IP can exist.

Patents are not IP.

A Patent is IP

Copyright is not IP
I copyrighted work IS IP..

It is the same as saying “There are many different types of cars, and all of them are bad”.

“cars” are not “a type of car”.

But to open a statement saying “There are many different types of KNOWLEDGE, and ALL OF THEM ARE BAD”.

Is quite a stupid statement to make, considering it is based on the very same IP the statement is made against.

(it is a product of the authors IP).

Anonymous Coward says:

Perhaps copyright is more valuable profit-wise.

With patents there is an implementation gap: you have to actually manufacture something to embody the idea/design/whatever. But with copyright it is almost literally a license to print money: unit costs are much lower. And in a digitally-networked-enabled world that advantage for copyright is even greater.

So money spent on buying laws from politicians can yield a higher return for copyright than patent.

jsf (profile) says:

Patents probably have the higher dollar cost. Current copyright has a much higher social cost. In particular copyright is currently being inforced and furture legislation is focused on censorship and the restriction of civil rights. So I think that copyright as it currently being pursued is much worse. I’ll gladly pay a bit of extra money in exchange for civil rights.

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