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Patents The Courts

Champerty and Other Common Law We Could Use Today 158

Posted by kdawson
from the officious-intermeddling dept.
pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"
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Champerty and Other Common Law We Could Use Today

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  • by Senes (928228) on Wednesday January 27, 2010 @03:30AM (#30914424)
    All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income. Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.
  • by houghi (78078) on Wednesday January 27, 2010 @03:37AM (#30914452)

    Logic overload. What will happen is that the raison d'être will change.

  • by starbugs (1670420) on Wednesday January 27, 2010 @03:54AM (#30914506)

    Software patents stifle innovation [arstechnica.com].
    Yet they are still around.

    Many of us hate software patents [wikipedia.org]. (myself included).
    They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.
    Meanwhile we are happy when some large companies [microsoft.com] get bitten by patents [zdnet.com].

    Besides litigation, how do software patents benefit their holders?

  • by mr_matticus (928346) on Wednesday January 27, 2010 @04:23AM (#30914592)

    Not fewer trade secrets, but a strong economic incentive to elect full disclosure, without the competitive disadvantage that comes with it. Trade secrets actually have become more pervasive as the patent system progressed, because companies have specifically elected against public disclosure.

    Patents help inventors who do not want to jump through the hoops of trade secret protection but also do not want to give away their hard (and often expensive) work. The statutory schemes primarily help smaller players, since the large corporations can afford the contractual and transactional licensing work to ensure that their products remain their products, even in the absence of statutory patent and copyright law. On the other hand, smaller inventors can rely on the basics of that work being put forth by the government--lowering costs significantly.

    Same deal, roughly, with copyrights. It facilitated broad access to creative works without giving away the store, as it were.

    Both systems have problems, but both also work remarkably well and with a great deal of flexibility. Patent and copyright holders have a great deal of choice in how to weigh the balances, exactly as it should be. Some patents are licensed royalty-free; some copyrights are voluntarily abandoned or licensed in a permissive style (e.g. BSD, GPL). Other choose to exercise more control because they can afford to.

    The problem isn't the system; the problem is that like so many other things, market forces don't really interact well with certain social values. Microsoft would go open source in a heartbeat if it meant greater profitability; it's just that there's no economic incentive for voluntarily lowering the bar.

    Now you could say that patent or copyright protection could be extended for those who choose to license in a royalty-free manner. That would provide some downward pressure on prices and proscriptive licensing. You could offer other perks, such as a damage multiplier in infringement cases, such that EFF lawyers and open source projects would earn greater protection.

    But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

  • by phantomfive (622387) on Wednesday January 27, 2010 @04:47AM (#30914664) Journal
    Immoral? I'm not sure that word means what you think it does.

    In an ideal world, people who enjoy an artists work would be able to pay the artist directly for their enjoyment. That way the artist is supported, and people who aren't interested don't have to support what they consider 'junk.' That is how it should be.

    In the real world, copyright is a pretty good way to get that done. Are there problems with it? Yes, and the law is a little behind the latest technology (big surprise). That doesn't mean everything about copyright is bad.

    Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song. Copyright for a reasonable length of time is not immoral, it's a good system.
  • by DrSkwid (118965) on Wednesday January 27, 2010 @04:58AM (#30914700) Homepage Journal

    I sure do hate all those paywalled BSD systems

  • Re:Trial By Combat! (Score:4, Interesting)

    by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Wednesday January 27, 2010 @05:26AM (#30914818)

    I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

    If things get bad enough that you would want to kill someone, as it stands now the attacker might miss a few times with his handgun and hit innocent bystanders. At least it would remove that risk to a degree.

    Makes me wonder if any of the states with their silly old archaic laws still have a dueling law on the books.

  • by WiseWeasel (92224) on Wednesday January 27, 2010 @05:53AM (#30914906)

    Oh, c'mon! At least give Jobs the chance to show you the Jesus pad before you start hatin'...

  • by Mr. Slippery (47854) <tms.infamous@net> on Wednesday January 27, 2010 @11:19AM (#30917658) Homepage

    All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income.

    Exactly.

    Of course, we also need to apply that to absentee landlords and absentee business investors. That pretty much destroys capitalism as we know it. I'm okay with that.

The shortest distance between two points is under construction. -- Noelie Alito

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