Strong opinions, weakly held

The present and future of intellectual property law

Craig Hockenberry warns of the number one threat to small, independent development shops — patent and copyright trolls:

The scary part is that these infringements can happen with any part of our products or websites: things that you’d never imagine being a violation of someone else’s intellectual property. It feels like coding in a mine field.

From our experience, it’s entirely possible that all the revenue for a product can be eaten up by legal fees. After years of pouring your heart and soul into that product, it’s devastating. It makes you question why the hell you’re in the business: when you can’t pay salaries from product sales, there’s no point in building it in the first place.

Can you remember the last time you read a news story that made you thankful for patents or copyright law? I can’t. I had to sit on this post overnight as I thought about whether I was in favor of abolishing the entire intellectual property regime. As it turns out, I’m not. There are three major areas of intellectual property law, patents, trademark, and copyright.

Trademark law has the strongest leg to stand on. It seems pretty clear that people should, for the most part, be able to trust that something with a certain name is produced by the company with that name. Going to the grocery store and seeing shelves of drinks called “Coca Cola” that were produced by different companies would be confusing. And without laws to prevent it, that would certainly happen. Furthermore, it’s easy to see that trademark law is working effectively because companies generally do trademark searches before they name products. Releasing a product with a name that has a trademark conflict is seen as a huge gaffe. That’s a sign of an effective legal regime.

Copyright is horribly abused, and the routine practice of extending copyright indefinitely is incredibly pernicious, but I also think it has value. I don’t think I should be able to launch a site called the Rafeington Post that just publishes the full text of all of the stories from the New York Times that I happen to find interesting. I should be required to give them a light rewrite like that other site does. In a general sense, I should not have to compete with bootlegs of my own work as soon as bootleggers are able to start making copies of it. Again, people who copy others’ work outright understand that they’re in violation of copyright law, even if they don’t care.

I am inclined to argue that patents should go away entirely, with the caveat that I’m not entirely sure how they work in industries other than my own. In software, though, patents are never, to my knowledge, taken into account at any time during the product development process. Patents are generally too opaque to even try to compare to products that are in development. Furthermore, the computer industry is built on imitation. One day, there were no popular phones built entirely around a touch screen interface. Apple came up with the iPhone, and not long after, touch screen phones that looked very, very similar to the iPhone were everywhere. I don’t think that it could be argued that this has hurt consumers. Apple remains incredibly profitable, and mobile phones are evolving rapidly, much to the benefit of users.

People in computing produce the products that they think will be most successful and rely on luck to keep them out of the crosshairs of ruinous patent litigation. Because there are so many patents, and because of the way they are evaluated, there is no way to easily figure out which patents you might violate with a product or how to get around violating those patents. In the end, the application of patent law is completely arbitrary. Given that a system cannot be both just and arbitrary, I come down on the side of eliminating patents entirely, although I suppose I could be convinced otherwise.

In the end, the laws that are meant to protect creativity and innovation instead often stifle them. Cory Doctorow recently reviewed a book that shows that the Beastie Boys’ album Paul’s Boutique would have lost $19.8 million had all of the samples been cleared under today’s regime. And on a more speculative note, Matthew Yglesias also points out that intellectual property laws could in the end be the primary barrier between us and a utopian future.



    I disagree. I think intellectual property laws should simply be eliminated.

    Trademarks: I agree that it is unethical to steal someone else’s name to put on your product. But that is no reason to make it a law. If you need to trust that a product is really by who it says it is by, then free market, non-government entities could be established that keep track of who really produces a given product. For consumers, you don’t have to buy from the liars if you don’t want to. For producers, you would be able to rely on loyal customer base for continued profits.

    Copyright: Again, no reason for this to be a law. For consumers, when you buy something, you just need to make sure some of the profits are going to the people who produced it if you want to make sure things like this continue to get produced. For producers, again, you can develop a loyal customer base to ensure you survive.

    Patents: These simply should not be protected. Anyone can have an idea. The hard work of making it happen is what should be rewarded, not the having of the idea. If you are afraid of your idea being stolen, then develop it in secret.

    There is nothing positive the government does that could not be better replicated in the free market. The fundamental problem is that the government is not subject to the checks of the free market (the checks and balances envisioned by the founders of the US are clearly irrelevant in today’s special interest-driven world). They can and do regularly make terrible laws that stand because people can not easily move to another location with different laws. Intellectual property laws are just one example. —–BEGIN PGP SIGNATURE—– Version: GnuPG v1.4.11 (GNU/Linux)

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  2. Makes you wonder why small independent development shops don’t just pack their bags and leave for Europe, where they should be mostly safe from software patents.

  3. David Platypus Formosa

    July 18, 2011 at 4:42 pm

    Can I suggest “Against intellectual monopolies” a book by a pair of economists who examine the current system and conclude that it has a negative impact on the economy.

  4. I’m not sure that your patent discussion really generalizes. For example, while it’s hard to tell who might have developed some lines of code, or even a sort of approach, it can be pretty clear who invented a physical gizmo, and I think it’s reasonable to reward that innovation with a clean shot at making the thing profitable before the easy copycats swamp you out. However, law structures designed to protect, say, a cotton gin generalize poorly to bits of code or to snippets of DNA and other abstractions that are now being granted patents, and the move to patent things (ideas, approaches) that you haven’t even figured out what to do with is particularly insidious. But there are areas where R&D is really a heavy investment (medical research comes to mind), and those doing the work need to be assured that they can generate a revenue stream from the results. Patent law as a whole needs serious overhauling (even the medical guys gouge customers while they can), and maybe even limitation in subject matter (e.g., speculative patents seem craptastic), but I doubt that complete elimination is actually the best answer. (and I totally disagree with Astrohacker, who seems to believe that everybody is a good agent in seeking to reward producers rather than just get their desired products at minimal personal cost.)

  5. Patents are not just not taken into account during the development process, they are in fact avoided like the plague. Many big companies have policies dictating that you as an employee are not allowed to do patent searches as you might be held liable if it can be proven that you knew of the patent beforehand.

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