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Defenders of patents commonly say they are against innovators' ideas being "stolen" or "plagiarized." This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.
Under copyright law, someone who independently creates an original work similar to another author's original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author's work. Thus, for example, a copyright defendant can try to show he never had access to the other's work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one's original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make "derivative works".) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1's copyright, since author 2 did not copy anything.
Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference--one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law--that it simply prevents people from copying others' ideas.
Not so. To prove copyright infringement you have to show an actual copying of the work. But to prove patent infringement, the patentee need only prove that the accused infringer makes, uses, sells, or offers to sell, or imports the patented invention--that is, a device or method that is described in at least one of the "claims" of the patent. It doesn't matter if the infringer invented it independently. It doesn't even matter if the infringer invented it before the patentee. Got that? Someone who previously invented the same thing and is using the idea in secret can actually be liable for infringing the patent granted to the second inventor. If a later person independently invents the same idea that was previously patented by another, this is also no defense. Prior use or independent invention are not a defense.
Obviously, it should be. The Intellectual Property and Communications Omnibus Reform Act of 1999 did add a limited first inventor (prior user) defense for prior commercial users of "business methods"--see 35 U.S.C. § 273--but not a general one. Justice obviously requires that, at the very least, a general independent inventor defense be added to the patent system. To blunt its sharp, unjust edges. In particular, a defense should be provided for those who are prior users of, or who independently invent, an invention patented by someone else. This would greatly reduce the cost of the patent system since one difficulty faced by companies is that they do not know what patents they might infringe. If someone learns of an invention from another's patent, at least they are aware of the risk and can possibly approach the patentee for a license. But quite often a company independently comes up with various designs and processes while developing a product, which designs and processes had been previously patented by someone else. If the goal of patent law is to reward invention, it should be sufficient to permit patentees to sue people who actually learned of the idea from the patent just as copyright infringement exists when someone reproduced another's work but not when it is independently created. A broad prior user right defense should be established, as well as an independent inventor defense that even a later inventor could use. (Pending patent reform legislation originally proposed to broaden the existing prior user defense by eliminating the business method patent limitation so that users of all types of inventions would have been able to use the defense, but this was removed from later versions of the bill. The Council on Foreign Relations study, "Reforming the U.S. Patent System: Getting the Incentives Right," recommends a prior-user right be adopted; James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton University Press, 2008), recommend an independent inventor defense--see the Introduction.)
Even pro-IP libertarians usually reluctantly agree that independent invention should be a defense, once you dispel their ignorance about the system they for some reason support (well, the reason is not that hard to see--it's lingering state-indoctrination, or some form of statism such as minarchism, or some unprincipled, incoherent grounds like utilitarianism). This is one of the aspects of arguing IP policy that infuriates me. Whenever you point one of these things out to a libertarian defender of IP, he will usually say, "well, I don't support that." So you say, "well, what do you support?" The answer is basically, "Hey, I'm not a patent lawyer; that's just a detail." I.e., they are in favor of some ideal patent system; not the current, statist one (though they oppose abolishing it or weaking it!), but a "libertarian" one (as if one could imagine a patent system concocted by decentralized courts without legislative power! [on this see my Legislation and the Discovery of Law in a Free Society]). In other words, they don't know what in the heck they are even talking about. They can't describe the system they favor, and are not willing to abandon a statist system they admit is unjust.
And they seem blithely unaware that removing the obvious, "problematic" features of patent law would largely gut it, resulting in an emaciated, weak patent system--a change that would be attacked by mainstream IP advocates as "harming innovation," in the same way that these libertarian patenteers criticize us patent abolitionists. Libertarian IP advocates are schizophrenic. They shy away from the obvious injustices of patent law, and would favor reforms that most normal IP proponents would recoil in horror from; while they try to maintain the facade that they support IP because they support innovation and inventors' "rights", even though they cannot tell you what their ideal libertarian patent system even looks like.
Don't believe me that providing an (obviously just) "independent inventor" defense would gut the patent system? I've been practicing patent law since 1993. I have lost count of the number of times I've been called upon by a client to analyze a patent that has come to the client's attention, that concerns it. What typically happens is this. Company A is producing or developing a product. They hear a rumour from a customer "Hey, I think that Company B has a patent on something similar to this." Or, they get a letter from Company B saying, "Hi, we attach a copy of our latest patent for your interest! If you want to discuss licensing, give us a call! declaratory judgment action against us, please! We wouldn't want to give you cause to sue us first, robbing us of the chance to choose the venue! Love, Company B". So Company A calls me, says, "can you take a look at this patent? Are we in trouble? Are we infringing? Is the patent valid? If so, can we change our design to get around it? We'll be happy to pay your $30k fee for an analysis and opinion." Such a productive use of precious capital!
Now, what I want to emphasize here is that: in all the umpteen times I've done this over the last 15 or so years, I have never, ever, even once, seen a case where the client's engineers copied the patented invention. In every case that I can recall, the company designed its product on its own--using available technology, to meet the market demands--and then only later were made aware of some patent buried among millions in the bowels of the patent office. Then they panic, worrying that they might be shut down by an injunction by a competitor, or sued into the ground (for examples see my Radical Patent Reform Is Not on the Way).
No doubt in some cases there is copying. An entrepreneur espies a popular product, and makes a similar one; lo and behold, it turns out there were some patents, and so he is sued. Still unjust--what is wrong with emulation, competition, and learning?!--but still, sure, in some cases, there is copying. But there can be no doubt that millions and millions of dollars are lost on attorneys' fees alone, not to mention the cost of changing designs to avoid infringement, or foregoing development in a field crowded with patents or rife with uncertainty, in cases where the victim was not copying or even learning anything from the company that just happens to hold a red-ribbon adorned manilla certificate issued by a technocratic bureaucracy of the criminal central state. Add an independent inventor defense, and a lot of the work done by lawyers like me would dry up--meaning a more efficient economy, lower priced goods, more competition and innovation, more innovative freedom, more breathing room.
This is a type of reform that most libertarian patent advocates, in my experience, begrudgingly agree to. And it would gut the patent system. The caterwauling of the patent bar, deprived of half their federal law-sponsored teats, would reach a deafening crescendo. Large companies that rely on the inchoate threat of patent lawsuits to squelch competition and keep small innovators down, would increase their bribes to DC, fearful of barriers to entry falling.
So why not come all the way with us, my fellow libertarians? You see the injustices of the patent system, and usually agree with our concrete criticisms of them. You are not sure of what a good patent system would even look like. The current one is undeniably a mess. And it's just an arbitrary fake-law scheme enacted by an obviously incompetent, evil, illegitimate, and criminal state. Why in the world would a libertarian support this? Besides, by advocating such reforms you are going to be lumped in with us "enemies of innovation" by the vested IP interests. So if you are doing the time, you might as well do the crime.
Cory, Google is not perfect but the attacks on them for attempting this seem to me to be demonizing the wrong party. The problem is copyright law--a state legal system. The state is, as usual, to blame. Why some people are trusting the same state that foists IP law on us to protect is us mystifying. In attacking Google they are allying with the state (see my post Google Digital Library Plan Opposed by German Chancellor), which is the real enemy. I don't see any choice for google to accomplish the quasi-digital libertarian of orphan and other works other than its creative legal-settlement route.
Lohmann writes:
"Nobody likes this "only-for-Google" aspect of the settlement--in fact, Google has said that it would support orphan works legislation that would empower the Registry to make the same deal (or even a better deal) with others who want to use these unclaimed works."
I am not sure I see the concern here--seems to me only someone who cares about copyright would object to this.
"The settlement agreement even has a provision that makes it clear that the UWF can license others "to the extent permitted by applicable law"--what amounts to an "insert orphan works legislation here" invitation."
I'm not sure what is wrong with this. Even partially libertaring orphan works from the confines of copyright law would be good.
"But absent some legislative supplement to the revised Settlement 2.0, it still seems that any other company would have to scan these books, get sued, and hope for a class action settlement. That, of course, is the kind of barrier to entry that any monopolist would envy."
Again, it seems to me that Google is doing it the only way they see possible, given the terrible state regime.
"...But we shouldn't be satisfied with antitrust law here."
This line really bothers me. The EFF and others supposedly concerned with individual rights should recognize the state as the enemy. They should recognize antitrust law is completely unjustified; the real monopoly is the state, which arrogates a true monopoly to itself. This line implies that antitrust law is okay; it's not. It's immoral and unjustified. All antitrust law should be of course abolished.
The Washington Post has a business article today entitled "Crackdown targets counterfeit drugs" which leaves out most of the truth link here. There is no mention that some of these drugs are generic and perfectly legal in the country where they are made. And that the US has for some years stopped enforcing imports of such drugs by individuals. That policy seems to have changed now, if this story is to be credited. However the amount of spam from sellers of such drugs doesn't seem to have abated.
The story begins, "In highly orchestrated raids around the world this week, Interpol officers in Europe, drug agents in the United States and task forces from Sweden to Singapore hunted down counterfeit prescription drugs in an effort to stem a rapidly growing criminal business preying on financially pressed consumers looking for bargains.
"The operation, code-named Pangea, is expected to be disclosed Friday in an effort to put fraudulent businesses on notice that police around the world are fighting back against what has become a $28 million industry in the United States alone." That seems like peanuts compared to the cost of such enforcement operations. And no attempt is made to separate the benefit of the drugs for people who otherwise could not afford treatment. Or the incremental loss to others who use them but must now pay the monopolist's price. For context, note that other news articles report a rise in drug prices of 9% in anticipation of the passage of a health care reform bill. The industry is hardly suffering.
Who is picking the public pocket? The article doesn't say, but the Pharmaceutical Research and Manufacturers of America (PhRMA) is probably behind this, though how a global operation was arranged remains an open question. Maybe we'll find out more later today, as the article promises.
EBay just sold a large portion of Skype after a long legal dispute with Skype's founders. What interested me was the Skype's code evolved from the founders' earlier venture, the file-sharing system, Kazaa. In effect, the experience with the "illegal" Kazaa allowed the founders to develop technology that had a great value, especially for people communicating internationally.
The founders, Niklas Zennstrom and Janus Friis, blocked the sale for a long time on the grounds that EBay violated an agreement not to tamper with the code without their approval. In effect, Ebay acted like a pirate, while the pirates became anti-pirates.
Perhaps someday someone will catalog all the other benefits that that the pirates developed.
I don't know how to break off the post to keep from taking up the entire screen,so here is some background information:
I just came across this older youtube video discussing a six-second drum loop from 1969 that became to basis of hip-hip and the subsequent genres based on sampling, the "Amen Break." The video shows how the lack of enforcement of copyrights allowed new genres to emerge and musical creativity to flourish. Of course, there is a company laying claim to a copyright at some point, of course unrelated to any involved artist.
I wonder how many authors selected the Authors Guild to be there representative. Am i part of something like a class action suit where my representatives oppose my own interest.
(via John Bennett) An article in the New York Times about the patent reform act before Congress. It is held up in a dispute over whether the owner of a patent of a small piece of a product gets to hold up the entire product for blackmail. Not that you would think eliminating this type of blackmail would be controversial...You know, if even the Commerce Secretary realizes the system is broken it probably is. Still Pozen has a point - while it would be best to eliminate the entire awful system, the trivial reforms that are proposed will be a mild improvement. The main problem I suppose, is that the improvement will only be mild, and everyone will be busy congratulating themselves about how they fixed it.
The audit of the AIG bailout is now out link here. Mary Williams Walsh summarizes it here link here.
One can forgive some of the failings in light of the pressure to reach a deal that preserved the financial system. But not all. Once again, one has the feeling that the long arm of the epitome of Wall Street, Goldman Sachs, has produced a "solution" that was very good for it. Examples:
**No real effort was made to get the companies benefiting to take less than the book value of their loans. The Goldman argument that it had successfully hedged its deals with AIG and deserved to be fully compensated is faulted, on grounds that the hedges would not have survived the almost certain meltdown.
**The FED considered itself an AIG creditor rather than a regulator and "could not impose its will on banks but instead asked for voluntary concessions," in contrast to the auto bailout where the terms were crammed down them. Moreover it decided it could not treat foreign banks differently from domestic banks for fear of retaliation.
**Some banks argued that they could not legally take less than the contracted amount unless AIG declared bankruptcy, a long judicial proceeding that had to be avoided.
**The authorities insisted on secrecy to prevent the collapse from spreading but that was mistaken as whenever public funds are spent, the public is entitled to know.
My article 
