Assessing IP
2/4/12 09:47![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
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talkpoliticsOnce upon a time, I wanted to be a copyright attorney post-graduation. I am enamored of quite a few fields where copyright is a key issue, particularly gaming. Then I took a few IP classes. I still find the law interesting, but for totally different reasons.
Copyright and patent laws are interesting because they are an express command, in the US Constitution, to engage in social engineering. They allow the creation of monopolies to encourage invention and creativity. This has its upsides and downsides, of course. The upside is that owners of the IP get to exploit it for a limited time, and the downside is that only they get to. Since everything is a remix, this sort of restriction is moderately anti-creativity, if we understand that the vast majority of creative people are extremely good at mixing-and-matching things that others have done before. It's presumed that we get more out of it than we lose, though.
But do we? A few examples.
Patents
NASA has a site devoted to telling people how their technology has spun off into things we use every day, a desperate effort to defend their funding. Breast cancer screenings? Thank the guys who sent up a screwy mirror on Hubble. Have a fire in your house? Now it can be put out faster, with less water, thanks to the application of a NASA rocket design. How does this relate to IP, though? Simple: when you work for NASA, you are barred from patenting your discoveries, so they immediately enter the public domain. As a result, Earthly researchers are able to use their techniques for interesting applications without having to first license the patent (if the patent-holder is even willing to license), then hope they make enough off their to pay for that outlay.
Compare that to Technology Enabled Clothing, which is basically a patent on clothes with wire clips for your headphones. The boatload of pockets, for the man-about-town with no inclination to carry a nice messenger bag like a filthy commoner, are conspicuously absent from the patent. This patent has been litigated and defended, and the company is receiving royalty income from other companies who came to this obvious step independently. Instead of innovative cross-use, we have a patent whose sole purpose is to raise the cost of doing business for anyone who comes to an obvious function. They could litigate to fight it, but that's a helluva lot more expensive than just paying the license. Of course, that only works for people with the funds to pay the license, so this isn't exactly entrepreneur-friendly. Though there's been some pushback on some classes of patents, it's debatable how far that goes.
Copyright
In the realm of copyright, it's actually a lot easier to see the effects of the monopoly. Just ask Amazon.
[Source]
Works before 1922 were all in the public domain. Works since 1922 have been repeatedly pulled into longer and longer copyright terms. There's a lot of stuff that has been created since these retroactive extensions were created, all of which was initially created with no expectation that copyright would last longer than 56 years. Since we know why copyright was given, we know that theoretically, a longer copyright means more creations, as more people are incentivized to get into the business of creating.
What encourages creativity?
But we didn't see a huge spike in creativity in the '80s, after the terms were extended. I'd argue that's because we'd hit the limit of what copyright could spur - copyright terms, like everything else, have diminishing returns. Disney and the big content companies argued otherwise*, but when it finally came, the explosion of creativity didn't come from them. It came from lower barriers to creation and publishing. Blogs, iTunes, MySpace (for bands), YouTube, and hundreds of other sites cropped up with the sole goal of making it simple and easy for a content creator to share their stuff with the world, with no cost to them. Moreover, this came in the context of exploding piracy and a general lowering of copyright protections (at least in reality, despite Congress's best efforts).
This suggests something to me: At least in the realm of copyrights, people are more concerned with getting their content out there than with controlling it. Copyrights have a place in reassuring high-cost developers (nobody's gonna publish a $200 million game without some protections) but the terms have long since passed the point where that reassurance was necessary. Instead, they're well into the realm when they stifle creativity by allowing great works to stagnate, incapable of tribute or remixing without a close and careful look at fair use (a realm worthy of its own post).
Patents are a bit more complicated, but I think the NASA examples provide a very good counterfactual to think about. Would we have this super-efficient fire hose or the mammogram screening tech if Hubble had been launched by Space-X, or the rocket engine had been developed by Virgin Galactic? Probably not. They'd be patented for the next twenty years, and just getting the license to play around with the tech would likely be prohibitively expensive. I'm more OK with patents, since their terms are currently reasonable and they generally involve higher costs to develop than copyrightable IP, but I'm wary of overextending them, to things like software and business methods, directions they've been heading for years. These do the exact opposite of what we've seen to encourage creativity: they raise artificial barriers to getting an idea out in the wilderness.
Unless we lower those barriers, we're putting an artificial bottleneck on the innovation that could develop from our increasingly inter-connected, knowledge-based society. We're throttling innovation for the sake of people who don't need the help to keep creating. We're way past promoting progress in Science and the useful Arts.
*Sorry for the cached version, but the main site was down. I'm blaming a Disney DDOS, or DDDOS.
Copyright and patent laws are interesting because they are an express command, in the US Constitution, to engage in social engineering. They allow the creation of monopolies to encourage invention and creativity. This has its upsides and downsides, of course. The upside is that owners of the IP get to exploit it for a limited time, and the downside is that only they get to. Since everything is a remix, this sort of restriction is moderately anti-creativity, if we understand that the vast majority of creative people are extremely good at mixing-and-matching things that others have done before. It's presumed that we get more out of it than we lose, though.
But do we? A few examples.
Patents
NASA has a site devoted to telling people how their technology has spun off into things we use every day, a desperate effort to defend their funding. Breast cancer screenings? Thank the guys who sent up a screwy mirror on Hubble. Have a fire in your house? Now it can be put out faster, with less water, thanks to the application of a NASA rocket design. How does this relate to IP, though? Simple: when you work for NASA, you are barred from patenting your discoveries, so they immediately enter the public domain. As a result, Earthly researchers are able to use their techniques for interesting applications without having to first license the patent (if the patent-holder is even willing to license), then hope they make enough off their to pay for that outlay.
Compare that to Technology Enabled Clothing, which is basically a patent on clothes with wire clips for your headphones. The boatload of pockets, for the man-about-town with no inclination to carry a nice messenger bag like a filthy commoner, are conspicuously absent from the patent. This patent has been litigated and defended, and the company is receiving royalty income from other companies who came to this obvious step independently. Instead of innovative cross-use, we have a patent whose sole purpose is to raise the cost of doing business for anyone who comes to an obvious function. They could litigate to fight it, but that's a helluva lot more expensive than just paying the license. Of course, that only works for people with the funds to pay the license, so this isn't exactly entrepreneur-friendly. Though there's been some pushback on some classes of patents, it's debatable how far that goes.
Copyright
In the realm of copyright, it's actually a lot easier to see the effects of the monopoly. Just ask Amazon.
[Source]Works before 1922 were all in the public domain. Works since 1922 have been repeatedly pulled into longer and longer copyright terms. There's a lot of stuff that has been created since these retroactive extensions were created, all of which was initially created with no expectation that copyright would last longer than 56 years. Since we know why copyright was given, we know that theoretically, a longer copyright means more creations, as more people are incentivized to get into the business of creating.
What encourages creativity?
But we didn't see a huge spike in creativity in the '80s, after the terms were extended. I'd argue that's because we'd hit the limit of what copyright could spur - copyright terms, like everything else, have diminishing returns. Disney and the big content companies argued otherwise*, but when it finally came, the explosion of creativity didn't come from them. It came from lower barriers to creation and publishing. Blogs, iTunes, MySpace (for bands), YouTube, and hundreds of other sites cropped up with the sole goal of making it simple and easy for a content creator to share their stuff with the world, with no cost to them. Moreover, this came in the context of exploding piracy and a general lowering of copyright protections (at least in reality, despite Congress's best efforts).
This suggests something to me: At least in the realm of copyrights, people are more concerned with getting their content out there than with controlling it. Copyrights have a place in reassuring high-cost developers (nobody's gonna publish a $200 million game without some protections) but the terms have long since passed the point where that reassurance was necessary. Instead, they're well into the realm when they stifle creativity by allowing great works to stagnate, incapable of tribute or remixing without a close and careful look at fair use (a realm worthy of its own post).
Patents are a bit more complicated, but I think the NASA examples provide a very good counterfactual to think about. Would we have this super-efficient fire hose or the mammogram screening tech if Hubble had been launched by Space-X, or the rocket engine had been developed by Virgin Galactic? Probably not. They'd be patented for the next twenty years, and just getting the license to play around with the tech would likely be prohibitively expensive. I'm more OK with patents, since their terms are currently reasonable and they generally involve higher costs to develop than copyrightable IP, but I'm wary of overextending them, to things like software and business methods, directions they've been heading for years. These do the exact opposite of what we've seen to encourage creativity: they raise artificial barriers to getting an idea out in the wilderness.
Unless we lower those barriers, we're putting an artificial bottleneck on the innovation that could develop from our increasingly inter-connected, knowledge-based society. We're throttling innovation for the sake of people who don't need the help to keep creating. We're way past promoting progress in Science and the useful Arts.
*Sorry for the cached version, but the main site was down. I'm blaming a Disney DDOS, or DDDOS.
(no subject)
Date: 2/4/12 22:15 (UTC)In the case of Copyright, there is something else at stake. As an artist myself, I do see value in it in that what I make artistically, is actually a reflection of my own ideas and statements. If I draw a character to represent my own ideas, and another is created closely enough to mine that my voice is now co-opted by the voice of the copier (such that it is assumed that I drew both), then it gets somewhat too close to forgery in my mind.
That said, the current state of affairs with Copyright has gotten ridiculous as well, such that what is being sought to be copyrighted is less and less about the specific expressions.
(no subject)
Date: 5/4/12 02:59 (UTC)I think public disclosure is one of the fundamental principles underlying the patent system that is missing in this discussion. We create limited monopolies by granting the right to restrict the use and sale of a particular invention not just because we want to promote innovation and individuals and/or companies won't create things without the incentive of a monopoly (an assumption that I have a difficult time believing), but because we want people to publicly disclose their creations so that others can figure out how something was made and make it better, faster, stronger, etc. People and companies have always made things without the incentive of a monopoly. Full stop. They usually protect those inventions by limiting disclosure of how they did it. The patent system is used to incentivize disclosure by granting a limited monopoly over the claimed invention. Its why claim construction and Markman is so important. You only get a monopoly over what you disclosed. Full-stop.
Which brings me to the "diminishing returns". Plenty of people say that we need patents, just for brief periods. This implies a calculation is being made - the cost of the patent is worth the benefit of what it provides. While I grant a sense of reasonableness to these arguments, I haven't seen anyone attempt to provide this calculation.
I don't think its possible to actually provide such a calculation. How do you measure the benefit of disclosure of any patent without the benefit of hindsight? Some patents will be more beneficial than others. How can you predict that without the benefit of hindsight? Who gets to decide if its beneficial or not? Congress? A jury? The Courts? The PTO? Individual patent examiners?
I think the patent term (which is currently 20 years, with a 6 year 'look-back' for damages once you file a complaint for infringement) is society's attempt to (1) reasonably balance the cost of the patent versus the benefit it provides to society by disclosure of the invention and (2) provide an efficient and predictable system that companies and individuals can rely on to make decisions.
Do I think society got it wrong? Is the twenty year term too generous? In my opinion, yes, particularly in the tech industry. Twenty years ago, we didn't even have cell phones. Now we have cell phones that would put a twenty-year-old computer to shame. Would it be possible to conduct studies across industries in order to determine the "most reasonable" patent term for each industry in light of the fact that the purpose of the patent system is to facilitate innovation through disclosure? Sure. But, IMO, any such calculation would necessarily involve variables and assumptions that would make finding the "one true calculation" exceedingly difficult.
At any rate, thanks for the fascinating discussion. Your steam engine link at mises didn't work earlier, but I'm going to try it again later. It sounds very interesting.
Also if you're interested in keeping up with patent law (generally), the blog Patently-O is pretty darn good at keeping track of current events (be they legislative, administrative, or judicial).