David Dayen at Firedoglake:
The problematic figures here are the institutional Congressional Democrats, the ones who don’t have an election coming up, or whose seats are safe, who simply welcome the campaign checks, mostly from the entertainment industry, and the power and influence that goes along with them....
The Tea Party, Dayen says, has "struck fear" into the Republican Party, but the Democrats don't respond to their grassroots because "the progressive movement inspires laughter." Quoting Kos:
You have an entire wired generation focused on this issue like a laser, fighting like hell to protect their online freedoms, and it’s FUCKING REPUBLICANS who are playing the heroes by dropping support?
Those goddam Democrats would rather keep collecting their Hollywood checks....
Fascinating. There's long been this assumption that young people take their political cues from the entertainment industry, but it's pretty obvious that no matter how much they like movies and music, they care more about what they personally
do on the internet than the entertainment industry's
financial interests.
Posts
148 comments:
(the other kev)
It's almost like the left-bloggers are only useful idiots.
Nah . . . couldn't be!
Even my teenaged son, who is rather apolitical, is fired up about SOPA.
They didn't listen to their constituents who opposed Obamacare either.
Toy
Well damn. This is starting to be as much fun as the week Scott Brown won and Air America went off the air permanently.
"... Those goddam Democrats would rather keep collecting their Hollywood checks, than heed the will of millions of Americans who have lent their online voice in an unprecedented manner.
Are they really this stupid? Can they really be this idiotic?.."
Yes. They did the same thing with Obamacare. Told the electorate to piss off and passed it so they could see what's in it.
Why anyone can be a liberal today boggles my mind.
Yeah, its like Democrat Senators and Republican Senators are almost alike except they get paid by different corporate lobbyists.
Wait, they're just now discovering that money makes these idiots do what they do, and that the Dems get a great deal of money from those supporting SOPA?
Those sweet, naive Kos kids.
Its interesting how little pushback against SOPA is on PBS, NPR, etc. Its like they're all in the tank for the Entertainment industry - despite being labeled "non-profit".
Is this really a surprise to the lefties? The MPAA didn't bring in Christopher Dodd to serve as their CEO because they wanted sound economic advice. (...and since Countrywide isn't solvent anymore, they couldn't even get a good deal on a loan from the guy.)
The entertainment industry tilts significantly to the left in terms of its monied interests. Netroots are great when you need to get bodies out to the polls, but granola doesn't keep the lights on.
"the progressive movement inspires laughter."
It certainly has that effect on me.
Reddit is all about being against SOPA. The participants there were also against the indefinite detention bill/law.
It's not a political site either, which is interesting.
"You have an entire wired generation focused on this issue like a laser, fighting like hell to protect their online freedoms, and it’s FUCKING REPUBLICANS who are playing the heroes by dropping support?"
That would only be troubling if you care more about rooting for your team rather than actual policies. Which is, of course, the case for these guys.
If Kos keeps this up, he may actually qualify as having a brain.
It must really gall them that standing for freedom actually pays political dividends.
I don’t normally read any lefty bloggers but I did pop over at Red State yesterday and it looks like they were taking the position that any Republican who co-sponsored either of the two bills and didn’t drop their support should be primaried so long as lefty bloggers agreed to do the same to Democrats who co-sponsored the bills. I don’t know whether this threat carried any weight (Rubio apparently dropped his support) but from I can tell, Red State was claiming that none of the lefty co-bloggers took them up on the offer. Protest is easy, taking actions that might actually cost you something is harder.
Not sure why anyone would be surprised that a lot of (R)s will naturally be against this. Typically opposing a new law or regulation is a very conservative thing to do (or at least a libertarian thing to do).
The creation of any new rule or law or regulation should always be the last resort, not the first thing you do when there's a new problem.
The right's opposition to SOPA turns on the censorship potential by a strong government which trumps a traditional protection of property rights (IP rights here). The left has surrendered its traditional defense of free speech and has embraced a crony capitalism of Hollywood.
A strong US government stance against nations that harbor pirates (i.e. China, Russia) would be effective since it would include patent infringements and others as well. But this would not fit well with other lefty myths
The creation of any new rule or law or regulation should always be the last resort, not the first thing you do when there's a new problem.
Well said.
Where is the sweet edge that divides property rights from fair use doctrine?
Not sure why anyone would be surprised that a lot of (R)s will naturally be against this. Typically opposing a new law or regulation is a very conservative thing to do (or at least a libertarian thing to do).
That will come as a suprise for all thosae (r)s that sponsored all those civil rights laws.
It is as if What's the Matter With Kansas is being replayed on the internet. Kansas is close to Ben Nelson in Nebraska where the sole issue is the price the whore gets.
So what is wrong with the Seiing Out Cheap Socialists?
I suspect the old guys are not internet savy. After all the Race Issue is always available at election time, right?
But what if electing Obama defanged the race issue. Try making Michelle Obama into a victim of race hatred...maybe it will work again, maybe.
If the Righties got a lot of money from Hollywood, would they have behaved differently? I say they would have.
...and it’s FUCKING REPUBLICANS who are playing the heroes by dropping support?
It's not the Democrats' fault that they "suddenly... stumbled and ended up in one of the SOPA lifeboats".
If the Righties got a lot of money from Hollywood, would they have behaved differently? I say they would have.
If this was true, the implications to our culture and society would tend to make counterfactuals almost moot.
"It's not the Democrats' fault that they "suddenly... stumbled and ended up in one of the SOPA lifeboats"."
Happens to me all the time.
Happens to me all the time.
Yes, but do you have a semi-hot, unknown eastern European hotsie with you when it happens?
Nonapod wrote: Not sure why anyone would be surprised that a lot of (R)s will naturally be against this. Typically opposing a new law or regulation is a very conservative thing to do (or at least a libertarian thing to do).
Exactly.
For the kids on the left, try to remember that all of your tumult and shouting has been for a bigger, more intrusive Federal government. You think you get to negotiate with the steamroller? Guess again.
I wonder if Kos and/or this Dayen dude spoke out against the slimness that was the Senator from Con, before he became the Senator from SOPA.
You want to see an exercise in cowardice?
Henry Waxman, Representative of Beverly Hills, Calabasas, and Hidden Hills does not have a known position on SOPA.
BTW, are cons ready to appoint Wyden as their least disliked D?
Henry Waxman, Representative of Beverly Hills, Calabasas, and Hidden Hills does not have a known position on SOPA.
He must have been talking to PETA about their official stance on abortion.
"For the kids on the left, try to remember that all of your tumult and shouting has been for a bigger, more intrusive Federal government. You think you get to negotiate with the steamroller? Guess again."
FTW
I mean it's nice and all that these Rs are responding to a proverbial 2x4 to the head.
But, Wyden was there a long time ago. And, aggressively so.
Also, some of y'all must love his healthcare idea.
Wonder how many of those lefties will choose freedom over food stamps and Obamacare and vote for a Republican. That's why the Democrats don't respond to pressure from the left, they know they have their vote no matter what.
Later today, Kos, Ed Schultz, Rachel Maddow, et al will be back to attacking Romney for being rich.
What does Rachel "We don't have the will to build big projects like the Hoover Dam anymore" Maddow have to say about the Keystone Pipeline fail?
@pbAndjFellowRepublican -- Just looked up Wyden. I'd take him over my democratic senators any day of the week. But then, I'm not a con. For all the conservatives that despised RINO Lincoln Chafee, let me point out that what you got instead was uberhack PIPA-supporting Sheldon Whitehouse.
"Also, some of y'all must love his healthcare idea."
Well, since they haven't passed it yet, I don't know what's in it.
It's simply not possible.
everyone know's that all the rich lawyers who would profit from SOPA are Republicans.
Only the Democrats care about the needs of the common people.
The government dependent segment of our populace would never be able to enjoy the finer things in life if it were not for piracy.
All the "R's" should be against anything that helps Hollywood or the RIAAA since these two groups are the biggest financial supporters of the liberalism and the Democrat party in the USA.
But the "R's" just can't help themselves. Once you tell them it helps big business and screws the little guy they can't wait to support it. Look at McCain and Hatch for example.
My son, who is 33 and never voted registered 2 weeks ago over SOPA - He is a Senior software engineer, makes his living for a fortune 500 company and just did not care about voting. His mother and I tried to encourage him, but to no avail. Until now -
The left should listen to Michele Boldrin on intellectual property, namely that it's pointless rent-seeking by entrenched interests that does nothing for invention or creativity.
New information: nothing for invention or creativity.
The opposite of what you know!
here.
It ought to be a leftist rallying cry, in fact.
It would also be good public relations, by being on the correct side for once.
"Yeah, its like Democrat (sic) Senators and Republican Senators are almost alike except they get paid by different corporate lobbyists."
No, the Democratic Senators and the Republican Senators are pretty much exactly alike, and they're paid by the same corporate lobbyists.
These useless tools believe and do what they're told, they don't question the media narrative that the Democrats are the cool rebels and the Republicans are the Evil Empire. They don't Question Authority. Until it affects their worthless little lives. By which time it's too late.
Authority just came up and slapped them in the face. "Hi, I'm That Asshole You Voted For."
Given that we actually DO primary people we don't like and don't just grumble and go along with the plan --- what the heck did progressives THINK would happen when they made it clear that they wouldn't do the same?
I'm hoping Lamar gets primaried.
I wonder if Kos and/or this Dayen dude spoke out against the slimness that was the Senator from Con, before he became the Senator from SOPA.
Likely not --- even when he was a corrupt little troll in Congress, he was THEIR corrupt little troll.
Republicans didn't rally around Cunningham when his problems became known.
For all the conservatives that despised RINO Lincoln Chafee, let me point out that what you got instead was uberhack PIPA-supporting Sheldon Whitehouse.
I see no reason to believe Chafee wouldn't have voted for it in a heartbeat.
SOPA, PIPA are not dead. They have become the undead. They will rise again with different letters and must be slain again. And maybe even again after that.
All those movies where the hero finally kills the villain after a great debilitating struggle then turns his back on him and the villain quietly recovers offscreen and springs back to life and attacks with renewed vigor are training films for this.
But at that point in any given movie I will switch and root for the villain for having survived all that, and against the hero for being so stupid.
Markos is showing his absolute partisan blindness. He has to see evil in the "others" and goes into a spasm of cognitive dissonance when confronted with the fact that he has been supporting people who are usually worse than his "others."
Also, some of y'all must love his healthcare idea.
Do you realize how many of your arguments of this bogus "if you think X, you have to think Y" type? You need to at least try to establish some kind of nexus between X and Y for this to work.
"... but the Democrats don't respond to their grassroots because "the progressive movement inspires laughter."
Well, it's not only the Democratic politicians it inspires laughter in, ya know.
Couple more great anti-IP pieces here, which references Boldrin, and a reply here, both at the American Conservative.
"In practical terms, when one acquires a copyright or a patent, what one really acquires is the power to ask the government stop other people from doing harmless things with their own property. IP is thus inconsistent with the right to property."
pauldar said...
"My son, who is 33 and never voted registered 2 weeks ago over SOPA - He is a Senior software engineer, makes his living for a fortune 500 company and just did not care about voting. His mother and I tried to encourage him, but to no avail. Until now.
Does he realize that he can't vote against SOPA, whether directly or indirectly (because it's not a partisan issue)?
Robert Cook said...
"the Democratic Senators and the Republican Senators are pretty much exactly alike, and they're paid by the same corporate lobbyists."
If that's true, then you won't have any objection to us having a supermajority, right? If Senators are indeed pretty much fungible.
By the way: Do you accept that what Google, Wikipedia, et al did yesterday was lobbying? Indeed, it was lobbying by corporations seeking to influence a legislative game in which they have skin.
" You need to at least try to establish some kind of nexus between X and Y for this to work."
Nexus = Ryan's medicare plan
Anywho,
Kos may be less upset.
IP is thus inconsistent with the right to property
I'm having a bit of trouble wrapping my head around this notion. If I write a novel, taking months of part-time work to research/write/edit/proofread it, not to mention the costs involved with getting it published, lack of copyright means I don't get to charge for it's use. If someone (for argument's sake a movie producer) reads my novel, downloaded from some private website, and then decides to make it into a film, they don't have to give me a penny.
How does that incentivise creativity?
Opposition to SOPA comes mostly from people who don't seem to understand it, and an adequate understanding of it would seem to require pretty firm grounding in both (1) IP law and philosophy and (2) DNS/Internet architecture. Who has these things? The people who threw yesterday's online hissy fit (Google, Wikipedia, et al.)? Big Hollywood? The online mob that bought into the hyped-up fear the Internet will break if SOPA passes?
I don't like what I see in SOPA, but that's mostly because it would seem to make mere development of some DRM-breaking technologies a criminal offense. That's not good. Just giving the government the power to create a DNS blacklist seems pretty tame.
But all's well; it's gonna die this time around.
Gee Bob, why don't you explain it all to us members of the "on-line mob"?
I'm sure you can dumb it down, so we can all understand that complex bill called SOPA and why its not so bad.
rcocean, I don't claim to understand it adequately. In fact, I'll state right here that I don't have the traits I suggested were necessary to understand it sufficiently.
Do you? Does your Congressperson?
I used the word "mob" because it looked like a mob to me yesterday. Lots of knee-jerk commentary from people who obviously had little idea what's actually in the bill.
I like Rubio's approach, which seems to be roughly that if he's not sure it's a good law, he can't support it. That's good conservatism.
The pols who vote for SOPA will get a ROPA around their necks.
The other thing about the internet is its Long Memory stored forever.
Those goddam Democrats would rather keep collecting their Hollywood checks
Yes, and you'll keep endorsing, campaigning & voting for Democrats.
Rube.
Can the Kos Kids make any point ever without using the F word? If they do it because they think they are edgy then they are simply being lame.
I use it myself a fair amount, but I save it for when I hit my thumb with a hammer.
Why anyone can be a liberal today boggles my mind.
The appropriate question is why would a liberal today support the Democratic Party. Actually, there's another appropriate question: Why would a conservative support the Republican Party?
How does that incentivise creativity?
To some extent you're thinking in blockbuster terms. The average return on a novel today is quite low- yet we've got more novels today than ever.
Lack of copyright doesn't mean that authors/publishers can't still charge for books. We may just have fewer multi-millionaires that way. But the value to the general public outweighs that- since we'd have greater freedom and access.
What if a very popular book had 3 movies made about it? This competition could be a benefit. Relationships would also develop that could benefit authors.
Here's one of my go-to examples: wouldn't Star Trek be better if Paramount didn't have a copyright on it? (Or Star Wars, or James Bond, etc.) Such monopolies encourage mediocrity.
Yeah, its like Democrat Senators and Republican Senators are almost alike except they get paid by different corporate lobbyists.
Cue Captain Renault....
rhhardin wrote: The left should listen to Michele Boldrin on intellectual property, namely that it's pointless rent-seeking by entrenched interests that does nothing for invention or creativity.
For once I agree with rhhardin. If the left listened to Boldrin, they'd shoot themselves in the foot and loose a lot of funding which is what needs to happen to them.
As for abolishing patents? Patently absurd.
@Brian
It doesn't matter if it's a blockbuster or not. If someone obviously uses my creative work to make something they are going to charge for, they should be paying me something for it. It doesn't matter if it's a hundred million, a million, or a hundred bucks.
Lack of copyright doesn't mean that authors/publishers can't still charge for books. We may just have fewer multi-millionaires that way. But the value to the general public outweighs that- since we'd have greater freedom and access.
This isn't my point. The publishing industry is going through the same thing the recording industry went through about ten years ago, although they appear to be fighting it harder. More novels is better, I agree, and the stumbling blocks for getting published less and less. That's also good. But that wasn't really my point.
What if a very popular book had 3 movies made about it? This competition could be a benefit. Relationships would also develop that could benefit authors.
The author has that option now by not signing anything with an exclusive use clause. Regardless, more to my point, if those three movies can get made (and subsequently charge people to see, and funky Hollywood accounting aside) without paying the author, how does that reward the author for creating the universe in question?
Here's one of my go-to examples: wouldn't Star Trek be better if Paramount didn't have a copyright on it? (Or Star Wars, or James Bond, etc.) Such monopolies encourage mediocrity.
I'm not sure this addresses my point. Now you're in the blockbuster realm. Sure, it would be nice to see my book up on the big screen, but that's not why I'm writing it.
Bob,
Its not my job to read and understand SOPA. Its the job of SOPA supporters to state (1) why this bill is necessary (2) what it will do (3) how it benefits the American People and (4) why the critics of the bill are wrong.
I've never seen anyone do this, perhaps because its impossible.
And the crowd goes wild as Hoosier gets an Insta-linked comment.
WOOT!
Icepick said...
"The appropriate question is why would a liberal today support the Democratic Party. Actually, there's another appropriate question: Why would a conservative support the Republican Party?"
The answer to both is because ideas go nowhere without a vehicle, and the imperfections of the parties as vehicles does nothing to change the need for a vehicle or the reality that when you're in a race, getting out of the car and looking around for a new way is the surest way to lose.
People love to imagine creating new political realities ex nihilo, or positing moves to a new system that leave the "how" part blank, but what we've got is what we've got.
Also, some of y'all must love his healthcare idea.
Assume I (many of us here?) operate from the default position that the more government controls something, the more it mucks it up.
I do think Wyden is a rare bird, in that he actually aims to solve problems rather than just do whatever will look good for now.
Opposition to SOPA comes mostly from people who don't seem to understand it, and an adequate understanding of it would seem to require pretty firm grounding in both (1) IP law and philosophy and (2) DNS/Internet architecture.
You would be wrong about that.
All you need to understand is that the bill would grant the government the power to seize a domain name -- say, www.google.com -- without any trial or due process.
You don't need to know anything whatsoever about intellectual property law. Intellectual property law has nothing to do with the bill. It doesn't matter if every single intellectual property owner's rights are being violated up one side of the Internet and down the other: you don't seize property without a trial. Not in this country.
You also don't need to know anything about how DNS works, either, any more than you have to understand firearms manufacture to know that the government shouldn't be allowed to put you up against a wall and summarily shoot you.
However, if you DO understand how DNS works -- and it doesn't take much, the technology's easy to understand -- that does give you the additional benefit of knowing that in addition to being a gross violation of due process and property rights, the domain-name seizure would also fail in its stated goal of preventing people from accessing pirate sites.
Scott M said, "How does that incentivise creativity?"
Under the Constitution, copyright is to be granted for limited times. It's fair to argue about what the limit ought to be (I think it was 23 years originally?), but the point is that eventually the work enters the public domain and becomes part of the folk culture.
What is pernicious, and unsupportable under a plain reading of the Constitution, is extending the limit for works already created. Obviously, such retroactivity rewards past work, and does nothing to incentivize future work. But it has been done repeatedly in recent years, and has resulted in many works never entering the public domain that should have. It is purely the result of rent-seeking by Big Media.
Scott - it's pointless. Some people seem to believe that all the books and movies they consume should be free, but that THEY deserve high salaries.
If someone obviously uses my creative work to make something they are going to charge for, they should be paying me something for it.
That's begging the question. And I believe a correct use of that phrase. :) You're assuming the conclusion.
Patents and copyrights are not a costless good thing. The downside to them is that they stifle innovation and creativity from everyone else. A creator gets a right, and everyone else on the planet loses a right.
If you patent something, and I have a slight improvement on your idea, I face a lot of legal roadblocks to getting my idea to market. Who gains from this? Just you.
This is the Star Trek argument, essentially. It doesn't only apply to blockbusters. My point with blockbusters is that what we regard as reward for creativity is skewed by the large profits BB's make. Typical rewards are much lower.
Your point, I believe, is that IP is the only way to incentivize creativity. My point is that- one, it isn't, and two- that the harms of such monopolies outweigh the benefits.
The Tea Party, Dayen says, has "struck fear" into the Republican Party, but the Democrats don't respond to their grassroots because "the progressive movement inspires laughter."
The embarrassing reality for the left is their "grassroots" is controlled at the top. Of course the Democrats don't feel the least bit threatened. These groups don't represent large voter blocks, and can easily be destroyed by cutting off the flow of cash.
Your point, I believe, is that IP is the only way to incentivize creativity. My point is that- one, it isn't, and two- that the harms of such monopolies outweigh the benefits.
What you're outlining is a utopian use of imagination. You're also suggesting that creativity and imagination are zero-sum games. Hardly. Simply because I create a group of characters and subject them to a particular conflict of my own imagining, doesn't mean that someone else can't think up their own.
Further, you seem to be suggesting a utopian ideal as far as the use of such work. You don't offer any protection to my work if, for instance, someone takes it and makes it into porn, or changes it slightly so that all of the characters are rapid, nazi, pedophiles. Or, indeed, they don't change it at all any further than changing the title and the names of the characters.
Welcome to the real world, FDL and Kos (well, okay, a small glimpse of it; I mean, it's FDL we're talking about - if they were actually in the real world they wouldn't be FDL).
Turns out that you have to be more than a captive constituency to get results from politicians.
Republicans are terrified of the Tea Party because it could, if they didn't act appropriately, replace them, or at least endanger a whole lot of elections.
But who are you going to vote for, o Kos and FDL followers, if not a Democrat?
Who've you got to scare them into action?
Nobody.
rabid, not rapid, although, given the topic, I suppose rapid works too...lol
SOPA would be push the burden of innocence on the accused "Copyright violator". They would be guilty when charged and would have to prove their innocence. Talk about a chilling affect!
Secondly, the US Government would act as stooges for the RIAAA and Hollywood. Why should taxpayers have to pay to enforce Disney's monopoly on Donald Duck?
Does US Government help you in a dispute with your neighbor?
Its an abuse of power by rich corporations.
What Revenant said. SOPA is a gross violation of due process and property rights. A government-mandated DNS blacklist that can be imposed without due process also entrenches the technical capabilities for censorship shockingly similar to those of the "Great Fire Wall" used to suppress unapproved political opinions in Communist China.
And, again, the rubes self-identify.
@Brian O'Connell You may think it looks too easy to get a patent, but the reality is that it isn't. For companies or individuals to get one they have to face novelty, non-obviousness and utility hurdles. The incentives reward companies which overcome those barriers. That "creates" creativity. If the rules were "anybody makes anybody else's stuff," whose to say which companies will gain? The ones that make it most cheaply? Who sits around and makes up new stuff?
From a practical standpoint, how could we implement your pipe dream? Declare the US a patent-free commercial zone? A place where IP rights aren't respected? I can think of two such nations: North Korea and Cuba. Is their poverty correlated with lack of IP rights? You bet. India and the Brazil used to be in the same boat so don't blame the dictators.
________________
wv = flunt. sounds the past tense of flint.
Scott M,
Patents are one thing; people do invent entirely new technologies from time to time.
Copyright is iffier. The last time someone created a work of art that didn't rely heavily on earlier works of art was probably around 2500 BC.
Take "Avatar", for example. Plenty of people pointed out that its basic plot is ripped off from Dances with Wolves. "Star Wars" is an even bigger offender -- Lucas stole wholesale from "Hidden Fortress", "The Dam Busters", and a handful of other movies and comic books.
So, question: why is Lucas allowed to copyright Star Wars? Why does anyone who lifts material from the Star Wars universe get threatened with lawsuits, while Lucas himself felt free to steal everything from Jedi Knights to pilot' dialogue? Why was Disney free to appropriate and re-interpret dozens of existing stories from the 15th-19th centuries, even when the heirs of the original authors were still known?
Hell, look at "Transformers". The actual Transformer robots themselves were rip-offs of rip-offs of rip-offs of rip-offs. Why didn't Go Nagai get a big fat cut of the royalties from those films?
Copyright is supposed to be limited in both scope AND duration. As originally seen, if you wrote a book, you owned that book. You did NOT own the characters, ideas, or plot. Because guess what -- the creator stole most of it from somewhere else and reinterpreted it in his own way.
I think most of you anti-IP types are mostly upset about patent and copyright term (length in force), rather than the concept.
Or not?
"Simply because I create a group of characters and subject them to a particular conflict of my own imagining, doesn't mean that someone else can't think up their own."
True- but it does mean that they can't publish a new conflict for the characters you created. This is a govt restriction on freedom. Nazi/porn versions? Why does anyone need "protection" in the form of govt granted monopoly against this?
(Not to mention characters created 50 or 100 years ago by people long dead.)
SOPA would be push the burden of innocence on the accused "Copyright violator". They would be guilty when charged and would have to prove their innocence. Talk about a chilling affect!
Yes.
IP rights and copyright protections are important and worth debating.
SOPA was the wrong bill.
@Brian O'Connell: So according to you, Wille Dixon had no claim on Led Zeppelin's "Whole Lotta Love"?
That raacist! ;)
Declare the US a patent-free commercial zone? A place where IP rights aren't respected? I can think of two such nations: North Korea and Cuba.
I can think of a few nations with much weaker IP rights than ours that do pretty well anyway -- Japan, China, Taiwan and India, for starters.
The biggest threat to technological creativity isn't people who steal your patents: it is people who get broad patents, sit on them, and then sue people who independently develop similar technologies.
The primary use of patent law in high tech fields is to frighten away innovators from existing product spaces.
"... the progressive movement inspires laughter."
Oooooh! Do I detect a glimmer of the beginning of a little self-awareness?
"You may think it looks too easy to get a patent, but the reality is that it isn't."
Thus favoring large corporations- as does much regulation- but that's a side issue.
And someone explain Amazon One-Click to me. Non-obvious? Sotware and business model patents are the worst.
Brian - to whom was 1-click ordered obvious before Amazon invented it? I challenge you to find prior art.
"Software and business model patents are the worst. "
Yer preachin' to the choir, buddy.
"..., but it's pretty obvious that no matter how much they like movies and music, they care more about what they personally do on the internet than the entertainment industry's financial interests."
And so too it's pretty obvious they'll vote Democrat come November, because they're too stupid to do anything else.
Credit Democrat politicians this: they know their constituencies are as dumb as a fence-post; they can do whatever they want and they'll still get their votes. They can take Hollywood money, vote for a bill opposed by their constituents, and still be reelected.
Life is sweet when the people who hire you are dopes.
@Brian O'Connell You may think it looks too easy to get a patent, but the reality is that it isn't. For companies or individuals to get one they have to face novelty, non-obviousness and utility hurdles. The incentives reward companies which overcome those barriers. That "creates" creativity. If the rules were "anybody makes anybody else's stuff," whose to say which companies will gain? The ones that make it most cheaply? Who sits around and makes up new stuff?
Somewhat true. Utility is pretty much assumed, unless the "invention" somehow violates one of the well known laws of nature, such as relativity or Newton's third law.
I have been doing patent law for better than 20 years now, and am still learning stuff - and that is even more important with the enactment of the America (Dis)Invents Act, which was another, even bigger, piece of rent seeking, facilitated by the same Congressional figures, esp. Sen. Leahy(D-IBM) and Rep. Smith(R-TX).
The rot is on both sides of the isle, in both Houses. We thought that we would get more Republicans voting against "patent reform" than we did, because of the rampant rent seeking that so many of them had been sent to Congress to clean up.
Japan, China, Taiwan and India,
Japan is one of the harder countries to get a patent in (biotech/chem). China used to be easy and no longer is. Same with India. Taiwan I don't hear much about.
Of those four, which one is known to export novel items of commerce, i.e., ones that were invented there?
_________
wv = mitylogi = The study of Mit.
Copyright is out-dated. It needs to be replaced by direct internet voting by all citizens to distribute subsidies to artists, authors, musicians, etc., according to their wishes, as determined by averaging of the votes. Mostly it is inefficient to price things otherwise than at marginal cost (the case where there is so-called Pareto efficiency). But copyrighted and patented material, or basically anything with high developmental costs, can't be priced at the very low marginal cost (the cost of producing an extra item), and so people don't end up getting things they would pay @ $x for even though someone else would gladly produce more of the things for much less than @ $x, a stupid situation. Capitalism without government intervention fails miserably when it comes to rewarding creativity while pricing correctly material with high initial cost and low marginal cost. And the government issuing patents, copyrights, etc., is a dreadfully outmoded kind of government intervention.
Democrats have become beholden to money (financial interests in particular). In so far as standing up to the moneyed-interests is concerned, they mostly have become like Republicans, only they're more dishonest, pretending that their party is against the crooked white-collar financial types (the ones that people like Matt Taibbi and William Black talk about, who would probably go to jail except that Obama, his justice department, etc., are protecting them with indifference). Last fall I quit the party and became independent. What really set me off was a fundraising email in which they said my online support was "pending", like they were trying to confuse me into thinking I had promised to give them money. Their fundraising morals are so flagrantly bad, I wouldn't be surprised if all the manipulative begging they do negates the effects of whatever they choose to spend the money they raise on. Elitist fools ever overvalue money and what it can buy, especially if such overvaluation is encouraged by underestimating the sense of the non-elitist of the Americans.
Brian - to whom was 1-click ordered obvious before Amazon invented it? I challenge you to find prior art.
Anyone who ever told the barkeep "just put it on my tab".
Amazon weren't the first folks to do one-click ordering, just the first to patent it. It really was an obvious idea; the concerns surrounding it were legal and financial (keeping that kind of customer financial data on-hand is a huge can of worms, legall). Technologically speaking, one-click is *easier* to implement than other solutions.
@Revenant: But perhaps you're right & the US needs to go through a period of Chinese-style reindustrialzation. The GDP will take a hit but will eventually rise again. It would cure our entitlement mentality at least. :)
BTW, Germany is one of the stronger IP rights countries.
chickenlittle,
There's no need for re-industrialization. In IT, at least, patent laws make lawyers rich, not inventors.
Hello? SOPA has little to do with Patent law. We didn't get SOPA because people were downloading the patent for Wonder Drug X from Merck.
SOPA has to do with copyright law and the recording industry, Hollywood, and the publishing world. They were all upset because instead of making $110 million off "Porky's V" they were only making $108 million because of "Piracy".
You may think it looks too easy to get a patent, but the reality is that it isn't. For companies or individuals to get one they have to face novelty, non-obviousness and utility hurdles.
Those are the hurdles they're supposed to face. I'm not sure what business you're in, but when companies are patenting things like "email... but on a mobile device" it's entirely too easy to get patents. The USPTO seems to have completely discarded the non-obviousness test.
Take a look at RIM's email patents, or Apple's iPhone patents. And the perennial favorite, Amazon's one-click patent. "Non-obvious to an expert in the field" has apparently been replaced by "obvious to the most casual observer". There are inventions covered by hundreds of overlapping patents.
I don't have a problem with the patents for things that are truly novel and groundbreaking. But the bar needs to be raised quite a bit.
When I was in grad school (chemistry) I recall witnessing a student steal and try to pass off as her own somebody else’s idea, before it was published or the work even completed. When a requirement for graduation is just results and not original results, what’s to stop cheating? A sense of propriety? What’s wrong with someone rightfully owning an idea? Jefferson thought it was great compromiseWhat are you a bunch of commies? Or are you just being polemicysts™?
I don't have a problem with the patents for things that are truly novel and groundbreaking. But the bar needs to be raised quite a bit.
Amen to that.
Realistically patent reform of the kind that needs doing is 20 years into the future. For now we're stuck with a broken system that favor giant corporations over garage inventors. No, not garage mahal, but you know what I mean.
When a requirement for graduation is just results and not original results, what’s to stop cheating? A sense of propriety? What’s wrong with someone rightfully owning an idea? Jefferson thought it was great compromiseWhat are you a bunch of commies? Or are you just being polemicysts™?
To use your metaphor, chicken -- you take a multiple choice test without cheating off anybody. You independently choose all the correct answers -- A, C, D, C, A, B, D.
You go to hand in your paper. The professor looks at it, clucks his tongue, and says "sorry, somebody else already handed in a test with the answers 'A C D C A B D'. You'll have to substantially change those answer choices before I can accept this paper".
That's modern patent law.
Opposition to SOPA comes mostly from people who don't seem to understand it, and an adequate understanding of it would seem to require pretty firm grounding in both (1) IP law and philosophy and (2) DNS/Internet architecture. Who has these things? The people who threw yesterday's online hissy fit (Google, Wikipedia, et al.)? Big Hollywood? The online mob that bought into the hyped-up fear the Internet will break if SOPA passes?
I will respectfully disagree, and instead suggest that one of the big problems with the legislation is that the drafters were not tech savvy enough to understand what they were writing into law.
For example, until recently, they thought it a great idea to just have DNS servers around the world misdirect those seeking access to problematic web sites to web elsewhere - presumably to either U.S. govt. sites or content provider sites. What could go wrong with such an elegant solution?
Something called DNSSEC, which was already being rolled out, at least by Firefox. DNSSEC is an attempt to prevent just what the government was trying to implement - redirection through fudging DNS entries. If that had remained in the legislation, it would have killed the most viable fix for a huge Internet security hole. All so that the RIAA and MPAA could perpetuate their obsolete business plans for a couple more years.
So, when those pushing the legislation realized that they had become a laughing stock by their technological illiteracy, in pushing DNS redirection, they switched to DNS blocking. And, again showed their ignorance of how the Internet in general, and DNS in particular, operates. For one thing, it is trivial to work around DNS blocking by just specifying the IP address of one of your DNS servers to be a server outside the U.S. Assuming that they were successful in blocking recursive DNS searching for the domain names they were trying to block. Keep in mind that the (predecessor to the) Internet was originally designed to survive a nuclear attack. And, this to some extent includes DNS domain name resolution.
Eric: Those are the hurdles they're supposed to face. I'm not sure what business you're in, but when companies are patenting things like "email... but on a mobile device" it's entirely too easy to get patents. The USPTO seems to have completely discarded the non-obviousness test.
Bingo! The USPTO has ooddles of problems and one of them is retention of patent examiners. Another is that it generates lots of money from annuities (rent seeking) which goes into paying for entitlements instead of improving its own rank and file. It should be run more like a business instead of a cash cow.
Those are the hurdles they're supposed to face. I'm not sure what business you're in, but when companies are patenting things like "email... but on a mobile device" it's entirely too easy to get patents. The USPTO seems to have completely discarded the non-obviousness test.
Let me suggest that you really don't know what you are talking about here. But, as pointed out, this isn't about patents (that battle was lost last summer), but rather copyrights. The big content providers (RIAA, MPAA, etc.) saw how effective rent seeking could be, and that the leaders on the Judiciary Committees in both Houses were effectively for sale, and decided to do what the biggest patent infringers had done with patent law.
IP rights and copyright protections are important and worth debating.
I agree. But because of the overreach on the part of the SOPA promoters, I reserve the right to insert the word "Freely" after every instance of the term of art "IP" that I encounter hereafter.
SOPA is about copyrights, not patents. For those following the tech industry, you would know that we're currently in the middle of patent-amageddon with Apple/Microsoft/Google/Samsung/Nokia. We're talking about patent portfolios that total into the 100K range.
@Brian O'Connell wrote: And someone explain Amazon One-Click to me. Non-obvious? Sotware and business model patents are the worst.
What you're doing is like watching the trial of that Florida party mom and seeing her get off, and then concluding that the whole criminal justice system everywhere sucks.
Bingo! The USPTO has ooddles of problems and one of them is retention of patent examiners. Another is that it generates lots of money from annuities (rent seeking) which goes into paying for entitlements instead of improving its own rank and file. It should be run more like a business instead of a cash cow.
Not really. Several decades ago, the USPTO switched over from completely funding examination through filing fees, to funding it through a combination of filing fees and maintenance fees (what you call "annuities", but aren't, since they are only due every approximately 3 years). So, mostly, the filing fees and the maintenance fees are thrown into a big pot, and a percent is creamed off for overhead and some other less relevant things, and the remainder spent on examination.
But, what turned out to be quite humorous a couple years ago, was that the USPTO had cranked down allowance rates from a traditional 70% or so in most art areas to 30% or so in many. 2/3 of the applications were now being abandoned after prosecution, and not the normal 1/3. The companies filing such went, wooh, this isn't making economic sense any more, and dropped their filings. BUT, the USPTO, by funding continuing operations from new filings and maintenance fees found that their income stream had dropped - and they had already spent the filing fee money for the applications in backlog.
I do not fully respect Dir. Kappos, esp. with his apparent violation of Obama Administration anti-lobbying (he went straight from lobbying for patent reform at IBM to doing so as USPTO Director). But, he has gotten this problem under control, and part of that was in pushing allowance rates back up a bit, which helps a lot with those maintenance fees that are used to help pay for examination.
Back to rent seeking - for the most part, USPTO costs are designed to benefit independent inventors and small companies at the expense of big companies. For one thing, most fees for "small entities" are half those for "large entities", but the cost of prosecution for small entities is not really less. And, these include maintenance fees. Oh, and we now have "micro" entities with Patent Reform that have even lower fees. Of course, the definition of a micro entity is so narrow that even I, as an individual, wouldn't qualify.
I don't have a problem with the patents for things that are truly novel and groundbreaking. But the bar needs to be raised quite a bit.
First, you are using a legal term of art, "novelty", most likely its common definition, and not its legal definition. Patent claims must be novel and nonobvious to be allowable. But, your definition of "novel" and "obvious" are almost assuredly different than mine as a patent attorney having to deal with these issues on a day to day basis.
But, if you are going to limit patents to groundbreaking inventions, you are going to eliminate approximately 99% of such. Maybe that would make you happy, but it would effectively destroy the patent system.
(Late in the thread, but...)
I don't see why folks are letting the Republicans off easy on this.
When I saw Sen. Rubio dropped his support, my first question was, why were you on that bill in the first place?
Here's my crazy idea: Senators and Congressmen should actually read and study a bill before they endorse it; and they should be for it because...they like the idea.
So if Rubio (who I like a lot) sponsored the bill, my presumption is he thought it was a good idea. Dropping his support doesn't let him off the hook.
Here's the simplest test for the morality of the patent system. Do you agree that Apple has made products that have changed all our lives and do you think for a moment they could have created all those wonderful products in an environment that did not protect their IP?
More patent controversy as it relates to healthcare costs and food costs. These are life and death issues- just to further illustrate the point that there is a downside to these govt granted monopolies.
Brian - every point you raise is legitimate and important. But the average Joe and Jane couldn't care less.
@Brian O'Connell: People are dying of hunger in Africa. Are you well fed? You shouldn't be. How do you sleep at night?
"they care more about what they personally do on the internet than the entertainment industry's financial interests. "
That's because today the internet IS their entertainment universe. This is old tech versus new, and nobody likes old - not even 5 minutes old. They know what they value, and I'm with 'em. The only difference is I see it as purely something called liberty. They aren't comfortable with such a right wing term, but they are learning. Maybe they could co-opt it and we could all be liberals again.
Forget class warfare, politics, foreign policy, property rights or anything else. Mess with the internet and I bet you could probably drive a full blown revolution in this country with heads on pikes and all the other accoutrements of a good time.
"Do you agree that Apple has made products that have changed all our lives and do you think for a moment they could have created all those wonderful products in an environment that did not protect their IP?"
First off they didn't invent anywhere near as many as they patented, and second no, they would not have invented them all either, but someone would. Apple just wouldn't have a monopoly that keeps the prices high.
In other words you would get your products, a choice, and lower prices.
If companies don't get IP protection, then they will simply keep all their inventions secret and it would make very difficult for folks to even find out about new ideas. It's as simple as that.
This does not prove that SOPA is a good idea though. Let's keep internet the way it is, the government can only make things worse.
"Apple just wouldn't have a monopoly that keeps the prices high. "
What product does Apple have a monopoly on?
It's almost like the left-bloggers are only useful idiots.
Nah . . . couldn't be!
Conservatives tend toward more individual rights. Proggs, not so much.
In other words you would get your products, a choice, and lower prices.
I dunno bag o water. Does Apple make too much money? Do they have "obscene profits" like oil companies led by secretive billionaires do?
Apple makes the biggest EBITA per quarter in the world right now. Their last quarter will be around $8.8 billion which will be a new record for non-oil companies. The difference with Apple is everything is above board and they're the most ethical company in history. Just ask their workers in China how well Apple treats them.
What do you know. Real conservatives care more about civil liberties than the crooks selling a bill of goods to liberals who think We Just Need To Get Righteous People Running Things.
The thing is, to believe that you pretty much have to ignore 99% of human history. If more people understood that our system works as well as it does because some awesome cynics decided a government that spent more time checking-and-balancing itself than actually governing would be a boon to the governed then maybe cynicism (the key trait of conservatism, I believe) would be more respected.
But then, the demographic that thinks We Just Need To Get Righteous People Running Things tends to also believe they are members of the Righteous. That's where my little screed implodes.
"What product does Apple have a monopoly on?"
So what's the patents for?
I have a number of patents and every single one of them has copies made in China that I have to compete with.
Patents are most useful to the lawyers who defend them and the lawyers of those who violate them. Everybody else gets screwed.
Check out Drudge. Massive denial of service attacks happening now. Targets: federal gov't and entertainment industry websites.
Link:
http://gizmodo.com/5877679/anonymous-kills-department-of-justice-site-in-megaupload-revenge-strike
Just ask their workers in China how well Apple treats them.
I'd also like to ask the avergae Chinese worker whether their lives had improved or gotten worse in a generation.
Lack of copyright doesn't mean that authors/publishers can't still charge for books. .. so you are a sociliast. read what dickens said about americans. America was the biggest pirate in history of copyright.
The USa has international compromises and would be violating them plus the constituion, do you it? An orders a copyright system
why someone must have the right to proffit on other person work?
SOPA violate due procees and could break the internet. It is a wronrg remedy to a rela problem , thieves that believe they are entitled to other people work for free.
Sure bloggers can attack SOPA, they are tenured and none Is Thoms Wolfe or ian Mcewan. For free you get all that trash selfpublished you know were. Thanks to them BTW. it would be a crime to use a tree to publish that. The free books that you can get are of very low quality. I got abook for my kindle , free, it has the cover . Nothing else.A blank page book. It was Calvin´s self help book but i wanted a diary of the trip to the USA of Miranda
@Bag:
Criminals are most useful to the lawyers who defend them and the lawyers of those who violate them. Everybody else gets screwed.
Doesn't prove patents are criminal.
BTW, if yours are so useless, why not let them lapse?
But, your definition of "novel" and "obvious" are almost assuredly different than mine as a patent attorney having to deal with these issues on a day to day basis.
Maybe so. But let me say if I'm presented with a problem and a solution pops into mind without any extra thought or research, that solution should not be patentable, regardless of the legal definition of obvious. Too many patents fail this test.
But, if you are going to limit patents to groundbreaking inventions, you are going to eliminate approximately 99% of such. Maybe that would make you happy, but it would effectively destroy the patent system.
I'm not really interested in the maintenance of the patent system. What I'm interested in is technical progress. If we can get more progress by tweaking the system, or even discarding it altogether, I'm all for the change.
It's not fundamentally fair that if two people invent the same device independently the second has to pay the first for the use of his own invention. That's a level of unfairness that's traditionally been considered a reasonable price to pay for technical progress.
But what's happening, at least in the area of electronics and software, is individuals and companies are staking out broad areas of the obvious (using the common definition) and forcing everyone else to pay a toll to produce a product the way anyone in the industry would have done it. That is not an aid to progress. It's just rent seeking. Why keep a system that isn't performing its primary function?
Fascinating. There's long been this assumption that young people take their political cues from the entertainment industry, but it's pretty obvious that no matter how much they like movies and music, they care more about what they personally do on the internet than the entertainment industry's financial interests.
Wow. You just now figured this out?
The year 1955 called, and it wants its worldview back.
Even when it comes to Hollywood as the supposed political bugbear right-wingers make it out to be, you really think that its financial fortunes are what the left would worry about?
Strange.
Even if you're talking about political strategists and not just voters, technology industries are just as if not more profitable, and much more relevant to the economy.
Come on. Raise the game. Please?
"It's not the Democrats' fault that they "suddenly... stumbled and ended up in one of the SOPA lifeboats"."
LOL
Thread winner.
President Obama would like to assure you that he is on your side. If you voted for him in 2008 and you are not in the entertainment industry, rest assured that the president will veto SOPA and not allow Congress to take away your online freedoms. If you voted for him in 2008 and you are in the entertainment industry, rest assured that the Megaupload.com shutdown is just the beginning and the president will go to any length to save your jobs.
Burn Hollywood, Burn
**If the Righties got a lot of money from Hollywood, would they have behaved differently? I say they would have.**
Ridiculous. Lamar Smith is behaving differently, and he only got $50,000.
Though for the lefties surprised by how their representatives are reacting, they should (but won't) rethink their preferred narrative. According to their narrative, the Democrats are standing up for the little guy while the Republicans only stand for big business. Well, the little guy is united against SOPA, while big Hollywood supports it. The Republicans are the ones who are (slowly) standing up for the little guy here, while the Dems support big business.
Prepare for a level of cognitive dissonance not seen since the lefties on the Supreme Court gave us the majority opinion in Kelo v. New London, while the conservatives were in dissent.
Scott M said...
Your point, I believe, is that IP is the only way to incentivize creativity. My point is that- one, it isn't, and two- that the harms of such monopolies outweigh the benefits.
What you're outlining is a utopian use of imagination. You're also suggesting that creativity and imagination are zero-sum games. Hardly. Simply because I create a group of characters and subject them to a particular conflict of my own imagining, doesn't mean that someone else can't think up their own.
Further, you seem to be suggesting a utopian ideal as far as the use of such work. You don't offer any protection to my work if, for instance, someone takes it and makes it into porn, or changes it slightly so that all of the characters are rapid, nazi, pedophiles. Or, indeed, they don't change it at all any further than changing the title and the names of the characters.
1/19/12 4:38 PM
The flaw in your argument is that you and others here commenting conflate copyrights and patents. They are not the same. A copyright is a specific expression and nothing more. It is not a patent which covers ideas. That is why it is very cheap to get one and very easy to qualify for one. It's a very low threshold.
You can get a copyright for a photograph of a sunset taken at a specific moment in time. Take another photograph a few minutes later with a slightly different lighting and that would be a separate copyrightable act. The bar is very low and the infringement has to virtually indistinguishable. Hollywood want to turn copyrights into a form of patents and frankly very little in the entertainment industry is that novel, new or unique to merit such protections.
You can get a copyright for a photograph of a sunset taken at a specific moment in time. Take another photograph a few minutes later with a slightly different lighting and that would be a separate copyrightable act. The bar is very low and the infringement has to virtually indistinguishable. Hollywood want to turn copyrights into a form of patents and frankly very little in the entertainment industry is that novel, new or unique to merit such protections.
First, just to be a little picky, but there really isn't anything "copyrightable" any more, nor can you "copyright" anything. Used to be, but both imply or require some action, and no action, except for the act of creation, is required any more, and hasn't been for a couple of decades.
But, you are correct that the threshold for the level of original expression required is quite low - but there has to be at least some (the Supreme Court rejected copyright for telephone book white pages as lacking even that).
But, just like there can be any number of sunset photos protected by copyright, infringement requires an act of some sort of copying (reproduction, creation of a derivative work, public performance, etc.)
Copyright infringement isn't always clear cut - there is a theory termed "non-literal" infringement. This means that there can be infringement at a higher level of abstraction. Take the classic case of Romeo and Juliet, and West Side Story. The later is a take off of the former, a lot of it just recasting it in a more modern (at the time) venue. But they do differ, and there are a number of derivations of Romeo and Juliet that come a lot closer, but don't follow the original exactly. At some point, as they come closer and closer to the original, infringement occurs.
But note that general plots and the like are not protected by copyright, because they are really ideas and not expression of such. That is the usual distinction. And, the usual method of disentangling the two is termed "filtration".
But, given that copying is required, and that independent creation is theoretically a perfect defense, the standard of proof, if you cannot prove actual acts of copying, is typically substantial similarity with proof of access to the original, but if access cannot be proven, then it typically requires a striking similarity that can not be otherwise explained.
Of course, with the RIAA and MPAA, and the Internet, this is usually not much of an issue - the images and sound are digitized, and the striking similarity test is easily passed with 99.99+% of the bits matching. And, if that is ever becomes an issue, watermarks can be added, if they aren't already.
My basic problem with copyright is that these same content owners or licensees have pushed "limited term" to be as close to infinity as they can. Somehow life+70 was considered limited, despite the addition of 20 years to it in 1998 provided essentially no additional financial incentive to creators of new original expression (present value of that 20 years estimated by economists to be <1%). But, for Disney, their Mickey Mouse franchise was worth many millions, and, hence this rent seeking legislation that now informally bears this character's name. For me, 28 years or so makes much more sense.
What's really interesting is the fissure it's created in the Big Left. Google and Silicon Valley drink the kool-aid too, and they're richer. But less sexy, and that's probably their fatal flaw. All these Dem pols would rather be Hollywood heroes... er, lobbyists, when they get booted in the Great Shellacking of 2012. Better parties. Better boobs. Just ask Chris Dodd! From Countrywide to the wildest c**ts in hollywood! Oldest story in America: Democrat seeks the choicest pimp.
It's not fundamentally fair that if two people invent the same device independently the second has to pay the first for the use of his own invention. That's a level of unfairness that's traditionally been considered a reasonable price to pay for technical progress.
Go talk to our founders. Part of the deal made was the disclosure of the invention in trade for a short monopoly over its use.
But what's happening, at least in the area of electronics and software, is individuals and companies are staking out broad areas of the obvious (using the common definition) and forcing everyone else to pay a toll to produce a product the way anyone in the industry would have done it. That is not an aid to progress. It's just rent seeking. Why keep a system that isn't performing its primary function?
Again, we are talking a tradeoff, but I suspect that you really do not understand this at much depth. This is the area of patents in which I have worked for the last 20+ years, and see a lot of problems, but not really the ones that you apparently do.
One thing that you need to keep in mind is that if something really is "obvious" as you use the word, it likely is not patentable, despite the legal definition of the word. BUT, most people have little conception of what a patent grant really means. What is in the title, summary, abstract, or even detailed description is almost irrelevant to the monopoly granted. Rather, the monopoly granted is set out in the patent claims that are located at the end of the patent. They are legally quite dense, some of the densest legal language around, with each word often having importance. Furthermore, they must be interpreted in view of the rest of the patent, the patent prosecution history (extending throughout all its parent applications), and all the prior art cited during prosecution. A patent draftsman is his own lexicographer, and so many terms that may seem to have one meaning to you or the general public, will turn out to have been given a different meaning by the patent applicant (or, more likely his patent attorney or agent). Few, outside experienced registered patent attorneys and agents, and experienced patent litigators, truly understand the monopoly actually granted by most patents. And, most often, that monopoly is far narrower than most people think, based on their lay reading of the patents.
The biggest problem that a lot of us see in these types of patents is that the prior art was inadequately searched. Now, no search is perfect, which is why you will some times use multiple independent searchers when the stakes are high enough. But, the USPTO can only afford to allocate a limited amount of time to each examination (since they are essentially self-funded through filing and maintenance fees), and that includes the time that examiners can spend searching the prior art. And, the determination of what is novel and non-obvious is based primarily on the prior art available during examination (or during litigation - which is why maybe half of litigated patents are invalidated).
Software is more problematic than electronics for a number of reasons. One is that the terminology is far less uniform, which means that searching is much harder. Key word searches often don't turn up as much as they would in other art areas. And, until a bit under 20 years ago, the USPTO generally refused to grant software patents, and without a patent database, much of the prior art was not really well documented. You had ACM, IEEE, and IBM publications, but not a lot more, for much of what was invented prior to the early 1990s. That, at least, is improving, as more and more software patents are issued, documenting the prior art for posterity. Plus, the quality of the search tools available to examiners is improving, including on-line access to those, and many other, publications (I should note that more IEEE publications are cited in patents than any other non-patent source, across all art areas, by a wide margin).
Few, outside experienced registered patent attorneys and agents, and experienced patent litigators, truly understand the monopoly actually granted by most patents. And, most often, that monopoly is far narrower than most people think, based on their lay reading of the patents.
Let me add to that - that patents are often presented by their owners as covering much more than they actually do, often citing the title, abstract, and/or summary to show how important their patent is. Which is one reason that these parts of patents are often so broad. Another reason is that these are most often part of the original patent application, while the claims that issue are the result of prosecution, which often takes years. Most patent attorneys and agents start out with broader claims than they expect to have allowed, just to be safe, and expect this narrowing during prosecution. Examiners are supposed to require rewriting of the title and abstract to conform to the claims actually allowed, but this is rarely enforced.
And, so, what you are seeing when you read the title, abstract, and sometimes summary, of a patent is most often what the applicant thought, optimistically, often in naivety, to be his invention at the time his patent application was first filed. The resulting claims, that set out his legal monopoly, are most often much narrower.
You could take the Galambosian line, that only the one whose idea something is has the right to say it, even apart from copyright.
This turned up "It Usually Begns With Ayn Rand" by Jerome Tucille as typical of the ridiculous - a position now adopted by Hollywood. Search Inside for Galambosian, p.49.
""... Those goddam Democrats would rather keep collecting their Hollywood checks, than heed the will of millions of Americans ..."
And in Wisconsin they'd rather keep collecting their union checks than consider meaningful reforms to taxpayer-funded education.
So, what's new?
Bruce Hayden said...
Excellent comments. In addition there is a lot fraud committed on the copyright office by copyright applicants who fail to disclose prior works and public domain content in their application. The CO is not a fact finding body, it takes the applicants word that all that should be disclosed has been disclosed on the application. its an honor system. There is an obscure provision in the copyright law called rule 411(b)(2C) where the a motion to a trial judge can be filed asking the court to write a question to the copyright office whether or not it would have granted the registration if it had been made aware on the application X, Y or Z. In short to have the CO become the 'super expert' if the trail courts wishes to punt the matter to the copyright office although the court always retains the right to validate or invalidate a copyright.
Then there is a recent decision in a California district court that ruled that there can be a valid registration even though the underlying material is not original enough to be copyrightable. Hence a registration that is meaningless in terms of infringement and thus damages.
In addition there is a lot fraud committed on the copyright office by copyright applicants who fail to disclose prior works and public domain content in their application. The CO is not a fact finding body, it takes the applicants word that all that should be disclosed has been disclosed on the application. its an honor system.
Agreed that there is a lot of invalid information in copyright registration applications. Disagree though that it is usually caused by an intent to defraud. My guess is that much of it is due to lack of knowledge of the copyright laws. And, you quickly find that putting too much information in your application just causes problems. That sort of thing.
But, also agree that CO is not a fact finding body, and, as a result, courts pay much less deference to their actions than they do to patent examiners and trademark attorneys. (Though, we did try to convince a judge to the contrary in a software copyright case almost 2 decades ago).
Keep in mind though that what we are talking about here is copyright registration, and not ownership of a copyright. The later has been automatic for over 20 years now, attaching at the time of creation of the original expression.
There are two primary reasons to register a copyright. First, if you register early enough, you may be able to get statutory damages and attorneys' fees. This can be important, since many copyright cases cost more than $100 to prosecute, and actual damages often fail to be sufficient enough to justify litigation. Secondly, you need to file a copyright registration in order to file suit (in a U.S. District Court) for infringement. But note that actual registration is not required - you either need to have a registration, or a refusal by the CO to register. And, this can be done on an expedited basis, plus many judges let this slide a bit, just so that the registration (or CO refusal) is in place before the case gets too far along.
Then there is a recent decision in a California district court that ruled that there can be a valid registration even though the underlying material is not original enough to be copyrightable. Hence a registration that is meaningless in terms of infringement and thus damages.
But, keep in mind that the actual determination of what material was copied is up to the (federal) courts to decide, and so from that point of view, an attempt to register is really all that really matters in regards to jurisdiction.
The California case in question is
Express ltd vs Forever 21.
The fraud and abuse I mentioned is fairly rampant especially in the visual arts. It takes very little file an application and bar is very low. The point being there are a number of 'submarine' trollers who look around and see what is the market and Surprise! file an application. Then comes the cease and desist letters and the demands for royalties or 'reasonable' settlements. Most settle just to avoid the litigation. A sweet racket for those who know just how much to extort without the victim turning them.
I beg to differ on whether or not the applicant should fully disclose prior works or public domain elements. That is what they state they are doing when the sign the application.
To get statutory damages it helps To prove willfulness. But if you aren't a major player with the public likely to have a recognition of your copyright its difficult to prove since in all likelihood the infringer had no knowledge of the copyright. And statutory damages are awarded in lieu of the plaintiff being able to show actual damages. And without willfulness getting statutory damages isn't a walk in the park especially if the plaintiff has been awarded the defendants profits. It's no walk in the park to get both the defendants profits and the maximum statutory damages, especially if the defendants profits are considerably lower than the maximum statutory damages.
And proving actual damages on the part of the defendant is also no walk in the park in most cases as it is usually difficult to prove but if for the infringement we would have made X amount.
The courts would be better served if they were to avail themselves of rule 411 by providing al of the relevent facts provided by both parties in its question or questions to the CO and let the 'super expert' decide whether or not it would of granted the registration.
Legal fees and costs can be awarded but that isn't a certainty, especially if the case is over litigated by the plaintiff.
Yes you can litigate with an unplublished copyright but the registration gives the plaintiff the basis to seek statutory damages and attorney fees.
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