Why Copyright & Patent Laws Go Against How We Create

from the in-ten-minutes dept

We’ve written about Kirby Ferguson many times before. The filmmaker behind the absolutely awesome Everything Is A Remix series of videos, has just posted a 10 minute TED talk he recently did, which you absolutely should watch. It very simply explains how the nature of both creativity and innovation revolves around building on the works of others, but that both copyright and patent laws are based on the exact opposite belief — that creativity and innovation springs wholly new from one’s head, and thus deserves some form of property rights. Whatever you do, find 10 minutes to watch this video:

It goes through how nearly all of Bob Dylan’s early songs were actually copies of others’ songs (which is funny because Bob Dylan is a name that is frequently cited by copyright maximalists as an example of the necessity of copyright law).
And it’s not just copyright that he talks about, but patents, highlighting Steve Jobs’ hypocrisy, talking at one time about how it’s best to take the best ideas of others, but then also going ballistic about Google copying aspects of iOS in Android. He also points out how Jobs lied about claiming to have invented multi-touch, by showing Jeff Han’s famous TED demo of multi-touch technology a year before the iPhone launched. And in that video, Han admits that multi-touch has been around for decades.
The key point he makes in the end is that the system is broken because of the combination of a few factors that conflict with the fact that everything is a remix. When you mix laws that fundamentally treat creative works as property, with the massive rewards and huge legal fees associated with court cases, combined with the cognitive bias people have against others copying themselves (with a complete blindness for the fact that they are always copying others), you have a system that fundamentally does not work and cannot work.

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Comments on “Why Copyright & Patent Laws Go Against How We Create”

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80 Comments
Anonymous Coward says:

Re: Re: Re: Re:

“The very groups screaming the loudest for copyright protection are the very groups duplicating and photocopying the most i.e. Disney et al.”

I am sorry, can you please point me any animated feature movie that Disney duplicated? You know, took frames from, took the character art from, etc?

Can you show me where they took stories that were NOT in the public domain?

Waiting… don’t hurt yourself.

Anonymous Coward says:

Re: Re: Re:3 Re:

“So you’re admitting that Walt Disney copied from the works of others? That the ideas for his movies did *not* spring forth entirely from his own mind?

What are you, some low-life pirate apologist?”

it’s so hard to deal with narrow minded children.

There is a big difference between “inspired from” and “copy of”. We are all inspired by what we have seen, heard, and experienced in life. However, there is a difference between using a finished product as part of your own, compared to just being inspired by it.

If you cannot understand the basic concept, it’s pretty hard to move forward.

Franklin G Ryzzo (profile) says:

Re: Re: Re:

It seems that you are missing the concept behind a transformative work. Would you consider the Beastie Boys Paul’s Boutique to be simply copying? Are you implying that this heavily sampled album was simply a duplication that added nothing to culture and simply stole from the work of others?

Sampling is not the same as copying when you are making a new work, even if that work is made up from the composite pieces of prior works. This is the definition of building upon culture, and it is a tragedy that this is no longer considered simple fair use.

Greevar (profile) says:

Re: Re: Re:

“A song made up for samples isn’t imitation, it’s duplication.”

That’s a load of horseshit. All that the media conglomerates do is make “new” works from samples. Look at Disney, everything they sell is blatant sampling that has been remixed. Everything, and I mean everything, is made up from everything that came before. The very act of creation relies on this very fact. If there was no prior to draw from, there would be no new art.

This whole idea of property, in general (not just IP), is a common mental illness that too many people suffer from. The truth is, you can purchase and acquire all the natural wealth of the world; but once you’re gone (and by extension, when we’re all gone), it all goes back to where it came from. You buy nothing, you own nothing, everything is borrowed until such a time that you must give it back to the earth. So why are you putting so much effort and attachment into acquisition when it nets you nothing?

Anonymous Coward says:

Re: Re: Re:4 Re:

“YOU ARE A COMMIE”

OMG, is that you, mom?

Seriously, that sounds exactly what my 84 year old mother sounds like, whenever anyone disagrees with her. She belongs to an era when being a commie was the single worst thing you could possibly be, and the single worst thing you could ever call someone. Of course, her generation also shrank from the dreaded “F” bomb, a word the rest of us toss around pretty much daily these days. Things change.

I think being a “corporatist” is gonna be the next “commie.” They are much, much more dangerous to our American way of life at this point than the silly, ol’ commies.

That One Guy (profile) says:

Re: Re:

Assuming you’re right, you’re point is still off, as all that advancement is in spite of the whole copyright fiasco, not because of it.

As an example, imagine how much more would have been invented/created if every startup company didn’t have to worry about being sued out of existence by companies who exist for no other reason but to destroy startups via patent trolling.

saulgoode (profile) says:

Re: Re:

It’s another guy falling for the idea that patents and copyrights are such wide monopolies, that it stops us from moving forward. Too bad that history says that mankind has moved forward more in the last 30 years than the last 100.

And what is the single greatest advancement that mankind has accomplished in the last 30 years?

The Internet.

And what role did patents and copyrights play in development of The Internet?

The basic infrastructure, being funded by the government(s), was placed and remains in the public domain.

The concept and implementation of the World-Wide Web was never patented and the W3C had and has a policy which refuses adoption of any standard unless any requisite patents are licensed on a royalty-free basis.

Furthermore, nearly all implementations of web servers and browsers were either licensed permissively, shareware, or free for noncommercial, academic, or testing purposes. Source code was commonly made available.

In short, the greatest invention of the last 30 years (if not the last 3000) was neither inspired by nor relied upon patents or copyrights. Quite the opposite, the creators of the Internet often had to explicitly circumvent the extant IP regimes in order to see it developed and adopted.

Anonymous Coward says:

Re: Re:

Patent litigation slows down the industry, and the increasing legal actions against each players are not helping anyone.

The fact that the past 30 years there has been more technological evolution than in the past 100 or 1000 years has nothing to do with the existence of patents. It’s a completely different phenomena that’s also called the Law of Accelerated Returns, that says things are moving ever faster. So in the next 10 years we’ll be moving faster than in the last 10, then in the next after that even faster, and so on.

Anonymous Coward says:

Re: Re:

Patent litigation slows down the industry, and the increasing legal actions against each player are not helping anyone.

The fact that the past 30 years there has been more technological evolution than in the past 100 or 1000 years has nothing to do with the existence of patents. It’s a completely different phenomena that’s also called the Law of Accelerated Returns, that says things are moving ever faster. So in the next 10 years we’ll be moving faster than in the last 10, then in the next after that even faster, and so on.

JEDIDIAH says:

Re: Fixating on the wrong part of the last 30 years

The pace of progress in the last 30 years is due to the failure of Apple to successfully claim ownership of the GUI.

Otherwise you might be stuck with MS-DOS.

Ownership of invention necessarily slows down progress. Apple has done a good job of banning some of it’s modern rivals already. If they get what they want, it will be 20 years before Samsung et al can move things forward again.

Trying to fixate on the last 30 years ignores the fact that patents have been greatly expanded in the last 10.

John Fenderson (profile) says:

Re: Re: Fixating on the wrong part of the last 30 years

The pace of progress in the last 30 years is due to the failure of Apple to successfully claim ownership of the GUI.

More properly, it’s the failure of Xerox, not Apple. Or, to be really picky about it, the very first multi-panel window-based GUI was made in the mid-’50s by the US Air Force before even Xerox, named SAGE.

ld says:

Re: Re:

Even Henry Ford had to deal with patent trolls, he defeated the Seldon patent that was milking the auto industry.
Patents are intended to give the inventor control of their invention for a period of time so they make a profit from it and cover their expenses, but after that time (in the past it was 15 years max) it is supposed to go into the public domain so others may grow and expand upon that idea and use it other inventions. It is the end price of the legal protection a patent offers, fostering further innovation. A patent is not supposed to be granted for obvious ideas or ideas that are not new to the field they are in. “design” patents like Apple’s for a rectangle with a screen to replace a pad of paper do not meet the test and yet are being issued, they are in direct opposition to the purpose of patents. The “last 30 years” have actually been the fruits of the decades before that, all the way back to a 1925 Canadian patent for a transistor design that was never built but was later studied by the Bell labs bunch that invented the first working one in the 1940’s. Under some of the patent law and treaty garbage going on these days, the extensions and various weirdness being allowed and encouraged by patent troll companies that invent nothing except more legal fees, one of them could have bought this Canadian patent for a few bucks and used it as leverage against Bell Labs to squeeze them. The simple existence of such a patent today discourages research work of the type they were doing then. Patents are a balance between encouraging inventors and fostering innovation through information sharing, the patent trolls are unbalancing the system.

Anonymous Coward says:

Not many people realise this but the problem solving area of the neandethal’s brain was much larger than ours. They where stronger and smarter than us. Even now can you look around the world and declare that humans are smart? We are not very intelligent we are not very strong and yet we have thrived when seemingly fitter species withered. We have spread to every couner of the world and multiplied.

The neandethals were better problem solvers than us but we were better comunicators. We could build on the ideas of others, coordinate and cooperate on a level nothing else on the planet could match. There’s only so much good a genius mind can do when it can’t share the concepts it creates. We humans aren’t special because we’re intelligent, we’re special because we comunicate. Every single new development in comunications has had a massive culture and social shift to accompany it.

There are few great discoveries we have made that are the work of single mind and fewer still not based on the discoveries that have come before it. Few inventions are independant of the inventions before it. Everything we have achieved as species is not because we are an intelligent people, no it’s because we build on everything that came before.

Anything that penalizes building on what we already have penalizes progress.
Anything that stifles comunication in any way is unacceptable because to comunicate is to be human.

Mason Wheeler (profile) says:

What do men consider the most valuable of talents? One mentioned artistic ability, as you so keenly guessed. Another chose great intellect. The final chose the talent to invent, the ability to design and create marvelous devices. Aesthetic genius, invention, acumen, creativity. Noble ideals indeed. Most men would pick one of those, if given a choice, and name them the greatest of talents. What beautiful liars we are. In this, as in all things, our actions give us away.

If an artist creates a work of powerful beauty – using new and innovative techniques – she will be lauded as a master, and will launch a new movement in aesthetics. Yet what if another, working independently with that exact same level of skill, were to make the same accomplishments the very next month? Would she find similar acclaim? No. She?d be called derivative.

Intellect. If a great thinker develops a new theory of mathematics, science, or philosophy, we will name him wise. We will sit at his feet and learn, and will record his name in history for thousands upon thousands to revere. But what if another man determines the same theory on his own, then delays in publishing his results by a mere week? Will he be remembered for his greatness? No. He will be forgotten.

Invention. A woman builds a new design of great worth – some fabrial or feat of engineering. She will be known as an innovator. But if someone with the same talent creates the same design a year later – not realizing it has already been crafted – will she be rewarded for her creativity? No. She?ll be called a copier and a forger.

And so, in the end, what must we determine? Is it the intellect of a genius that we revere? If it were their artistry, the beauty of their mind, would we not laud it regardless of whether we?d seen their product before? But we don?t. Given two weeks of artistic majesty, otherwise weighted equally, we will give greater acclaim to the one who did it first. It doesn?t matter what you create. It matters what you create before anyone else. So it?s not the beauty itself we admire. It?s not the force of intellect. It?s not invention, aesthetics, or capacity itself. The greatest talent that we think a man can have? Seems to me that it must be nothing more than novelty.

? Wit, The Way of Kings, Brandon Sanderson

Patent Agent says:

Inside Opinion

I want all of you individuals carrying on this conversation to understand one thing about copyright and one thing about patents.

With regard to copyright, the test for infringement is substantial similarity. Obviously direct copying is substantially similar. Aside from fair use, there are many things which are pretty much ignored as far as copying goes. These “scenes a faire” as they are called in copyright law, are elements typical to a particular form of art that are expected and permissible to borrow in light of the specific genre. For example, star-crossed lovers in a musical or certain chords in certain genres of music. Given that wiggle room one can build off the creation of others and create non-infringing art. BONUS: Independent creation of the same thing is not infringement.

With regard to patent it is interesting to note that a person can patent a novel, non-obvious improvement on an existing invention and gain exclusive right over everyone, including the inventor of the non-improved invention. This usually results in a license from either the original inventor or the improver and the inventor/society win. In other words, if you think you’ve got a good idea, do a patent search and then do better.

I think it is ignorant to say that intellectual property law stifles creativity in general. There are many criticisms to the system but the general purpose is to promote disclosure rather than secrecy. If people have a guarantee of exclusivity, then they will produce with the knowledge they will be compensated and the public benefits from their creations.

Anonymous Coward says:

“…but that both copyright and patent laws are based on the exact opposite belief…”

Wrong, but it does tend to strike a responsive chord with persons unfamiliar with the underlying basis of both copyright and patent law. Neither may be relied upon to secure rights in ideas per se. Copyright requires original expression, with such expression in the US being subject to certain built in first Amendment limitations. Patent law requires a new, useful, and non-obvious invention that is measured against the prior art. The speaker makes nary a mention of these crucial and governing limitations, and to this extent he misleads his audiences.

staff says:

more dissembling by Masnick

It is not innovation that patents hinder, but the theft of.

Not all competition is fair. When the courts permit a larger competitor to use an invention without the inventor’s permission, it’s like having a duel where your challenger has your gun and all the bullets. Think again…or just think!

It?s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I?ll show you a weak economy and high unemployment.

Masnick and his monkeys have an unreported conflict of interest-
https://www.insightcommunity.com/cases.php?n=10&pg=1

They sell blog filler and “insights” to major corporations including MS, HP, IBM etc. who just happen to be some of the world?s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are patent system saboteurs receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don?t have any.

Vic Kley says:

Ferguson is wrong, fits right in with Masnik

Patents almost always are based on elements that are pre-existing.

Assembled in a unique and non-obvious way to solve one or more problems they are not in any way inevitable.

The very best patents once understood are compellingly obvious IN HINDSIGHT ONLY.

As I have for Masnik I took a quick look on google.com/patents for Mr. Ferguson, and like Masnik, “Kirby Ferguson” doesn’t have any patents or any idea what it takes to invent anything besides the B.S. he spouts.

PenandInk777 says:

Is there a phrase known as Patent Abuse?

I have a question, how do the U.S. Patent Office keep companies from manipulating their system for just the sake to keep others from making a similar product by using the phrase” we have a patent pending” for over 5 years?

I know that there is always an abuse of a system and how people get around the systems, but for a company (art company that teaches a basic drawing method) to just use this to intimidate others that might make a better product or give the public other choices, for example there are more than one brand of watercolors on the market.

I do understand someone wanting to protect their hard work and make a profit from it before it goes into public domain, but to keep applying for patent pending to keep others away when the patent has been rejected and with a final rejected.

So, what methods do the U.S. Patent Office have against this kind of usages. Last question when a patent is rejected when do that company have to stop using “we have a patent pending.” Also, how long does it take a drawing methods of art from (Like a book on step-by-step how to draw a pattern) application to go through the patent process.

Last, is it common for company to keep submit patent that keep getting reject over and over and do you know off the top of your head the highest number of a company patent was rejected. (I am not asking for that company name).

Thanks
And if anyone can answer my questions I do appreciate it or if not can you share where I can get these answers from.

Patent Agent says:

Re: Is there a phrase known as Patent Abuse?

A pending patent cannot be enforced. No court will hear it. If people are intimidated it is because they are legitimately going to be infringing if it gets issued.

A patent’s duration lasts from the day it was filed, so it is no use to delay the issuance because while it is pending it is unenforceable.

A patent is no longer pending when it is no longer being examined. That is, when they run out of money for filing request for continued examinations. Like I said, however, the clock is ticking from the moment it is on file so it is best to get it issued.

The time for prosecution for just about anything is about 2 years. 1 year for them to even get to it, and another of back and forth with the examiner.

Before the law was changed to count the term of the patent from filing, rather than issuance, one attorney and inventor kept a patent in prosecution for 39 years waiting for technology to catch up. Then they made millions of dollars off of it when it finally issued. For this reason, patent’s terms last from filing rather than issuance.

All of this is in the MPEP at the USPTO website. Albeit difficult to browse, you can find just about any answer in there.

PenandInk777 says:

Good Question Anonymous Coward

Good question, but I am a little slow in thinking so let me get back to you because at the moment I am working on my reply to Patent Agent. You see I am new to Techdirt and also I am a D+ student in grammar usages.

Don’t get me wrong I am not putting myself down, but my intelligent come shining through if I have to defend someone or something that is too weak to defend itself. My husband tell me why can you do what you do for others for yourself.

Also, I have learned knowing the truth or fact (facts can change) is more important then being right, however I have also learned that the truth is in the eye of the beholder . . . . .

Have a great day!

Penandink777

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